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CRIMINAL APPELLATE JURISDICTIONCriminal Appeals Nos. 48 and 80 of 1960. Appeals by special leave from the judgment and orders dated December 11, 1959 and March 2, 1960 of the Bombay High Court Rajkot Now Gujarat High Court In criminal Revision Application No. 100 of 1959. N. Keswani, for the appellants in both the appeals . R. Prom and R.N. Sachthey, for the respondent in both the appeals . The Judgment of the Court was delivered by Wanchoo, J. The two appeals by special leave arise out of the same criminal trial before a magistrate at Porbunder and will be dealt with together. The three appellants along with one more person, namely, Keshavlal Nagjibhai were prosecuted under s. 167 81 of the Sea Customs Act, No. 8 of 1878, hereinafter referred to as the Act . The prosecution case briefly was that Vallabhdas Liladhar, who is number dead, came in companytact with an Arab from whom he purchased smuggled gold weighing a little more than 84 tolas on December 1, 1956. Before this, Vallabhdas Liladhar had borrowed Rs. 3,600/- from the other two appellants and Keshavlal about November 28, 1956, in order to make the purchase. After making the purchase, Vallabhdas Liladhar came to Porbunder to the house of the other two appellants and Keshavlal and informed them of the purchase and wanted their help in the disposal of the gold. The other two appellants namely, Narandas Nagjibhai and Vallabhdas Nagjibhai are brothers. Keshavlal was also the brother of these two appellants. The prosecution case further was that Narandas Nagjibhai asked Vallabhdas Nagjibhai to take the gold to Bantwa and sell it at the rate of Rs. 103/- or so per tola. Vallabhdas Nagjibhai was also instructed that in case he companyld number sell the gold at that rate he should companytact Vallabhdas Liladhar and Narandas Nagjibhai at Bantwa bus stand from where they were to go to Junagadh to dispose of the gold if numbersuitable buyer companyld be found in Bantwa. Consequently Vallabhdas Nagjibhai proceeded to Bantwa by bus on December 2, 1956 in the afternoon. In the meantime information was received by Mehta who was Inspector of Customs about the smuggling of this gold. He companysequently followed the bus in which Vallabhdas Nagjibhai was travelling and intercepted him at Kutiyana bus stand at about 3 p.m. The Deputy Superintendent of Customs was also with Inspector Mehta and Vallabhdas Nagjibhai was taken down from the bus at Kutiyana. On search in the presence of witnesses, five bars of gold weighing about 84 tolas were recovered from his possession. All these five bars bore marks of foreign origin and were taken in possession by the customs authorities after preparing a recovery list. Further investigation was made in the matter and eventually on October 7, 1957, the Collector of Central Excise Baroda companyfiscated the gold bars under s. 167 8 of the Act read with s. 23 of the Foreign Exchange Regulation Act, 1947 and also imposed a penalty of Rs. 1,000/- each on the three appellants and a penalty of Rs. 500/- on Keshavlal. Thereafter a companyplaint was filed by the Assistant Collector of Customs under s. 167 81 of the Act before the magistrate at Porbunder on June 27. 1958. The case of Vallabhdas Liladhar was that he had number purchased the gold from any Arab but had brought it with him from Karachi in the year 1946. Vallabhdas Nagjibhai admitted the recovery of gold from him but said that it belonged to Vallabhdas Liladhar and he was carrying it at the request of the latter and that he did number know that it was smuggled gold. Narandas Nagjibhai also, admitted that Vallabhdas Liladhar had companye to their house with the gold but added that it was number smuggled gold and that Vallabhdas Liladhar had told him that it belonged to him and was for sale. Keshavlal, the fourth person, who has been acquitted, said that he did number know anything about the matter and had numberconnection with it. It may be added that the three appellants had made statements before the customs authorities and those statements were also put in evidence in support of the prosecution case. In those statements, they practically admitted the prosecution case that the gold was smuggled gold and they were trying to dispose it of. The magistrate companyvicted all the four persons under s. 167 81 of the Act and sentenced them to rigorous imprisonment for six months and a fine of Rs. 500/- He relied on the statements made by the appellants and Keshavlal before the customs authorities and also on the evidence produced before him, which was mainly about the recovery of gold. All the four companyvicted persons appealed to the Sessions Judge. The appeal was heard by the Additional Sessions Judge, Porbunder who acquitted Keshavlal. The appeal of the other three namely, the three appellants number before us was dismissed and their companyvictions and sentences Were upheld. The three appellants then went in revision to the High Court. The High Court rejected the revisions of Vallabhdas Liladhar and Vallabhdas Nagjibhai summarily. The revision application of Narandas Nagjibhai was admitted but was eventually dismissed. The three appellants then applied for leave to appeal to this Court which was refused. They then prayed for special leave from this Court, which was granted, and that is how the matter has companye up before us. Vallabhdas Liladhar, one of the appellants in Cr. A 48 of 1960, is dead. So far therefore as he is companycerned, his appeal abates. It only remains to companysider the appeal of Vallabhdas Nagjibhai Cr.A.48 and Narandas Nagjibhai Cr.A.80 . Before however we companysider the points raised before us on behalf of the appellants we may refer to the circumstances which have been found established by all the companyrts and on the basis of which the companyviction of the appellants has been upheld. These circumstances are-- Though the price of gold at the relevant time was over Rs. 105/- per tola, the appellant were intending to sell these gold bars at a lower price of about Rs. 103/- per tola. The two appellants were working as goldsmiths at Porbunder and there was numberreason why the gold had to be sent elsewhere for disposal. As Porbunder is a fairly large town, there was numberreason why the gold companyld number be sold in the market at Porbunder. The two appellants displayed undue haste in the disposal of gold. The surreptitious manner in which the gold bars were kept by Vallabhdas Nagjibhai as shown at the time of recovery shows that the appellants knew that they were dealing with smuggled gold. The amount of Rs. 3,600/- was advanced to Vallabhdas Liladhar but the entries in the account book of the appellants were made in the name of the brother of Vallabhdas Liladhar who is the brother-in-law of the two appellants. The markings on the gold made it quite clear that it was of foreign origin and the two appellants companyld number be unaware of this, particularly as they work as goldsmiths. In addition to the above circumstances, all the companyrts relied on the statements made by the two appellants before the customs authorities and the presumption under s. 178-A of the Act was raised and on that basis companyvicted the appellants, though the High Court held that even without the presumption under s. 178-A the evidence was sufficient to companyvict the appellants. Learned companynsel for the appellants has very properly number challenged the companycurrent findings of fact by all the companyrts. He has raised four points for our companysideration, which are these-- The statements made to the customs authorities were inadmissible in evidence as they were number properly proved. The statement made before the Collector of Customs were inadmissible in evidence under ss. 24 and 25 of the Indian Evidence Act. As the gold had already been companyfiscated and penalty had been imposed under s. 167 8 of the Act, there companyld be numberfurther trial in a criminal companyrt in view of s. 186 of the Act. The ingredients of s. 167 81 are number satisfied in this case. Re. 1 . So far as the first point is companycerned, the only argument is that the lawyer who signed the statements made before the customs authorities was number produced to prove them, and therefore the statements cannot be held to have been properly proved. It is however clear that the statements were number only signed by the lawyer of the appellants but also by the appellants. In their statements in companyrt, the appellants admitted that they had signed the statements, though they said. that they did number know what the statements companytained and they signed it on being asked by their lawyer. This part of the statements of the appellants has number been believed by the companyrts below and in our opinion rightly. As the statements bore the signature of the appellants which are admitted, they must be held to be proved by this admission and it was number further necessary to examine the lawyer who signed the statements along with the appellants. The companytention on this head must there fore fail. Re. 2 . As to the second point, we are of opinion that s. 25 of the Indian Evidence Act has numberapplication on the facts of the present case which are on all fours with the facts in The State of Punjab v. Barkat Ram 1 . In similar circumstances it was held by this Court in that case that customs officers are number police officers and statements made to them were number inadmissible under s. 25. Section 24 would however apply, for customs authorities must be taken to be persons in authority and statements would be inadmissible in a criminal trial if it is proved that they were caused by inducement, threat or promise. But the finding of all the companyrts is that the statements were number made on account of any inducement threat or promise as required by s. 24 of the Indian Evidence Act. In the face of this finding, therefore, it cannot be said that the statements are inadmissible under s. 24 of the Indian Evidence Act. Re. 3 . Next the appellants rely on s. 186 of the Act. which reads as follows -- The award of any companyfiscation, penalty or increased rate of duty under this Act by an officer of Customs shall number prevent the infliction of any punishment to which the person affected thereby is liable under any other law. It is urged that when s. 186 lays down that the award of any companyfiscation, penalty or increased rate of duty under the Sea Customs Act shall number prevent the infliction of any punishment to which the person affected thereby is liable under any other law, it necessarily forbids by implication infliction of any punishment to which 1 1962 3 S.C.R. 338. the person affected thereby is liable under the Sea Customs Act itself. In this companynection our attention is drawn to certain observations in Leo Roy Frey v. The Superintendent District Jail 1 . It is true that in that case this Court referred to s. 186 of the Act but that case was number directly companycerned with the question whether a prosecution under s. 167 81 of the Act is permissible after the award of companyfiscation, penalty or increased rate of duty under s. 167 8 of the Act in view of s. 186. Clause 81 in s. 167 was introduced by the Amending Act No. 21 of 1955. Before that there were 80 clauses in the section, and the scheme of those clauses was that a person companyld either be dealt with by the award of companyfiscation, penalty or increased rate of duty, or by a prosecution before a magistrate. It was in those circumstances that s. 186 provided that the award of companyfiscation, penalty or increased rate of duty would number bar infliction of any other punishment under any other law. The intention of the legislature by this provision in s. 186 was clearly to allow a prosecution under any other law even though there might be award of companyfiscation, penalty or increased rate of duty under the Act. Section 186 was thus meant for permitting prosecutions in addition to action under the Act in the shape of companyfiscation, penalty or increased rate of duty it was never intended to act as a bar to any prosecution that might be permissible after the award of companyfiscation, penalty or increased rate of duty. It was merely an enabling section and number a barring section and seems to have been put in the Act ex abundanti cautela. When however, cl. 81 was introduced in s. 167, it became possible in some cases where goods had been companyfiscated and penalty inflicted under the Act by the customs authorities to prosecute persons also under cl. 81 of the Act. That however would number change the nature of the provision companytained in s. 186 which was an enabling provision and number a barring provision. If the intention was to bar prosecutions in companysequence of the award companyfiscation, penalty or increased rate of duty, the words of s. 186 would have been very different. We cannot therefore read in s. 186 a bar by implication to a prosecution under the Act simply because s. 186 enables prosecution under any other law. In this view of the matter, s. 186 is numberbar to the prosecution for an offence under the Act in companynection with a matter in which the award of companyfiscation, penalty or increased rate of duty has been made. Re. 4 . Next it is companytended that the ingredients of cl. 81 of s. 167 are number satisfied inasmuch as it is number proved that the intention of the appellants was to defraud the government of any duty payable on the gold which was the subject matter of the charge in this case or to evade any prohibition or restriction for the time 1 1958 S.C.R. 822, 827. being in force. It is true that before cl. 81 can apply it has to be proved inter alia that the person charged thereunder with possession of any dutiable or prohibited or restricted goods or companycerned in carrying, removing, depositing, keeping or companycealing such goods, has the intention of defrauding the government of any duty payable thereon or of evading any prohibition or restriction thereon for the time being in force. So it is said that the prosecution has failed to prove by positive evidence that the intention was to defraud the government of the duty payable on the gold in this case or to evade the prohibition or restriction on the import thereon for the time being in force. We have number been able to understand this argument at all. Once it is proved that the gold is smuggled gold, it follows that it was brought into the companyntry without payment of duty or in violation of the prohibition or restriction in force. and whosoever brought it and whosoever dealt with it thereafter knowing it to be smuggled in the manner provided in the section must be held to have the intention of evading the payment of duty or violating the prohibition or restriction. There is numberforce in this companytention also. Lastly it is urged that the substantive sentence of imprisonment in the case of the two appellants before us may be reduced to the period already undergone, particularly, as the appellants, have been on bail since March 1960 and it would number be in the interest of justice to send them back to jail for a short period after four years when about half the sentence has already been served out. We however see numberreason to interfere with the sentence in cases of this nature.

COURT OF APPEAL FOR ONTARIO CITATION: Fontaine v. Canada (Attorney General), 2018 ONCA 693 DATE: 20180823 DOCKET: C63804 Hoy A.C.J.O., Juriansz and Miller JJ.A. BETWEEN Larry Philip Fontaine, et al. Plaintiffs and The Attorney General of Canada, et al. Defendants/Respondents In the Matter of the Request for Directions by IAP Claimant H-15019 Pertaining to St. Anne’s Indian Residential School Requestor/Appellant In the Matter of the Request for Directions by Edmund Metatawabin and by IAP Claimant K-10106 Pertaining to St. Anne’s Indian Residential School Requestors/Appellants Proceedings under the Class Proceedings Act , 1992, S.O. 1992, C.6 Margaret L. Waddell and Fay K. Brunning, for the appellants Claimant H15019, Claimant K-10106 and Edmund Metatawabin Catherine A. Coughlan and Brent Thompson, for the respondent Attorney General of Canada Peter C. Wardle, for the intervenor Diane Soroka, David Schulze and Maryse Décarie-Daigneault, for the Independent Counsel Heard: March 13, 2018 On appeal from the judgment of Justice Paul M. Perell of the Superior Court of Justice, dated April 24, 2017. COSTS ENDORSEMENT [1] We have received and reviewed the submissions of the parties and Independent Counsel regarding the costs of the appeal. [2] Canada, which was successful on the appeal, does not seek costs against the appellants. Further, it has dropped its prior request that appellants’ counsel be ordered to pay costs personally. [3] Although unsuccessful on the appeal, the appellants seek costs against Canada on a partial indemnity scale. The appellants argue that costs are warranted given what they characterize as the unique circumstances of, and public interest underlying, the case. [4] Independent Counsel supported the appellants’ position on appeal. They submit that they should also be entitled to costs. They argue that they provided the court with helpful background information on the Indian Residential Schools Settlement Agreement (2006) and made different submissions than the appellants. [5] Canada opposes the award of costs to the appellants and Independent Counsel. They submit that costs are not appropriate in this case because the issues on appeal were predominantly procedural, the issues were largely settled in earlier litigation in which several of the litigants were involved, and the conduct of the appellants’ counsel is incongruous with a costs award. [6] This court upheld the order of the administrative judge. He dismissed the appellants’ Requests for Directions without costs . We see no reason why a different costs disposition should prevail on appeal. The nature of the issues raised on this appeal do not warrant a costs award in favour of the appellants or Independent Counsel. [7] Accordingly, there shall be no costs of the appeal. “Alexandra Hoy A.C.J.O.” “R.G. Juriansz J.A.” “B.W. Miller J.A.”

Arising out of SLP Crl. No.5190/2006 RAVEENDRAN, J. Leave granted. The appellant herein challenges the order dated 21.7.2006 passed by the Bombay High Court in Crl. Application No.5350 of 2005, rejecting his application for bail. An FIR relating to companynterfeit stamps and stamp papers known as Telgi case was registered as C.R. No.135 of 2002 at Bund Garden Police Station, Pune. A charge-sheet was filed on 3.9.2002 followed by a supplementary chargesheet dated 25.11.2002. On 22.12.2002, approval was granted for applying Sections 3 2 , 3 5 and 24 of the Maharashtra Control of Organised Crime Act, 1999 MCOC Act for short in regard to the said case. The Special Investigation Team SIT for short created by the State Government to investigate into the said companynterfeit stamps case, filed a charge-sheet under the MCOC Act, numbered as Special Case No.2 on 27.3.2003. Supplementary chargesheets were filed on 15.9.2003 and 3.2.2004. The investigation of the case with several companynected cases, was transferred to the CBI by order of this Court dated 15.3.2004. The appellant was working as a Joint Commissioner of Police, Crime , Mumbai, from 21.3.2002 to 17.3.2003. The investigation disclosed involvement of the appellant in the companynterfeit stamp case, he was arrested on 7.11.2003. He was arrayed as accused No.59 in the supplementary chargesheet filed on 3.2.2004 and was charged with offences under Sections 120B, 216, 218, 221 IPC read with Sections 3 2 , 3 5 and 24 of MCOC Act, and Sections 7 and 13 1 d of the Prevention of Corruption Act, 1988. Ever since then he has been in custody, initially in Police custody for some time and later in judicial custody, except for a short period when he was on medical bail. According to the case of the prosecution, the principal accused Abdul Karim Telgi was involved in printing and distribution of companynterfeit stamps stamp papers on a very large scale, and his organized crime syndicate included printers, companyputer operators and even Police officials and public servants and R.S. Sharma Commissioner of Police , the appellant Joint Commissioner of Police - Crime , Pradeep B. Sawant Deputy Commissioner of Police - Crime Detection , Dattatray Y. Dal Inspector in Charge of the Crime Branch Unit V and Dilip Kamat API, attached to Crime Branch Unit-V who are accused number 60, 59, 65, 50 and 44 respectively, became part of such crime syndicate. The allegations against the appellant, in brief, are that when the Commissioner requested him to verify certain addresses in Mumbai where companynterfeit stamps were reportedly stored, the appellant fabricated an antidated letter dated 10.6.2002 depicting that action was taken that when large quantity of companynterfeit stamps and stamp papers were seized between 8.6.2002 and 15.6.2002 by Pune Police, senior Police Officers at Mumbai including the appellant, with the intention of saving Telgi and his associates, did number take immediate follow up action that Dilip Kamat A-44 in companynivance with the Appellant, Pradeep B. Sawant and Dattatray Y. Dal hatched a criminal companyspiracy to extract money from Telgi by agreeing to facilitate his unlawful activities that in pursuance of such scheme, the appellant transferred the Christopher Murder case Sahunagar Police Station R. No.123/2001 involving Telgi and his accomplices to Crime Branch Unit-V, to ensure that numberother Police Station got custody of Telgi that when Crime Branch Unit-V obtained the custody of Telgi on 28.10.2002, he was provided with all companyforts and was allowed to carry on his unlawful activities and take steps to dispose of his ill-gotten properties acquired from out of the funds of the organized crime syndicate that just before the Police custody remand period of Telgi in Christopher Murder case was to expire on 28.11.2002, the appellant deliberately issued an order dated 22.11.2002 transferring several other cases against Telgi registered at other Police Stations to Crime Branch Unit-V, so as to ensure that the custody of Telgi remained with Crime Branch Unit-V, in particular with Dilip Kamat and Dattatreya Dal so that Telgi companyld companytinue his illegal businesses unhindered that while in Police custody, Telgi was lodged in luxurious hotels and even at his residence and permitted to visit his native place and were provided access to telephone, mobile phone etc. that even though the cases relating to Telgi, having regard to the nature of offences involved, had to be entrusted to the Economic Offences Wing, appellant transferred them to Crime Branch Unit-V without the approval of the Police Commissioner that the appellants action was aimed at ensuring that the investigation was done only by Crime Branch Unit-V, where Dilip Kamat was working, to ensure deficiency in investigation to sabotage the case and permit Telgi and his gang to wriggle out that in view of the poor and perfunctory investigation, in the cases transferred to Crime Branch Unit-V, Telgi was granted bail in several cases that the appellant as a member of the Special Task Force formed by the Government had directed Police Inspector Bhat of MCOC Cell to scrutinize the case papers of Telgi and submit a report, but showed undue haste in transferring the cases to Crime Branch Unit-V, without waiting for the reports which were submitted by Inspector Bhat on 28.11.2002 and 6.12.2002 that when Police Inspector Zahid of Cyber Cell, Mumbai Crime Branch had submitted a good and sound report, instead of companyrelating the report with other cases and motivating the officers, the appellant expressed his displeasure with the inquiry by Zahid and suppressed the findings evidence that the appellant with a view to help Telgi, gave approval to fabricate the panchnama dated 12.1.2003 relating to the recovery of huge quantity of companynterfeit stamps stamp papers at Bhiwandi at the instance of accused Shabir Ahmed Shaikh, by describing him as an associate of Ram Ratan Soni though he was a member of Telgis crime syndicate and that the Appellant received a huge sum Rs.15 lakhs from Telgi for various favours shown. The Special Judge, Pune, rejected Appellants bail application by order dated 22.2.2005. The High Court rejected his application for bail by order dated 21.7.2006. The High Court held that CBI had made out prima facie the involvement of the appellant with Telgis crime syndicate and therefore, it companyld number be said that the appellant was number guilty of offences punishable under the MCOC Act. Sri Shekhar Naphade, learned senior companynsel for the appellant submitted that the appellant has been falsely implicated in the Telgi case and that he was neither a member of Telgis crime syndicate number had he, in any way, helped Telgi or his associates. Learned companynsel for the appellant also took us through the material in support of his companytention that there were numberreasonable grounds for believing that the appellant was guilty of any offence. He also submitted that R.S. Sharma, Pradeep Sawant, and Dattatray Dal against whom similar allegations have been made, have already been released on bail. It was also submitted that the maximum sentence for an offence under Section 24 of MCOC Act for rendering any help or support, in the companymission of an organised crime by a member of an organized crime syndicate, or for abstaining from taking lawful measures under the Act, was three years and that the appellant has already been in custody for three years and four months. Sri Sushil Kumar, learned senior companynsel appearing for the CBI, also took us through the relevant material in support of his companytention that the appellant companyspired, abetted and facilitated the companymission of an organized crime in the Telgi case, for which the punishment can extend upto life imprisonment under Section 3 2 of MCOC Act and therefore, he should number be enlarged on bail. We find that R.S. Sharma, Commissioner of Police, Pradeep B. Sawant, Dy. Commissioner of Police and Dattatray Dal, Police Inspector, against whom somewhat similar allegations are made, have already been released on bail. The High Court has found that the material disclosed an intention on the part of the appellant to help or support the companymission of organized crime by Telgi and his associates by ensuring that the custody of Telgi remained with Crime Branch Unit-V and Telgi got all companyforts and facilities while in custody that the appellant permitted, and even directed deficient investigation to sabotage the case against Telgi and his associates and that a sum of Rupees fifteen lakhs might have been received by the appellant and number Rs.72 lacs, as stated in the remand application from the agents of Telgi and that the appellant might have played a role in preparing of a panchnama dated 12.1.2003, to companyer up Telgi, by showing Shabir Ahmed Shaikh as an associate of Ram Ratan Soni. On the basis of the above, the High Court has held that it cannot be said that the appellant is number guilty of an offence punishable under the MCOC Act. But the High Court has number held that the material prima facie disclose that the appellant companyspired or abetted or knowingly facilitated companymission of an organized crime, punishable under section 3 2 of the MCOC Act. The appellant has already been in jail for more than three years which is the maximum period of punishment that companyld be imposed under Section 24 of the MCOC Act. Whether the involvement of Appellant goes beyond the scope of section 24 of the Act, to fall under section 3 2 of the Act, is an issue yet to be decided.

Judgment of the Court (Sixth Chamber) of 14 May 1998. - Council of the European Union v Lieve de Nil and Christiane Impens. - Appeal - Officials - Internal competition - Measures implementing a judgment annulling a decision - Promotion to a higher category following a competition with no retroactive effect - Material and non-material damage. - Case C-259/96 P. European Court reports 1998 Page I-02915 Summary Parties Grounds Decision on costs Operative part Keywords 1 Officials - Career - Promotion to a higher category - Competition required - Appointment taking effect from a date prior to success in a competition - Not permissible (Staff Regulations, Art. 45(2)) 2 Actions for annulment - Judgment annulling a measure - Effects - Obligations of the administration - Compensation for damage, suffered by the applicant, linked to the annulled measure and continuing after the annulment (EC Treaty, Arts 176 and 215, second para.) 3 Officials - Non-contractual liability of the institutions - Conditions - Fault on the part of the administration - Damage - Causal link - Assessment of non-material damage - Criteria 4 Appeals - Pleas in law - Plea alleging infringement of Article 48(2) of the Rules of Procedure of the Court of First Instance prohibiting the introduction of new pleas in the course of proceedings - Account taken by the Court of First Instance of the replies to a question raised as a measure of organisation of procedure - Whether permissible (Rules of Procedure of the Court of First Instance, Arts 48(2) and 64(3)) 5 Appeals - Pleas in law - Inadequate grounds - No details as to the criteria adopted by the Court of First Instance in order to fix the amount of the compensation awarded for damage suffered - Appeal well founded Summary 1 In accordance with Article 45(2) of the Staff Regulations, an official may be promoted from one category to another only on the basis of a competition. Since success in a competition is thus a conditio sine qua non of appointment in a higher category, that condition must be satisfied on the date on which the appointment takes effect. Article 45(2) of the Staff Regulations therefore precludes an appointment taking effect from a date prior to success in a competition. 2 Article 176 of the Treaty requires not only that the administration take the necessary measures to comply with a judgment of the Court but that it make good further damage which may be caused by the unlawful measure which has been annulled, subject to the conditions laid down in the second paragraph of Article 215 of the Treaty. Thus Article 176 of the Treaty does not make compensation for the damage dependent on the existence of a new fault distinct from the original unlawful measure which has been annulled, but provides for compensation for the damage which results from that measure and which continues after its annulment and compliance by the administration with the judgment whereby it was annulled. 3 For the liability of the Community to be incurred in the case of a claim for damages brought by an official, a number of conditions must be satisfied as regards the illegality of the conduct of the institution of which he complains, the actual harm suffered and the existence of a causal link between that conduct and the damage alleged to have been suffered. For the purposes of assessing any non-material damage, aggravating circumstances characterising the specific situation must be taken into account. 4 Under Article 48(2) of the Rules of Procedure of the Court of First Instance, the introduction of any new plea in law in the course of proceedings is prohibited, unless it is based on matters of law or of fact which come to light in the course of the procedure. The fact that the Court of First Instance took into account replies from one of the parties to questions raised by way of measures of organisation of procedure pursuant to Article 64(3) of the Rules of Procedure of the Court of First Instance, the other party having had an opportunity at the hearing to state its views on that point, is not contrary to Article 48(2). 5 It is for the Court of First Instance alone to assess, within the confines of the claim, the method and extent of compensation for the damage. However, in order for the Court of Justice to be able to review the judgments of the Court of First Instance, those judgments must be sufficiently reasoned. That is not the case where, in a judgment, the Court of First Instance has not set out the criteria taken into account for the purposes of determining the amount of the compensation awarded for the damage suffered. Parties In Case C-259/96 P, Council of the European Union, represented by Jean-Paul Jacqué, Director of its Legal Service, Diego Canga Fano and Thérèse Blanchet, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Alessandro Morbilli, Manager of the Legal Affairs Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,$ appellant, APPEAL against the judgment of the Court of First Instance of the European Communities (Second Chamber) of 26 June 1996 in Case T-91/95 De Nil and Impens v Council [1996] ECR-SC II-959, seeking to have that judgment set aside, the other parties to the proceedings being: Lieve de Nil, an official of the Council of the European Union, residing in Wolvertem (Belgium), and Christiane Impens, an official of the Council of the European Union, residing in Brussels, represented by Jean-Noël Louis, Thierry Demaseure, Véronique Leclercq and Ariane Tornel, of the Brussels Bar, with an address for service in Luxembourg at the offices of Fiduciaire Myson SARL, 30 Rue de Cessange, THE COURT (Sixth Chamber), composed of: H. Ragnemalm, President of the Chamber, R. Schintgen, G.F. Mancini, J.L. Murray and G. Hirsch (Rapporteur), Judges, Advocate General: M.B. Elmer, Registrar: H. von Holstein, Deputy Registrar, having regard to the report of the Judge-Rapporteur, after hearing the Opinion of the Advocate General at the sitting on 15 July 1997, gives the following Judgment Grounds 1 By application lodged at the Court Registry on 23 July 1996, the Council of the European Union brought an appeal, pursuant to Article 49 of the EC Statute and the corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice, against the judgment of the Court of First Instance of 26 June 1996 in Case T-91/95 De Nil and Impens v Council [1996] ECR-SC II-959 (`the judgment under appeal') by which that Court annulled the Council's decisions of 9 and 15 June 1994 rejecting the applicants' requests for compensation dated 9 February and the decision of 4 January 1995 rejecting the applicants' complaint of 6 September 1994 and ordered the Council to pay to each applicant the sum of BFR 500 000 as compensation for combined material and non-material damage suffered. 2 It appears from the judgment under appeal that on 4 December 1990 the applicants were admitted to take part in the tests for Internal Competition B/228 for the purpose of filling 15 administrative assistant posts in Grade B 5 by enabling Grade C 1 officials to obtain `upgrading' of their posts to that grade. Their names did not appear on the list of successful candidates and the applicants, with seven other persons affected, brought an action before the Court of First Instance, which annulled `the steps taken following the decisions admitting candidates to the tests in Internal Competition B/228 ...' (Case T-22/91 Raiola-Denti and Others v Council [1993] ECR II-69). 3 Following that judgment, which acquired the force of res judicata, the Council decided, first, to maintain the decisions adopted for the purpose of reclassifying the 15 candidates who had been successful in Competition B/228 with effect from 1 January 1991 and, secondly, to publish a notice of Internal Competition B/228a designed to fill six administrative assistant posts in Grade B 5 by way of the upgrading of Grade C 1 posts. The nature and marking of the tests for Competition B/228a were identical to those for Competition B/228. According to Notice of Competition B/228a, the candidates who had been admitted to take part in the tests for Competition B/228 could be admitted to take part in the tests. 4 After the tests, in which they took part, had taken place, the applicants were placed on the list of successful candidates. Their posts were each reclassified in Grade B 5 with effect from 1 January 1994. The applicants nevertheless considered that despite that reclassification the Council had to be regarded as having not in fact adopted appropriate measures to make good the damage caused by the refusal of the Selection Board in Competition B/228 to place them on the list of successful candidates in that competition, inasmuch as that refusal had deprived them of reclassification with effect from 1 January 1991. 5 On 9 February 1994 they therefore submitted a request on the basis of Article 90(1) of the Staff Regulations of officials and other servants of the European Communities (`the Staff Regulations') for compensation for the damage which they had suffered as a result of the adoption of the irregular decision of the Selection Board in Competition B/228. 6 Since that request and their complaint pursuant to Article 90(2) of the Staff Regulations were rejected by the Council's decisions of 9 and 15 June 1994 and 4 January 1995, on 29 March 1995 the applicants brought an action before the Court of First Instance seeking, first, the annulment of those decisions and, second, an order that the Council pay the sum of BFR 500 000 to each applicant for material damage suffered and ECU 1 to each applicant as symbolic damages for non-material damage suffered. 7 The Court of First Instance held, at paragraph 44, that the refusal by the Council to adopt the specific measures which would have ensured that the applicants were put on an equal footing with their colleagues who had been successful in Competition B/228 with regard to the date on which their reclassification took effect had been adopted in breach of Article 176 of the EC Treaty. 8 It stated in that respect: `38 In refusing to reclassify the applicants retroactively from 1 January 1991 like the successful candidates in Competition B/228, the Council caused them to lose their chances of earlier promotion, within the periods prescribed in the Staff Regulations, to Grade B 4 and then of earlier promotion to Grade B 3, and of seeing their careers develop in the same conditions as the careers of the candidates who had been successful in Competition B/228. As the applicants point out, without being gainsaid by the Council, 11 of the 15 successful candidates in Competitition B/228, who were reclassified in 1991, had already been promoted to Grade B 3 by 1 January 1996, of whom three were, in 1996, eligible for promotion to Grade B 2, while the four other successful candidates had been promoted by that same date to Grade B 4; three of the latter were, in 1996, eligible for promotion to Grade B 3. In response to a written question from the Court of First Instance, The Council acknowledged that if the applicants had been reclassified in Grade B 5 in January 1991 they could themselves, pursuant to Article 45(2) of the Staff Regulations, have been eligible for promotion to Grade B 4 in July 1991 and to Grade B 3 on 1 July 1993, the date on which their net remuneration would have exceeded the remuneration then actually received by them. 39 The applicants therefore suffered a distortion in the prospects for the development of their careers as compared with those of the successful candidates in Competition B/228, owing to the Council's failure to adopt the appropriate measures to put those candidates who, having first taken part in Competition B/228, were eventually successful candidates in Competition B/228a, on an equal footing with the successful candidates in Competition B/228 with regard, in particular, to the conditions of the reclassification to which they were just as entitled as the successful candidates in Competition B/228. Once Competition B/228a had been organised, the purpose of which, as the defendant institution itself confirmed, was to safeguard the rights that had been infringed by the unlawful nature of Competition B/228, the Council could have provided that reclassification of the successful candidates would take effect on the same date as the reclassification of the successful candidates in Competition B/228. Since it did not provide for that solution in advance, once it had received the applicants' requests to that effect, it should have withdrawn the reclassification decisions as of 1 January 1994 in order to proceed, with a view to equal treatment, to reconstitute the careers of the persons concerned, so as to ensure that their seniority in Category B was equal to the seniority in that category of the successful candidates in Competition B/228 ...' 9 Finding that the candidates who were successful in the tests organised on the basis of Notices B/228 and B/228a had to be regarded as the successful candidates in a single competition, the Court of First Instance concluded, in paragraph 42, that the Council was therefore bound to ensure that the successful candidates in the tests taken on the basis of Notice B/228a should receive the same treatment as the successful candidates in the tests taken on the basis of Notice B/228, by giving the reclassification of the former the same effects as that of the latter. 10 As regards the damage actually suffered following the breach found, the Court of First Instance held: `46 The applicants have not established the existence of the damage they claim to have suffered, consisting in the difference between the remuneration received by them from 1 January 1991 to 1 January 1994 and the remuneration that they would have received during that period if they had been reclassified in Category B 5 on 1 January 1991. As is made clear by evidence produced by the Council in response to a written question from the Court of First Instance and not disputed by the applicants, the latter did not in fact suffer any net loss of remuneration because of the loss of fixed-rate allowance, the "secretarial allowance", to which they were entitled before their reclassification. 47 The applicants have, however, established the existence of a right to compensation for the damage suffered as a result of the fact that they were not reclassified in Category B at the same time as the candidates who were successful in Competition B/228, inasmuch as, although they would not have had a right to promotion after their reclassification, they have, at all events, lost the opportunity of seeing their careers develop in the future in a manner comparable to the careers of the candidates who were successful in Competition B/228 ... 48 They claim in addition to have suffered non-material damage that they evaluate at 1 symbolic ecu. 49 As regards such damage, the Court of First Instance considers that neither failure in a competition nor preparation for subsequent tests may in principle be regarded as likely to cause non-material damage in respect of which damages are automatically payable, a fortiori because in this case the applicants have not established that the fact that their non-inclusion on the list of successful candidates in Competition B/228 was due to the irregularities that led to its annulment. As regards the damage alleged to have been caused by the Council's refusal to accede to their request for compensation and their subsequent complaint, that is part and parcel of the same damage in respect of which the Council refused to pay compensation. It cannot, consequently, constitute separate damage giving rise to separate compensation. 50 The Court of First Instance considers that the non-material damage actually suffered by the applicants is that linked to the state of prolonged uncertainty in which they found themselves as regards the development of their careers. In that respect the specific circumstances of the case were marked by significant irregularities in the way the tests organised on the basis of Notice B/228 were conducted, by a serious impairment of the applicants' entitlement to see the tests conducted properly and by the fact that the Council's refusal to put them on an equal footing with their colleagues who had been reclassified on 1 January 1991 took place at a date when they had already been successful in the tests organised on the basis of Notice B/228a. 51 The Court of First Instance evaluates the combined material and non-material damage suffered by each of the applicants ex aequo et bono at BFR 500 000 (see Cases T-82/91 and T-3/92 Latham v Commission [1994] ECR-SC II-61 and 83). The Council must therefore be ordered to pay that amount to each applicant.' 11 In the present appeal the Council puts forward six pleas in law: - infringement of Article 176 of the Treaty; - infringement of Article 30 of the Staff Regulations; - breach of the principle of equal treatment; - infringement of Article 45(2) of the Staff Regulations; - infringement of Article 48 of the Rules of Procedure of the Court of First Instance; and - absence of the legal conditions giving rise to liability and breach of the principle of proportionality. First four pleas in law 12 In its first four pleas in law, which it is appropriate to examine together, the Council essentially complains that the Court of First Instance found fault with it for having misapplied the judgment in Raiola-Denti and Others v Council, cited above, when it decided to organise a second competition and reclassify the successful candidates in Category B 5 with effect from 1 January 1994. 13 The Council submits, in this connection, that in order to safeguard the rights of candidates that have been infringed by irregularities in a competition, it suffices, according to the case-law of the Court (Case 144/82 Detti v Court of Justice [1983] ECR 2421; Case C-242/90 P Commission v Albani and Others [1993] ECR I-3839, and Case C-412/92 P Parliament v Meskens [1994] ECR I-3757), for the appointing authority of the institution concerned to organise a new competition at a level equivalent to that of the first. The measures taken by the Council to apply Raiola-Denti and Others v Council, cited above, are in conformity on every point with that case-law. 14 In that context, the Council challenges, in particular, the finding by the Court of First Instance in paragraphs 38 and 39 of the judgment under appeal to the effect that the applicants' reclassification should have taken effect retroactively from the same date as that resulting from Competition B/228, that is to say from 1 January 1991. It considers that that finding impinges on its powers under Article 176 of the Treaty, according to which the institution whose act has been declared void is to be required to take the necessary measures to comply with the judgment, and indicates that in this context it has a margin of discretion. 15 Similarly, the Council claims that retroactive classification as from 1 January 1991 would be contrary to Article 45(2) of the Staff Regulations, according to which `[an] official may be transferred from one service to another or promoted from one category to another only on the basis of a competition', and would also breach the principle of equal treatment, since the six candidates who were successful in Competition B/228a failed the first Competition B/228. 16 It must be pointed out that the Court has held that, by virtue of Article 176 of the Treaty, it is for the competent institution to take, as regards the person concerned, having due regard to the Community rules applicable, such decision as will provide due compensation for the damage which he has suffered as a result of the decision which has been annulled (see Case 76/79 Könecke v Commission [1980] ECR 665, paragraph 15). 17 It appears from paragraphs 3 and 4 of the judgment under appeal that, following the judgment in Raiola-Denti and Others v Council, cited above, which annulled the steps taken following the decisions admitting candidates to the tests in Internal Competition B/228, the Council decided, first, to maintain the decisions classifying the 15 candidates who had been successful in Competition B/228 with effect from January 1991 and, secondly, to organise Internal Competition B/228a for candidates who had failed the tests in Competition B/228. The nature and marking system for the tests in Competition B/228a were identical to those of Competition B/228. In December 1993 the applicants, who had passed the tests, were included on the list of successful candidates. The post of each applicant was reclassified in Category B 5 with effect from 1 January 1994. 18 As regards, first, the date of reclassification, it must be noted that, in accordance with Article 45(2) of the Staff Regulations, an official may be promoted from one category to another only on the basis of a competition. Since success in a competition is thus a conditio sine qua non of appointment in a higher category (see Case 28/72 Tontodonati v Commission [1973] ECR 779, paragraph 8), that condition must be satisfied on the date on which the appointment takes effect. Article 45(2) of the Staff Regulations therefore precludes an appointment taking effect from a date prior to success in a competition. 19 It follows that in this case, since the applicants did not pass a competition until the end of 1993, their reclassification with effect from 1 January 1991 was precluded. The finding to the contrary contained in paragraphs 38 to 44 of the judgment under appeal must therefore be regarded as erroneous. It is not, nevertheless, such as to cause per se the judgment under appeal to be set aside. 20 As regards the Council's argument that the organisation of a second competition and the reclassification of the successful candidates in Category B 5 with effect from 1 January 1994 satisfy the requirements of Article 176 of the Treaty, it follows from the Court's case-law (Parliament v Meskens, cited above, paragraph 24) that Article 176 of the Treaty requires not only that the administration take the necessary measures to comply with the judgment of the Court but that it make good further damage which may be caused by the unlawful measure which has been annulled, subject to the conditions laid down in the second paragraph of Article 215 of the EC Treaty. Thus Article 176 of the Treaty does not make compensation for the damage dependent on the existence of a new fault distinct from the original unlawful measure which has been annulled, but provides for compensation for the damage which results from that measure and which continues after its annulment and compliance by the administration with the judgment whereby it was annulled. 21 Since the applicants' claim is precisely for compensation for the damage resulting from the unlawful act that was annulled, the first four pleas in law must be rejected. First limb of the sixth plea in law 22 By the first limb of its sixth plea in law, the Council claims that the conditions which might give rise to liability on its part are not satisfied. It did not act unlawfully when implementing the judgment in Raiola-Denti v Council, cited above, so that two conditions which must be satisfied for liability to be incurred, namely damage and a causal link, are not met. The Council states in that connection that, although the irregularities affected the 71 candidates in Competition B/228 in the same way, it does not however follow that there is an automatic entitlement to compensation for alleged damage in the absence of proof of a causal link between those irregularities and failure in that first competition. 23 It is settled case-law (see Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 42) that for the liability of the Community to be incurred in the case of a claim for damages brought by an official a number of conditions must be satisfied as regards the illegality of the conduct of the institution of which he complains, the actual harm suffered and the existence of a causal link between that conduct and the damage alleged to have been suffered. 24 With regard to the first of those conditions, it follows from paragraph 19 of this judgment that, contrary to the finding of the Court of First Instance at paragraphs 38 to 44 of the judgment under appeal, the unlawful conduct does not consist in the fact that the Council refused to reclassify the applicants with effect from 1 January 1991, but in the original measure that was annulled, that is to say the steps taken following the decisions admitting candidates to the tests in Internal Competition B/228 (see Raiola-Denti and Others v Council, cited above). It is, moreover, precisely that measure on which, according to the findings of the Court of First Instance in paragraph 6 of the judgment under appeal, the applicants' request, submitted under Article 90(1) of the Staff Regulations, was based. 25 As concerns, next, the damage suffered, it cannot in any event be accepted that there is non-material damage which is linked to the state of prolonged uncertainty in which the applicants found themselves as regards the development of their careers (paragraph 50 of the judgment under appeal). First, the reasons given by the Court of First Instance in support of that conclusion, namely `significant irregularities in the way the tests organised on the basis of Notice B/228 were conducted ... a serious impairment of the applicants' entitlement to see the tests conducted properly and ... the fact that the Council's refusal to put them on an equal footing with their colleagues who had been reclassified on 1 January 1991 took place at a date when they had already been successful in the tests organised on the basis of Notice B/228a', relate rather to the gravity of the irregularities which had already resulted in the annulment of the acts held invalid by Raiola-Denti and Others v Council, cited above, and not to a state of prolonged uncertainty with regard to the development of their careers. Secondly, for the purposes of assessing any non-material damage, the Court of First Instance should have taken into account, besides the length of the state of uncertainty in which the applicants found themselves, other aggravating circumstances which characterised their specific situation. 26 Since that was not the case and since, moreover, the applicants did not plead any such circumstances, the judgment under appeal must be set aside inasmuch as it held that the applicants were entitled to compensation for the non-material damage they claimed to have suffered. 27 Since, on that issue, the state of the proceedings so permits, the proper course for the Court to take, in accordance with the first paragraph of Article 54 of its EC Statute, is to dismiss the applicants' claim concerning compensation for non-material damage. 28 However, it cannot in principle be excluded that the officials who failed in the first Competition B/228 and, like the applicants, were successful in the second Competition B/228a suffered material damage consisting in the fact that they lost the opportunity of seeing their careers develop in the future in a manner comparable to the careers of the candidates who were successful in Competition B/228 (see paragraph 47 of the judgment under appeal), owing to the impossibility of reclassifying them from 1 January 1991. 29 In that connection, as far as the causal link between the unlawful conduct and material damage is concerned, it must be pointed out that it is for the Council to adduce proof that the applicants' failure in the first competition and the damage resulting from that failure were not due to the irregularities found. Since such proof is lacking in this case the first limb of the sixth plea in law must be dismissed on this point. Fifth plea in law and second limb of the sixth plea 30 Lastly, in its fifth plea in law and the second limb of its sixth plea, the Council complains that the Court of First Instance infringed Article 48(2) of the Rules of Procedure of the Court of First Instance when it determined the amounts awarded, since it took into consideration a new fact consisting in the career development of the 15 successful candidates in Competition B/228 from the date on which the action was lodged up to the date of the hearing, and that it also acted in breach of the principle of proportionality. 31 In that connection, the plea based on infringement of Article 48(2) of the Rules of Procedure of the Court of First Instance, which prohibits the introduction of any new pleas in law in the course of proceedings, must be dismissed from the outset. It is clear from the file on the case that on 26 January 1996 the Court of First Instance requested the applicants to determine the amount of the difference between their remuneration up to their reclassification on 1 January 1994 and the remuneration which they would have obtained if they had been reclassified in Category B 5 on 1 January 1991 with the successful candidates in Competition B/228. Since that request was based on Article 64(3) of the Rules of Procedure of the Court of First Instance, that Court was entitled to base itself on the replies received, without infringing Article 48(2) of those Rules, a fortiori since the Council had the opportunity of stating its views on that point at the hearing. 32 As regards the plea in law based on a breach of the principle of proportionality, according to the case-law of the Court (Commission v Brazzelli Lualdi and Others, cited above, paragraph 81), it is for the Court of First Instance alone to assess, within the confines of the claim, the method and extent of compensation for the damage. However, in order for the Court to be able to review the judgments of the Court of First Instance, those judgments must be sufficiently reasoned. 33 In this case the reasoning of the Court of First Instance at paragraph 51 of the judgment under appeal, according to which the damage suffered by each of the applicants amounted ex aequo et bono to BFR 500 000, does not enable the Court to acquaint itself with the criteria taken into account for the purposes of determining that amount. In the absence of such information, the Court is not, however, in a position to decide whether the judgment under appeal is in breach of the principle of proportionality on that point. 34 In the circumstances, the judgment under appeal must be set aside inasmuch as it annulled the Council's decisions of 9 and 15 June 1994 and 4 January 1995 and ordered the Council to pay each of the applicants the sum of BFR 500 000 as compensation for combined material and non-material damage. Decision on costs Referral back to the Court of First Instance 35 Under the first paragraph of Article 54 of the EC Statute of the Court of Justice, `If the appeal is well founded, the Court of Justice shall quash the decision of the Court of First Instance. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment'. 36 Since the state of the proceedings does not permit final judgment to be given on the applicants' claim for compensation for material damage, that claim must be referred back to the Court of First Instance. Operative part On those grounds, THE COURT (Sixth Chamber) hereby: 1. Sets aside points 1, 2 and 4 of the operative part of the judgment of the Court of First Instance of the European Communities of 26 June 1996 in Case T-91/95 De Nil and Impens v Council; 2. Dismisses the applicants' claim for compensation for non-material damage; 3. Refers the case back to the Court of First Instance for judgment on the applicants' claim for compensation for material damage; 4. Reserves the costs.

Mr Justice Henderson: Introduction and recent events On 21 and 22 July 2009 I heard argument on costs and other consequential matters arising after service by Dr Mireskandari of a notice of discontinuance of his claim against the Solicitors Regulation Authority ("the SRA"), the division of the Law Society to which the Law Society has delegated its disciplinary and regulatory functions and the exercise of its powers under schedule 1 to the Solicitors Act 1974. By his claim, which was started by a Part 8 claim form issued on 23 December 2008, Dr Mireskandari asked for orders that interventions into his practice as a solicitor which the SRA had resolved to make on 12 and 17 December 2008 should be withdrawn, that the suspension of his practising certificate (which was one of the automatic consequences of the interventions) should be discharged, and that the Law Society should pay his costs. The notice of discontinuance was served at a very late stage indeed. On 27 March 2009 directions were given by Blackburne J for trial of the action in a window between 7 and 31 July, with a time estimate of five days. At a pre- trial review held on 8 June, after Blackburne J had decided to recuse himself for reasons which I will come to later in this judgment, I dismissed applications by Dr Mireskandari to adjourn the pre-trial review and the forthcoming trial. I gave directions for Dr Mireskandari to serve any evidence in reply upon which he wished to rely by 29 June, and to file and exchange his skeleton argument for trial by 3 July. Subject to listing requirements, I directed that the trial should begin on Monday, 6 July (together with the trial of an associated claim brought by Ms Turbin), with the first three days set aside for pre-reading by the court. On 29 June Dr Mireskandari filed a lengthy witness statement, but no skeleton argument had appeared by 3 July, and instead he made a further, last minute, application to adjourn the trial. This application first came before me on Tuesday, 7 July, when I adjourned it until 9 July. On 9 July I refused the adjournment, and also dismissed two other applications made by Dr Mireskandari (for disclosure, and for consolidation of the present action with other proceedings that he is bringing against the Law Society in the High Court, alleging unlawful discrimination against him on the grounds of his race and religion). It was only when all these attempts to postpone the trial of the action had failed that Dr Mireskandari, through his solicitors Saunders Bearman, informed the court on the morning of Friday, 10 July that he had decided to withdraw his claim. This was then followed, later in the morning, by a formal notice of discontinuance. By virtue of CPR 38.6(1): "Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom he discontinues incurred on or before the date on which notice of discontinuance was served on him." CPR 44.12(1)(d) provides that where a right to costs arises under Rule 38.6, "a costs order will be deemed to have been made on the standard basis". However, the power of the court under Rule 38.6 to "order otherwise" clearly includes power, in an appropriate case, to order that the defendant's costs should be paid on the indemnity basis. This was confirmed by Rattee J in Atlantic Bar & Grill Ltd v Posthouse Hotels Ltd [2000] C.P.Rep. 32, noted in the White Book at para 38.6.2. Neither Dr Mireskandari nor his solicitors attended court on 10 July, when I heard and dismissed applications by Ms Turbin for the adjournment of her claim and for further disclosure. Ms Turbin has throughout acted in person, and having dismissed her application for an adjournment I gave her until the following Monday (13 July) to consider her position and to decide whether or not to continue with the trial of her claim. In the event, she too decided to discontinue, although her decision was not communicated either to the court or to the Law Society until the Monday morning. Meanwhile, the SRA through its counsel (Mr Hodge Malek QC, leading Mr Andrew Tabachnik) had made it clear on 10 July that it wished to seek an order against Dr Mireskandari that the SRA's costs of the proceedings should be assessed on the indemnity basis, and that an interim payment on account of those costs should be made. I therefore directed that all consequential matters, including the costs applications, should be dealt with at a further hearing before me during the week of 13 to 17 July. The SRA's solicitors, Russell-Cooke LLP, then faxed a letter to Dr Mireskandari's solicitors informing them of this direction, and inviting them to arrange for Dr Mireskandari to be represented on 13 July so that a suitable time for the hearing could be fixed. It is not disputed that this letter was received at the offices of Saunders Bearman on 10 July, but I was subsequently told, on instructions, that it somehow failed to come to the attention of the relevant person dealing with the case on Dr Mireskandari's behalf. In any event, he was unrepresented on 13 July, and on the assumption that this was a deliberate decision on his part I fixed the hearing for Wednesday, 15 July. This then prompted an application issued on 14 July, supported by a witness statement of the same date from Dr Mireskandari, asking (in effect) that the hearing should be adjourned until a date in the autumn when the leading counsel whom he now wished to instruct, Mr Michael Beloff QC, would be free to argue the costs questions for him. Mr Beloff (together with a junior from his chambers) had already put in a fleeting appearance for Dr Mireskandari at the first hearing of the application to adjourn the trial on 7 July. Mr Beloff told me on that occasion that he had been instructed at very short notice. Neither Mr Beloff nor his junior had any previous involvement in or acquaintance with the case, but Dr Mireskandari explained in an earlier witness statement dated 6 July that Mr Beloff had been "recommended to [him] by Lord Brennan QC … as being the right person to act for [him] in a case of such high sensitivity". Unsurprisingly, Mr Beloff was unavailable for a one day hearing until September 2009 at the earliest, subject to a possibility that he might become free for a hearing on the last day of term, 31 July. I heard the adjournment application on 15 July, when Dr Mireskandari was represented (as he had been at the effective hearing of the earlier application to adjourn the trial on 9 July) by junior counsel, Mr Jonathan O'Mahony. On both occasions when he appeared before me, Mr O'Mahony had been instructed at extremely short notice, and he performed his difficult task with skill and discretion. I decided that an adjournment until the autumn to suit Mr Beloff's convenience could not be justified, particularly having regard to his lack of prior involvement in the case, but I agreed to grant a short adjournment until the following Tuesday, 21 July, so that Dr Mireskandari could have a final opportunity to arrange for representation. In the light of past experience, I also directed that no further evidence should be filed, that the name of counsel instructed should be notified to my clerk and Russell-Cooke by 5 pm on 15 July, and that Dr Mireskandari's skeleton for the hearing should be filed and served by 10 am on 20 July. Dr Mireskandari then instructed Mr Hugo Page QC, who duly prepared a skeleton argument and appeared for him at the hearing on 21 July, which in the event did not conclude until 2.30 pm on the following day. Mr Page, too, had no prior involvement in the case, and on a few occasions I felt that his lack of detailed knowledge of the tangled history of the case understandably led him to make submissions which were misplaced or unrealistic. In general, however, I wish to express my gratitude for the considerable assistance that he was able to give the court in both his written and his oral submissions. I have recounted these recent events in some detail because they are, in my judgment, symptomatic of Dr Mireskandari's modus operandi. The following points in particular may be noted. First, he made repeated, but ultimately unsuccessful, efforts to have the trial adjourned, without it ever being clear what he really hoped to achieve by the adjournment apart from delay and an increase in the already very substantial time and costs that the SRA has had to expend in dealing with his claim. This apparent lack of proper motive became even clearer when on 8 July the Court of Appeal (Lord Clarke of Stone-cum-Ebony MR and Longmore LJ) dismissed his appeal against the refusal of Blackburne J on 8 May 2009 to extend the time for compliance with an unless order which he had made on 27 March, the effect of which (in the event of non-compliance by 24 April) was to limit his grounds of challenge to the SRA's intervention into his practice to those set out in sub-paragraphs 5(a) to (d) of his claim form, and to preclude him from filing any further evidence in support of the action. Instead of preparing for trial on this limited basis, and seeking an adjournment only if the Court of Appeal allowed his appeal (an adjournment which, in those circumstances, could hardly have been opposed), he appears to have taken no steps at all to prepare for trial (evidenced by his failure to file a skeleton argument by 3 July, or to lodge any trial bundles), and instead to have pinned all his hopes on success in the Court of Appeal, or if that failed on obtaining an adjournment on other grounds. Secondly, there is a pattern of applications made at the last minute, on constantly shifting grounds, and the instruction of a changing array of counsel, usually at very short notice, to argue them. Thus, since my own involvement in the case began in early June, Dr Mireskandari has been represented: (a) by Mr Nicholas Vineall QC, instructed on the previous Friday evening, at the pre-trial review on Monday, 8 June; (b) by Mr Beloff QC and his junior, likewise instructed at very short notice, for the initial adjournment application on 7 July; (c) by Mr Nicholas Vineall QC at the Court of Appeal hearing on 8 July; (d) by Mr O'Mahony, instructed at 45 minutes' notice, at the effective hearing of the adjournment application on 9 July; (e) by Mr O'Mahony, again instructed at very short notice, at the hearing on 15 July; and (f) by Mr Hugo Page QC at the hearing on 21 and 22 July. As to shifting grounds, it is perhaps enough to note that in his application notice for adjournment of the trial, issued on 1 July, Dr Mireskandari said that he needed further time to prepare his evidence but said nothing about his state of health. By the beginning of the following week, however, the primary ground that he sought to rely upon was his state of health, and in his witness statement of 6 July he referred to and exhibited a letter from a consultant psychiatrist saying that he was not fit enough to be involved in a trial. I should add, in fairness to Dr Mireskandari, that a further ground relied upon, namely the death on 4 July of an uncle to whom he was extremely close, had been unexpected, and I do not doubt that it caused him significant distress. The late appearance, and (as it stood) inadequacy, of the medical evidence was one of the reasons I decided to adjourn the application at the first hearing on 7 July. The other main reason was that the Court of Appeal hearing was due to take place on the following day, and everybody agreed that, if the appeal were to succeed, the trial would have to be adjourned. When the hearing of the adjournment application resumed on 9 July, the Court of Appeal had dismissed Dr Mireskandari's appeal and fuller medical evidence was available, including a report from a consultant psychiatrist instructed by the SRA. As I have already said, I dismissed the application. I refused Dr Mireskandari permission to appeal against my decision, and on the following day he discontinued his claim. A further illustration of shifting grounds may be found in the arguments advanced for Dr Mireskandari at the costs hearing. In his skeleton argument for the hearing on 15 July, Mr O'Mahony said, no doubt on instructions, that one of the matters Dr Mireskandari wished to address in the costs application was that the discontinuance had occurred as a result of misfeasance by the SRA. This was, on the face of it, a wild and extraordinary allegation, without a shred of evidence to substantiate it, and it is hardly surprising that it played no part in Mr Page's submissions at the hearing. On the other hand, in his skeleton argument Mr Page introduced for the first time, again no doubt on instructions, a number of fresh contentions, including a submission that Russell-Cooke were arguably unable to recover any costs at all, because they were allegedly in a position of conflict of interest, and that the court should direct an issue to be tried in order to resolve the question. Mr Malek complained, with some justification, that he and his team were constantly being faced at the last minute with unheralded, changing, and frequently recycled allegations, which in turn made preparation for hearings very much more laborious and time-consuming than it should have been. Thirdly, there is a pattern of refusal or failure to comply with court orders. I have already referred to Dr Mireskandari's failure to comply with the unless order made on 27 March 2009, and to his failure to provide a skeleton argument for trial. A further striking example is afforded by the lengthy witness statement which he filed on 29 June, ostensibly pursuant to the order which I had made at the pre-trial review on 8 June. By paragraph 7 of my order of 8 June I gave Dr Mireskandari permission "to serve evidence in reply to new material contained within the evidence served by [the SRA] between 14 and 29 May 2009". The permission was strictly limited to evidence in reply to new material contained within the SRA's latest round of evidence, including in particular the second forensic investigation report, not least because Dr Mireskandari was already precluded by the unless order (which had taken effect on 24 April) from filing any further evidence in support of his claim. Furthermore, in oral exchanges with counsel after I had given judgment on 8 June I made it abundantly clear that the evidence to be served by Dr Mireskandari was confined to evidence that was truly responsive to the additional material contained in the SRA's latest evidence, and was not intended to give him an opportunity to reply at large to material contained in the first forensic investigation report. Despite this clear guidance, and in apparently total disregard of the terms of my order, the lengthy witness statement that Dr Mireskandari served on 29 June did not address itself solely to new material, but instead ranged far and wide, containing large quantities of material which was either completely irrelevant or else relevant, if at all, only to issues which he was prevented from pursuing by the unless order. In addition, it contained much material of a scandalous and vexatious nature, including grossly defamatory allegations against a number of people, and ventilated at length his complaints of discrimination and victimisation by the SRA on grounds of race or religion, even though those complaints have no part to play in the present action and are already the subject matter of separate proceedings both in the Employment Tribunal and in the High Court. If Dr Mireskandari were an inexperienced litigant in person, this conduct might perhaps be excusable; but as he is a solicitor and an officer of the court, I can only describe it as deplorable. His service of this statement gives rise to one of the questions that I now have to decide, namely whether I should accede to the SRA's request for a direction pursuant to CPR 32.13(2) that it should not be open to inspection by members of the public. With this introduction, I can now identify the issues upon which I need to rule. They are, in summary, as follows: (1) whether the court should order trial of an issue whether Russell-Cooke were properly instructed by the SRA; (2) whether the SRA's conduct of the litigation disentitles it to any part of the costs of the action down to the date of discontinuance to which it would otherwise be entitled pursuant to CPR 38.6(1); (3) subject to issues (1) and (2) above, whether Dr Mireskandari should be ordered to pay the SRA's costs on the indemnity basis; (4) the costs of the recusal application to Blackburne J, which have been reserved to me as the trial judge; (5) whether an interim payment should be made, and if so in what amount; and (6) whether Dr Mireskandari's statement of 29 June should be open to public inspection. Before dealing with these issues, however, I first need to say a little more about the background to the case and the history of the proceedings until June 2008. The background and earlier history of the proceedings In October 2008 Dr Mireskandari was the senior, and virtually sole, equity partner of Dean & Dean ("the Firm"). The Firm specialised in the provision of legal services to clients from ethnic or religious minority backgrounds. Dr Mireskandari himself is an Iranian by origin and a Muslim. The only other equity partner in the Firm was a Mr Bell, who subsequently informed the SRA that his equity share was in truth a nominal one, of the order of 0.001%, and he had been given it only because Dr Mireskandari preferred that he should pay his own tax and national insurance contributions rather than having them paid through the Firm's PAYE procedures. There were also two salaried partners, with no share in the equity of the Firm, Ms Caroline Turbin (who had become a salaried partner in October 2007) and Ms Kathleen O'Donnell (who became a salaried partner from 1 October 2008). On 3 October 2008 the SRA wrote to Dr Mireskandari seeking his written explanation with regard to allegations that he had "obtained admission as a solicitor on the basis of untruthful responses to required questions; misrepresentations; the submission of false documents and bogus academic qualifications". Particulars of the allegations were set out in the letter at some length, and Dr Mireskandari was required to provide a detailed response by 24 October. Two days earlier, on 1 October 2008, leading counsel, Mr Richard Spearman QC, had sent a lengthy email to Mr Bell, in his capacity as the Firm's managing partner, on the subject of unpaid fees owed to himself and another barrister for work done for the Firm, mostly in cases in which the Firm itself was the client. Mr Spearman said that, if the outstanding fees were not paid by 3 October, he proposed (unless cogent reasons to the contrary were provided in writing) to refer the matter to the Law Society on the grounds that there was reason to suspect dishonesty on the part of all or some of three named fee earners, including Dr Mireskandari. On 2 October 2008 the Firm paid staff salaries of £20,574.07 directly from client account. This was, on any view, a blatant and serious breach of the Solicitors' Account Rules ("the SAR"). In further breach of the SAR, the payment from client account was made without any written signed instruction from a solicitor or other person of a designated position. As the SRA was later to discover, the office account was at the time overdrawn by £502,362.68, and according to Ms Turbin the Firm's overdraft facility was only £490,000. Pursuant to SAR rule 7(1), any breach of the rules must be remedied promptly, and this includes the replacement of any money improperly withdrawn from a client account. The duty rests not only on the person causing the breach, but also on all the principals in the practice. The term "principal" includes salaried partners. Despite these requirements, the money improperly withdrawn was never replaced. On 7 October the SRA served a formal notice on the Firm under section 44B of the Solicitors Act 1974, requiring certain documents relating to the affairs of specified clients to be produced for inspection. The notice was signed by Mr Mike Calvert, the Head of Forensic Investigation at the SRA. By a further notice given on the following day, 8 October, pursuant to rule 34 of the SAR and other enabling powers, Mr Calvert notified the Firm that an investigation of the Firm by three named investigation officers would commence on that date, and required the Firm's books of account and bank records to be made available to them. The Firm's reaction to these developments was not to co-operate with the SRA, but to seek (and obtain) a without notice injunction from Forbes J on the evening of 10 October, following fruitless attempts to have the application heard earlier in the day. The injunction was sought in support of an application for judicial review of the SRA's decision to serve the relevant notices, on the ground that the SRA had been improperly motivated by racial and/or religious discrimination and the pursuit of a vendetta against Dr Mireskandari. With the benefit of hindsight, it is now obvious that the injunction should never have been granted. However, it was continued by Stadlen J at a hearing on 15 October when both sides were represented, and directions were given for a further hearing to take place together with the Firm's application for permission to seek judicial review on the first open date after 5 November 2008. Directions were also given for the service of evidence in the meantime. On 6 November 2008 the Firm's applications were heard by Pitchford J. He refused permission to seek judicial review, and set aside the injunction. He found that the court had been misled on the without notice application to Forbes J, and he held there was no evidence to indicate that the inspection had been undertaken for improper motives. He ordered the Firm to pay indemnity costs, with an interim payment on account of £70,000, none of which has been paid. I cite some extracts from the judgment which Pitchford J delivered at the conclusion of the hearing on 6 November: "34. Forbes J was, I am satisfied, misled in two important particulars. First, an injunction was completely unnecessary. No urgency attended the application since the investigators had already decided to leave the firm's offices to return on Tuesday morning. Second, it was untrue that the SRA had been informed of an impending application to the High Court for an injunction. … 44. Far from supporting the grounds of claim drafted by counsel this witness statement [i.e. Dr Mireskandari's statement of 10 October 2008] made an all out attack on the good faith of the Law Society when issuing its notices. … 49. The fact that Dr Mireskandari needs to descend to detail, to make justification, to make accusations of dishonesty and unreliability against others, including members of his own profession, simply serves in my view to undermine his case that the Law Society has issued its notices for unmeritorious and contrived reasons. In particular, Dr Mireskandari has in his second witness statement sought to assure the court by evidence contained within it and by documents exhibited to it that both he and the firm are substantially sound. … 51. The issue for me upon the arguments addressed is whether the claimant has an arguable case that the Law Society is seeking to use its powers not on fair and proper grounds but to victimise Dr Mireskandari for his outspokenness on behalf of black and minority ethnic solicitors. 52. It seemed to me that the grounds as formulated in the claim do not even nearly reflect the allegations now made … 53. The interim order from Forbes J was obtained upon partial and misleading information as to the urgency of the application and the grounds and strength of the claim. … 54. That state of affairs was not corrected during the hearing before Stadlen J. 55. As a result the purpose of a without notice inspection has already been frustrated. 56. The grounds upon which the Law Society formed its suspicions were substantial. I make it plain that this does not involve a judgment upon the accuracy or truth of the complaints nor does it involve the drawing of concluded inferences adverse to anyone. The sole question is whether the defendant had proper grounds upon which to issue the notices it did. Answers such as those Dr Mireskandari may provide could have been anticipated. That is why exercise of the power of production was required. As Dr Mireskandari has himself acknowledged, he should not be exempt. 57. I have found nothing in the preparation or execution of the notices which remotely justifies a suspicion, let alone an inference, that the defendants may have acted for oblique motives. As the defendants have demonstrated, I am satisfied, they were forced to act in response to information from several different sources and to the fact that information was appearing in the newspapers which might prejudice their inquiries if they delayed, information which they were continuing to receive until days before the notices were issued. 58. Thus it is my conclusion that the claimant has no prospect of a successful claim. The application for permission is refused. 59. It follows that the interim orders made by Forbes J and Stadlen J will be discharged." I should also draw attention to certain events which had taken place between the abortive commencement of the inspection and the hearing on 6 November: (1) On 24 October the SRA wrote to Dr Mireskandari requiring him to provide an explanation within 14 days in response to the complaint which had by now been made by Mr Spearman QC. No reply was received, either within the specified period or at any time thereafter. (2) On 27 October an expert medical bill for £580, long overdue, remained unpaid. A manuscript note on the bill recorded that a cheque request had been made, and a cheque was ready, but it could not go out "as there isn't money in the bank, so if it does go out the cheque would bounce anyway". (3) On the same day Dr Mireskandari's then solicitors, RadcliffesLeBrasseur, sent a detailed response to the SRA's letter of 3 October concerning Dr Mireskandari's academic and professional qualifications. (4) As Pitchford J noted, Dr Mireskandari's second witness statement of 31 October 2008 asserted that the Firm was not in financial difficulties, but was "in excellent financial health". He claimed that the Firm's accounting procedures were "second to none", and "go over and above SRA's best practice requirements". On the same day, he wrote to the SRA threatening injunction proceedings in respect of the investigation into Mr Spearman's complaint. (5) On 3 November staff salaries of £27,262.97 were again paid directly from client account, in clear breach of the SAR and without any written signed authority. (6) On 5 November Slade J dismissed an application by the Firm for adjournment of the hearing which had been re-fixed for 6 November, having previously been fixed (I am not sure with what degree of formality) for 20 November. Slade J rejected a number of arguments advanced by the Firm, and ordered the Firm to pay costs which were assessed in the sum of £5,356.24 inclusive of VAT. As with all the other costs orders which have been made to date against the Firm or Dr Mireskandari, not a penny of this has been paid. On 6 November 2008, the very day of the hearing before Pitchford J, Radcliffes wrote to the SRA's solicitors (then, as now, Russell-Cooke) to inform them that Dr Mireskandari had decided "to take a sabbatical for a period of at least 3 months in order to devote his time to preparing his response to the allegations which the SRA has made against him". The letter continued: "The sabbatical, which commenced today, has the following effect: 1. Mr Mireskandari will not be practising as a solicitor in [the Firm] during the period of the sabbatical. 2. Mr Mireskandari will not be taking any part in the management of [the Firm] during the period of his sabbatical. 3. The letter heading of [the Firm] will be changed with effect from today to state that Mr Mireskandari is a non-practising consultant. That description is designed to ensure that there is as little disruption as possible to the clients and staff of the firm arising from Mr Mireskandari's decision to take a sabbatical. 4. Mr Mireskandari will not be holding any sums of money in connection with the practice of [the Firm], or any trust, during the period of the sabbatical and the [Firm's] bank is today being informed that [his] name should be removed from the bank mandates with immediate effect. 5. Mr Mireskandari will not have any documents in his possession relating to the practice of [the Firm] save to the extent that the documents are needed to answer the allegations which the SRA has made against him …" The letter went on to say that Dr Mireskandari was currently in America collecting evidence to corroborate his response to the allegations in the SRA's letter of 3 October. After dealing with various other matters, and asking the SRA to confirm which allegations made by the SRA in the judicial review proceedings it wished to pursue, Radcliffes sought confirmation that the SRA would not attempt to exercise any powers of intervention in relation to Dr Mireskandari or the Firm. On 7 November, the day after Dr Mireskandari's sabbatical had allegedly begun, he orally instructed Ms Turbin (according to answers given by her to the SRA at a subsequent interview) to transfer from client to office account a sum of £100,000 received from a client on the same day. She complied with the instruction. Her initial explanation was that she had discussed the matter with Dr Mireskandari, and she authorised the transfer on his assurance that the monies in question were a loan. I should add, however, that in subsequent interviews and witness statements Ms Turbin gave a number of conflicting explanations of this episode, including (most recently) a denial that she spoke to Dr Mireskandari at all before transferring the funds from client to office account. On 11 November the SRA interviewed Ms Turbin, Ms O'Donnell and Mr Bell. On 14 November Mr Bell and Ms O'Donnell resigned from the Firm, leaving Dr Mireskandari (apparently on sabbatical) as the sole equity partner and Ms Turbin as the sole salaried partner. On 16 November the Firm provided the SRA investigators with a schedule of debts owed to counsel totalling £913,792.63. On 5 December 2008 the Bar Council issued a withdrawal of credit direction against the Firm on grounds of non-payment of counsels' fees. Meanwhile, the SRA conducted further interviews with Ms Turbin, Ms O'Donnell and Mr Bell. In an interview on 2 December Ms Turbin said that, in view of Dr Mireskandari's sabbatical, it was proposed to re-involve the former principal of the firm, Mr Jami Tehrani, as an equity partner. Mr Tehrani had been the sole principal of the Firm's practice from 1999 until 1 November 2005, and he had then carried it on in partnership with Dr Mireskandari until 23 November 2006 when he resigned as a partner on terms agreed between him and Dr Mireskandari. According to Ms Turbin, the intention was that he would again become an equity partner, although the details remained to be arranged. According to a letter from Radcliffes to Russell-Cooke dated 23 December 2008, an oral agreement was reached on 20 November 2008 for Dr Mireskandari to transfer his interest in the Firm to Mr Tehrani with effect from 1 December. The terms of the agreement were set out in a letter sent by Mr Tehrani to Dr Mireskandari on 22 November, and an assignment was then executed on 11 December. Radcliffes enclosed copies of the letter of 22 November and the assignment, neither of which had previously been seen by the SRA. There is a dispute, which I cannot resolve without having heard oral evidence and cross-examination, whether these documents were in fact signed on the dates which they bear. By the assignment, Dr Mireskandari purportedly assigned his full equity interest in the practice to Mr Tehrani with effect from 1 December 2008. The agreement provided that Dr Mireskandari would remain responsible for the debts and liabilities of the practice, including the current overdraft with the bank. It further provided that Mr Tehrani would thereafter conduct the practice as he thought fit, and for his own benefit, and that Dr Mireskandari would have no control or involvement in the management or running of the practice, although he would provide assistance, if requested, in respect of matters or cases which he had conducted or been involved in while a partner. On 11 December Mr Calvert signed off a forensic investigation report ("the first forensic investigation report"), and on the same day an investigation officer, Ms Ku Patel, prepared a detailed case note ("the case note") for the SRA adjudication panel. These two documents, with their supporting annexes and appendices, ran to several hundred pages and covered a number of separate grounds for suspecting dishonesty on the part of Dr Mireskandari, as well as grounds for concluding that both he and Ms Turbin had breached the SAR. On the next day, 12 December, this material was considered by an adjudication panel chaired by Mr R Hegarty, and it was resolved to intervene into the practice of Dr Mireskandari on grounds of suspected dishonesty, pursuant to paragraph 1(1)(a)(i) of Part I of schedule 1 to the Solicitors Act 1974. The panel's resolution recorded that they were satisfied that it was necessary to intervene in view of the nature of the matters identified in the first forensic investigation report and other issues of concern. In particular, the panel were concerned that: "(i) unauthorised transfers of monies from client to office bank account were made whereby Dr Mireskandari and/or the firm benefited from utilising client funds without clients' consent/knowledge; (ii) In the client matter of [G] £200,000 bail bond monies were transferred to office account between 26 October and 2 November 2007 and utilised by Dr Mireskandari for his/the firm's benefit, causing a cash shortage until 17 April 2008 when a loan was secured to enable the bail monies to be sent to HM Court Service; (iii) a client's mortgage funds held on client designated deposit account in the sum of £122,746.56 were improperly transferred to office account despite being subject to undertakings given to two separate parties. Accordingly, the recipients of the undertakings were misled. In addition, the client's property may have been at risk if the loan had been defaulted upon; (iv) staff salaries were paid from client bank account at a time when the office account had exceeded its bank overdraft limit; (v) A Costs Judge reduced a bill raised by Dr Mireskandari of £444,705 to £99,449.65 and referred the matter to the Law Society (Angel Airlines v Dean & Dean). Further, in a separate hearing in the Court of Appeal comment was made that the Judge in the lower court "was seriously misled by the papers put before him"; (vi) In another court hearing in relation to the setting aside of a freezing order obtained by Dean & Dean against their client [G], the Judge commented that the judge who granted the freezing order had not been informed of material facts that should have been brought to his attention, namely the judge had not been informed that the client had paid £403,000 on account of Dean & Dean's costs but only £49,000. (vii) The funds of the firm's client, [P], have been transferred in excess of those agreed with the client. (viii) The issues relating to Dr Mireskandari's qualifications are serious, in view of the available evidence to date. (ix) Dr Mireskandari misled the court in the injunction proceedings against the SRA. (x) The firm's indebtedness as illustrated in the schedule of Counsels' fees owed in excess of £900,000 give[s] cause for further concern that clients' funds may be at risk." Among other matters, the panel also decided to refer Dr Mireskandari's conduct to the Solicitors Disciplinary Tribunal ("the SDT"). On 15 December the resolution to intervene was put into effect, and the process of removing files from the Firm's offices commenced. As I shall explain later on, the SRA instructed its solicitors, Russell-Cooke, that no papers relevant to Dr Mireskandari's Employment Tribunal proceedings against the Law Society should be taken or inspected, and independent counsel, Mr Nigel Ingram, was instructed for this purpose. On 17 December the adjudication panel passed further resolutions to intervene into the practices of both Dr Mireskandari and Ms Turbin on the grounds that the panel were satisfied they had failed to comply with the SAR, pursuant to paragraph 1(1)(c) of Part I of schedule 1 to the 1974 Act. The apparent breaches of the SAR identified in the panel's resolution included improper withdrawals from client account in breach of rule 22, a breach of rule 23 (the rule which requires proper written authority for transfers from client account), and a failure to remedy breaches on discovery contrary to rule 7. On 23 December, as I have already said, Radcliffes wrote to Russell-Cooke giving details of the alleged transfer by Dr Mireskandari of his equity interest in the Firm to Mr Tehrani. On the same day, Dr Mireskandari issued his Part 8 claim form against the SRA seeking to set aside the two intervention notices into his practice and the suspension of his practising certificate. It is important to note that the summary grounds set out in paragraph 5 of the claim form did not expressly challenge the existence of grounds to justify either of the interventions, nor was any application made for the resumption of the practice, whether by Dr Mireskandari or Mr Tehrani. Instead, the grounds relied upon were: (a) Dr Mireskandari's decision to cease practice as a solicitor on 6 November 2008 and to take a sabbatical of at least three months; (b) that he was not a partner in the Firm, nor did he have any interest in it, on the dates of the two resolutions to intervene; (c) that the intervention had damaged his professional reputation, and there was no public interest in intervening because he had no control of or access to client funds or files, and there was no immediate or likely risk to the public, clients or the reputation of the profession which required the SRA to act without notice; and (d) there was a real risk that the SRA's actions would render a fair determination of his civil rights impossible, in breach of Article 6 of the European Convention on Human Rights. The claim form also referred to Dr Mireskandari's belief that there was a substantial risk that privileged material in respect of his Employment Tribunal claim against the Law Society had been seized in the intervention. In his witness statement in support of the challenge, also dated 23 December 2008, Dr Mireskandari referred, among other matters, to Mr Tehrani's prior involvement in the Firm, and to the discrimination proceedings which he had commenced against the Law Society on 19 May 2008 in the Employment Tribunal. He said in paragraph 11: "I do not expect this Court to make any decision in relation to the discrimination allegations, as that is a matter for the Employment Tribunal." He then referred to some of the events leading up to his decision to take a sabbatical, and described how his negotiations with Mr Tehrani had resulted in an oral agreement between them on 20 November and the formal assignment of 11 December. In paragraph 41, apparently moving beyond the grounds of challenge set out in his claim form, he said that he proposed to comment on the alleged irregularities in the accounts "once the SRA has provided full details of the allegations", and that he strongly objected to the allegations of dishonesty, although he had not yet had enough time to reply to them in detail. In paragraph 43.4 he complained that Russell-Cooke had removed the Firm's files relating to his Employment Tribunal proceedings, and said he understood they were currently with an independent counsel: "That has prevented me from pursuing my case at a critical time as a preliminary issue hearing has been listed for the end of January 2009 and the main trial has been listed for hearing in April 2009." On 28 December 2008 Ms Turbin also issued a Part 8 claim against the SRA, seeking to set aside the intervention into her practice (which was based only on alleged breaches of the SAR). On 6 January 2009 Dr Mireskandari's claim form was served on the SRA, and on 7 January Russell-Cooke wrote to Radcliffes seeking clarification of Dr Mireskandari's challenge to the intervention resolutions, and in particular whether the challenge was confined to the grounds set out in the claim form. No response was received to this letter, or to a further chasing letter sent on 20 January. Instead, on 14 January, Dr Mireskandari issued separate Part 8 proceedings, in his own name, the defendants to which were the SRA, Mr John Gould (who had been appointed to act as the SRA's intervention agent and has at all material times been a partner in Russell-Cooke) and Mr Nigel Ingram, the independent counsel instructed by Russell-Cooke for the purposes of the intervention. The principal relief sought was delivery up of all of the files relating to Dr Mireskandari's Employment Tribunal proceedings, and the service of witness statements by Mr Gould and Mr Ingram giving details of all persons who had had access to the files. Arrangements were made for an urgent hearing of the application before Blackburne J on 20 and 21 January. At the conclusion of the hearing Blackburne J indicated that he was not willing to grant any of the relief sought, and in a reserved judgment which he handed down on 9 February he gave his reasons for coming to that conclusion. In paragraph 13 of his judgment Blackburne J described Mr Ingram's role in the matter: "Prior to the intervention occurring, indeed prior even to the decision by the SRA to intervene but in the expectation that such a decision would be made, Russell-Cooke prepared and sent "instructions to counsel" to act as independent counsel on the intervention. No one was named at that stage. As the instructions made clear, and as Mr Gould confirmed in his witness statement, neither Russell-Cooke nor the Law Society selected counsel who was chosen, namely Mr Ingram. Instead, this was left to the clerk in the chambers … to which the instructions were sent. The request was for junior counsel of some seniority. In the event, Mr Ingram was nominated by the clerk and was duly instructed. The purpose of instructing him was, as paragraph 2 of the instructions made clear, "to put in place arrangements by which material over which legal professional privilege is or could be asserted can be examined by independent Counsel, initially at the offices of the Firm or, if required, following removal by independent Counsel back to Chambers". Implicit in this instruction, and fully understood by Mr Ingram, was that any material over which legal professional privilege could be claimed would not be inspected by (and thus its contents come to the knowledge of) either the SRA or Russell-Cooke." Blackburne J went on to describe how the intervention had been effected, and in paragraph 16 he set out in full an attendance note of a conference between two members of Russell-Cooke and Mr Ingram on 18 December. The judge commented that the attendance note was of importance, because it set out fully the arrangements made and protocol established to preserve the Firm's, and Dr Mireskandari's, confidentiality in documents over which legal professional privilege could be asserted. He then set out the subsequent history of the dispute and summarised Dr Mireskandari's complaints about the respective roles of Mr Ingram and Russell-Cooke, as advanced by counsel (Mr Stuart Adair) on his behalf at the hearing. So far as Mr Ingram was concerned, Blackburne J rejected as unjustified a submission that he was not truly independent because he had been instructed by Russell-Cooke acting on behalf of the SRA. The judge said in paragraph 40: "The mere fact that Mr Ingram was appointed at the instigation of Russell-Cooke acting on behalf of the SRA does not mean that he was not independent in the sense intended by his instructions, and as understood by Mr Ingram, and therefore that he could not in law and in fact act independently so as to preserve the firm's (and if different, the claimant's) legal professional privilege over documents in the firm's custody." He accepted Mr Ingram's explanation that he had extensive experience of acting as independent counsel in search and seizure actions for the police and in other contexts, and that he was fully alive to the need to ensure that privileged material relating to any dispute with the SRA should be preserved from inspection by the SRA and its advisers. With regard to Russell-Cooke's role, Mr Adair submitted that Russell-Cooke were in a position of conflict of interest, and that the arrangements set out in the attendance note of 18 December were inadequate as a means of resolving that conflict. The conflict was said to arise because, as the solicitors acting for the SRA in the intervention, Russell-Cooke were under a duty to protect the interests of the intervened solicitor's clients, while as solicitors acting for the SRA in the Employment Tribunal proceedings, they were under a duty to bring to the SRA's attention any information that might come to them in relation to those proceedings. Reference was made to the observations of Lord Millett in Bolkiah v KPMG [1999] 2 AC 222 at 237-8, and it was submitted that the arrangements which Russell-Cooke would have to set up in order to prevent the seepage of confidential information from those persons in Russell-Cooke engaged on the intervention to those engaged in the SRA's defence of the Employment Tribunal proceedings would have to be of the "organisational nature" held to be necessary by the House of Lords in that case. Counsel submitted that, consistently with what Lord Millett had said, the burden was on Russell-Cooke to establish that it had set up an effective Chinese wall and, on the evidence, it had failed to do so. For the reasons given in paragraphs 43 to 45 of his judgment, Blackburne J rejected the supposed analogy with Bolkiah's case, and identified the "real and only question" as being whether, as a result of the intervention, anyone in Russell-Cooke had come into possession of information confidential to Dr Mireskandari in connection with his Employment Tribunal claim, and if so what steps either had been or could be taken to prevent such information coming into the possession of the SRA or of any member of Russell-Cooke acting for the SRA in the Employment Tribunal proceedings, and whether those steps were effective. Blackburne J then continued: "46. The only source of information (whether covered by legal professional privilege or otherwise) confidential to the claimant which could plausibly be said to have come into Russell-Cooke's possession and which could give rise to any conflict of interest necessitating the establishment of a Chinese wall or, failing that, Russell-Cooke's withdrawal from one of its two roles on behalf of the SRA must derive from documents taken as a result of the intervention the contents of which have come to Russell-Cooke's notice. The onus lies on the claimant to establish, by credible evidence, that this has happened. Unless he can do so, any question of Russell-Cooke having to demonstrate that it has set up an effective Chinese wall between those in the firm who are in possession of the claimant's confidential information and those within the firm who are acting for [the] SRA in the Employment Tribunal Proceedings simply does not arise. … 47. On the evidence which has been laid before me, I am of the view that the claimant has not begun to discharge this burden." In paragraph 54, the judge said it was "abundantly clear" to him that the procedures put in place by Russell-Cooke had successfully ensured that no one in Russell-Cooke engaged in the Employment Tribunal proceedings had seen any material which was or might be subject to privilege in Dr Mireskandari. He was equally satisfied that there was "no significant risk" of this happening in the future. In a postscript to his judgment, Blackburne J expressed the view that there was in truth no basis for the urgency with which the application had been brought before him, because the hearing which was due to take place before the Central London Employment Tribunal on 21 to 23 January was the hearing of an application by the SRA to strike the proceedings out on legal grounds which would not require access to any of the documents still in the possession of the defendants. In this context, the judge referred to a letter which Dr Mireskandari had sent to the Tribunal and concluded that it contained representations which were "wholly without substance". The judge went on to say, at the end of paragraph 62: "… the inference can only be that the claimant has deliberately set out to mislead the Employment Tribunal." For this, and other reasons, Blackburne J ruled on 23 February 2009 that Dr Mireskandari should pay each defendant's costs on the indemnity basis, without set-off or deduction. He ordered a payment on account of £33,000, none of which has been paid. He also refused Dr Mireskandari permission to appeal. Dr Mireskandari filed an appellant's notice, but later withdrew his appeal. Much of the subsequent history of the present proceedings, from February 2009 until the pre-trial review on 8 June, is set out in paragraphs 12 to 27 of the judgment which I delivered on that occasion. The main developments may be summarised as follows: (1) On 10 February Blackburne J ordered Dr Mireskandari to give full particulars by 17 March of the basis of his challenge to the intervention notices, and to file any further evidence in support by the same date. A further directions hearing was fixed for 27 March. (2) On 17 March Dr Mireskandari wrote to Russell-Cooke requesting extensive disclosure of documents before he particularised his challenge. The SRA gave its reasons for opposing this request in its skeleton argument for the hearing on 27 March. Dr Mireskandari did not subsequently pursue the matter. (3) On 23 March new solicitors instructed by Dr Mireskandari, R A Rosen & Co, came on the record and requested an adjournment of the hearing fixed for 27 March, apparently on the basis that counsel they wished to instruct, Mr Jay QC, was unavailable on that date. This is another example of Dr Mireskandari changing his legal representation shortly before a hearing. (4) On 27 March Dr Mireskandari, through his new solicitors, issued an application notice asking Blackburne J to recuse himself on the ground of alleged actual bias. On the same day, Blackburne J refused to adjourn the directions hearing and made the unless order to which I have already referred. Directions were also given for trial of the action in July. (5) On 15 April Dr Mireskandari served his second witness statement in support of the recusal application. In this statement, among other things, he expressly confirmed on two occasions that the sole basis of his challenge to the intervention was the point that he had disposed of his practice and was no longer a partner in the Firm at the time of the intervention. He relied on that point as a reason for criticising Blackburne J's order that he should further particularise the grounds for his challenge to the intervention. (6) On 24 April, the last day for compliance with the unless order (and not, as I mistakenly said in paragraph 17 of my judgment of 8 June, ten days after expiry of the deadline), Dr Mireskandari applied for an extension of time to comply with the unless order. In support of the application he said that he had been suffering for approximately one month from a severe infection to his jaw and had been taking heavy medication which had a number of unpleasant and debilitating side-effects. On the same day, according to an email sent on 30 April by R A Rosen & Co to Blackburne J's clerk, R A Rosen & Co informed Dr Mireskandari that they could not act for him in connection with his application for an extension of time. (7) On 29 and 30 April Blackburne J gave various directions in relation to the recusal application. He also fixed the hearing of the extension of time application for 8 May. (8) On 7 May Dr Mireskandari filed his third statement in support of the recusal application, which asserted for the first time (and in apparent contradiction of earlier evidence which he had given) that he was personally involved in the consideration of a private prosecution of Blackburne J at a conference which had taken place between Mr Faryab and counsel in or about 2000. It was this evidence that subsequently led Blackburne J to decide, on the precautionary principle, that he should recuse himself. On the same day Dr Mireskandari filed further evidence in support of the extension of time application, including further medical evidence. (9) On 8 May Blackburne J refused the extension of time application, after a careful consideration of all the medical evidence. Reference may be made to the judgment which he delivered on this occasion for a full account of his reasons. He ordered Dr Mireskandari to pay the costs of the application, including a payment of £8,000 on account, none of which has been paid. As Blackburne J was subsequently to make clear, he had not read Dr Mireskandari's third statement in support of the recusal application when he refused the extension of time application. There was, of course, no way in which he could possibly have known about Dr Mireskandari's attendance at the conference with counsel in or about 2000 unless and until Dr Mireskandari chose to inform him of it. (10) On 18 May, the day fixed for hearing of the recusal application, Blackburne J announced that he had decided to accede to the application, and delivered a judgment giving his reasons for so doing. On this occasion Dr Mireskandari was represented by Mr Vineall QC, instructed by Saunders Bearman. On the same occasion Blackburne J refused Dr Mireskandari permission to appeal against his dismissal of the extension of time application. (11) On 28 May Dr Mireskandari applied to the Court of Appeal for permission to appeal, without at this stage lodging a skeleton argument or any documents in support of the appeal, and without asking for the appeal to be expedited. (12) Finally, on 4 June, only one clear day before the pre-trial review, Dr Mireskandari's solicitors wrote to Russell-Cooke asking for an adjournment of the pre-trial review and of the trial itself. This was, in the event, the principal matter that I had to deal with on 8 June. I dismissed the application, for the reasons which I gave in my judgment. One point to which I would draw particular attention is that Dr Mireskandari, through Mr Vineall QC, now said that he wished to challenge the interventions on three grounds other than those set out in his claim form: first, that the interventions were actuated by discriminatory motives; secondly, that there were no grounds to suspect him of dishonesty, and he had not in fact been guilty of dishonesty; and thirdly, that there were no or no material breaches of the SAR. I need hardly say that this spectacular volte face provides yet another example of Dr Mireskandari's constantly shifting stance in the proceedings. Issue (1): should the court order trial of an issue whether Russell-Cooke were properly instructed by the SRA? Mr Page argued that Russell-Cooke were subject to the conflict of interest which counsel for Dr Mireskandari had identified in the delivery-up proceedings before Blackburne J, and that the existence of this conflict disqualified them from recovering any costs from Dr Mireskandari in the present proceedings. He submitted that the position of Russell-Cooke was "precisely the same" as it would be if they had previously acted for Dr Mireskandari, and that they had in their possession, either themselves or through Mr Ingram, all of Dr Mireskandari's Employment Tribunal papers, including a large quantity of confidential material. He submitted that the principle of Bolkiah's case applied, and it was for Russell-Cooke to demonstrate that the measures taken by them to prevent the disclosure of Dr Mireskandari's confidential papers and information were adequate. Mr Page accepted that a similar submission had been rejected by Blackburne J in the delivery-up proceedings, but argued that his decision did not give rise to an issue estoppel, and was incorrect in law. In particular, he submitted that Blackburne J's ruling on the burden of proof was wrong, and led to the absurd result that a client in Dr Mireskandari's position would have to show that "contamination" had taken place within Russell-Cooke, a burden which it would in practice be all but impossible to discharge. With regard to the dual test laid down by Lord Millett in Bolkiah at 235D-E, Mr Page submitted that Dr Mireskandari should have little difficulty in establishing: (a) that Russell-Cooke were in possession (either themselves or through Mr Ingram) of information which was confidential to him, and to the disclosure of which he had not consented; and (b) that the information either was or might be relevant to the Law Society's defence to his discrimination proceedings. Mr Page relied on Lord Millett's observation at 235E: "Although the burden of proof is on the plaintiff, it is not a heavy one. The former [requirement] may readily be inferred; the latter will often be obvious." He also relied on Lord Millett's further observation at 237G, in connection with the evidential burden on the solicitor's firm to show that there is no risk of contamination once propositions (a) and (b) above have been established: "There is no rule of law that Chinese walls or other arrangements of a similar kind are insufficient to eliminate the risk. But the starting point must be that, unless special measures are taken, information moves within a firm." I am unable to accept these submissions. In my judgment Blackburne J was right to hold that in the present context there could be no conflict of interest of the nature discussed in Bolkiah, for the simple reason that Russell-Cooke have never acted for Dr Mireskandari. Where a solicitor has acted for a client in the past, confidential information relating to the client's affairs will almost inevitably have come into the solicitor's possession in the course of that relationship. In that situation it is clearly appropriate that an evidential burden should rest on the solicitor's firm to show that there is no risk of contamination if it now acts against the same client. By contrast, the only real issue in cases of the present type is the question identified by Blackburne J in paragraph 45 of his judgment of 9 February 2009 (see paragraph 48 above), and attention therefore has to be focused on the precautions that were taken to prevent Dr Mireskandari's confidential papers and information coming into Russell-Cooke's possession during the intervention. As to that, Blackburne J reviewed the evidence before him and concluded that Dr Mireskandari had not begun to discharge the burden of showing that contamination had actually taken place, or that there was any significant risk of it occurring in the future. On the contrary, Russell-Cooke had taken elaborate precautions, including the instruction of independent counsel before the intervention, to ensure that there would be no significant risk of contamination. In those circumstances, the potential conflict of interest identified by counsel for Dr Mireskandari remained purely theoretical, and no burden lay on Russell-Cooke to show that no contamination could occur. I respectfully agree with Blackburne J's analysis of the position, and even if the point is not strictly res judicata I see no reason to suppose that a fresh trial of the issue might lead to a different result. There is, however, another even more fundamental objection to the course of action which Mr Page proposes. Let it be supposed that (contrary to what I have just decided) there was a more than theoretical risk of conflict of interest within Russell-Cooke upon which Dr Mireskandari might arguably have been able to rely. Nevertheless, from the commencement of his claim down to the date of its discontinuance, no serious objection was ever taken by him to Russell-Cooke's acting for the SRA in relation to the intervention and the present proceedings. No injunction to prevent Russell-Cooke from so acting was ever sought or threatened, although I believe it was suggested on one occasion that an injunction might be sought to prevent them from acting in the discrimination proceedings. Thus Russell-Cooke have acted for the SRA throughout the present case without objection from Dr Mireskandari, and in the course of so acting they have incurred costs and disbursements in the usual way. I know of no authority, and none was cited to me, which in such circumstances could disqualify the successful defendant's solicitors from recovering their costs at the end of the case. Issue (2): does the SRA's conduct of the litigation disentitle it to any part of its costs? Under this head Mr Page submitted that the court should have regard to five matters which he said constituted unreasonable conduct of its case by the SRA, such as to justify a reduction of 20% in any costs order in its favour. The first point was that the SRA's adjudication panel had decided to intervene in Dr Mireskandari's practice on the basis, among other matters, of an erroneous statement in the case note that the cash shortfall in the Firm's client account was £77,324.27, whereas the true position (as a careful reading of the relevant part of the first forensic investigation report would have revealed) was that the shortfall had been reduced by a number of subsequently cleared cheques to a figure in the region of £40,000. Mr Page relied on the fact that the panel never met in person and made the decisions to intervene by telephone conference, no note or record of which had been kept. He went so far as to invite the court to infer that the panel had decided to intervene without reading the first forensic investigation report. He submitted that the size of the cash shortage was an important part of the case against Dr Mireskandari, and that it was incumbent on the SRA to examine all of the grounds for intervention with scrupulous care in view of the very serious consequences of any intervention for the solicitor concerned. That an error was made by the panel, either in their deliberations or in the drawing up of the relevant intervention notice, is, I think, undeniable, but I cannot in the circumstances regard it as a very serious one. They had a multitude of matters to consider, and in the public interest they had to reach a decision quickly. The mistake went only to the extent to which the cash shortfall had been rectified. The shortfall should never have been allowed to occur in the first place, and the rectification was only partial. At best, it mitigated the gravity of some of the breaches of the SAR which had occurred, but it had no effect on the basic point that the Firm had apparently committed serious breaches of the SAR for which Dr Mireskandari, as a partner, was personally responsible. It cannot seriously be suggested that the panel's decision would have been any different if the mistake had not been made. In a case of this complexity, with the documentation that the panel had to consider running to several hundred pages, I am not surprised that an isolated error of this nature was made, and I decline to attach any adverse significance to it. Furthermore, I can see nothing to justify the grave accusation that, in dereliction of their duty, the members of the panel failed to read the first forensic investigation report. This point was raised in correspondence last December, when Radcliffes wrote to Russell-Cooke seeking confirmation "that all members of the panel had read all of the documents and that no other documents were before the members of the panel". The confirmation requested was provided by Russell-Cooke in a letter dated 23 December. In the circumstances, I think it is regrettable that Dr Mireskandari should have chosen to instruct his counsel to resurrect this accusation. Mr Page's second and third points concerned the whereabouts of certain files relating to three clients of the Firm on various dates between January and March 2009, and alleged inaccuracies in a witness statement by Mr Gould of Russell-Cooke and in the SRA's skeleton argument for a hearing on 10 March. In my judgment these are relatively trivial complaints, in the context of a large-scale and contentious intervention, and I will not take up time dealing with them in detail. In my view they provide no solid foundation for Mr Page's fourth point, which is that taken together they allegedly "show a degree of incompetence" in the SRA and Russell-Cooke. I refuse to draw any such conclusion, and wish to make it clear that I have seen no evidence which would justify such a criticism of either the SRA or Russell-Cooke. I would make similar comments in relation to Mr Page's final point, which concerned submissions made to me by Mr Malek on 8 June to the effect that Dr Mireskandari had a history of applying for adjournments at the last minute. He submitted that Mr Malek had given me an incomplete description of the hearing which took place before Slade J on 5 November 2008, and that it was unfair to categorise it as a last minute application for an adjournment in view of the arrangements which had previously been made for the hearing to take place on 20 November, and the fact that the hearing had then been moved to 6 November without reference to the Firm. It is true that Mr Malek did not give me the whole picture in relation to this episode at the hearing on 8 June, but I do not criticise him for that. It was only a small part of one among many submissions, and, as Slade J's judgment makes clear, the Firm was indeed applying for the adjournment of a hearing which, by that date, was due to take place on the following day (as in fact it did, when the application was refused). Furthermore, my own experience from 8 June onwards leaves me in no doubt at all about Dr Mireskandari's general propensity to seek last-minute adjournments for inadequate reasons. In the circumstances I am wholly unpersuaded that it would be appropriate to make any percentage reduction in the costs recoverable by the SRA. Issue (3): should Dr Mireskandari be ordered to pay the SRA's costs on the indemnity basis? There was no dispute between the parties about the principles by reference to which the court should decide whether or not to order Dr Mireskandari to pay the SRA's costs on the indemnity rather than the standard basis. So far as material, CPR 44.3(4) and (5) provide as follows: "(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including – (a) the conduct of all the parties; (b) whether a party has succeeded on part of his case, even if he has not been wholly successful … (5) The conduct of the parties includes – (a) conduct before, as well as during, the proceedings … (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended his case or a particular allegation or issue …" The two bases of assessment are set out in CPR 44.4(1), which provides that: "Where the court is to assess the amounts of costs (whether by summary or detailed assessment) it will assess those costs – (a) on the standard basis; or (b) on the indemnity basis, but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount." By virtue of CPR 44.4(2), where the amount of costs is to be assessed on the standard basis, the court will only allow costs which are proportionate to the matters in issue, and will resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party. Paragraph (3) of the rule then says that, where the assessment is on the indemnity basis, "the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party." There are accordingly two main differences between assessment on the standard basis and assessment on the indemnity basis. Where an indemnity order is made, the burden of showing that any costs were unreasonable lies on the paying party, not the receiving party. Secondly, the requirement of proportionality does not apply, at any rate expressly, in relation to an order on the indemnity basis. The latter difference was described as "a matter of real significance" by Lord Woolf CJ in Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson [2002] EWCA Civ 879 at paragraph 15, although a contrary view was expressed by Lord Scott of Foscote in Fourie v Le Roux [2007] UKHL 1, [2007] 1 WLR 320, at paragraph 39 ("The criterion of proportionality, which applies only to standard basis costs, seems to me to add very little to the reasonableness criterion"). In the Excelsior case, the Court of Appeal declined to lay down any detailed guidelines for the assistance of lower courts in deciding whether indemnity orders should be made. As Lord Woolf said in paragraph 32: "In my judgment it is dangerous for the court to try and add to the requirements of the CPR which are not spelt out in the relevant parts of the CPR. This court can do no more than draw attention to the width of the discretion of the trial judge and re-emphasise the point that has already been made that, before an indemnity order can be made, there must be some conduct or some circumstance which takes the case out of the norm. That is the critical requirement." To similar effect, Waller LJ said at paragraph 39: "The question will always be: is there something in the conduct of the action or the circumstances of the case which takes the case out of the norm in a way which justifies an order for indemnity costs?" Laws LJ agreed with both judgments: see paragraph 42. Despite the clear warning given by the Court of Appeal in Excelsior, the temptation to provide a list of relevant guiding factors has not been resisted by all judges. I will yield to the temptation only to the extent of citing one principle identified by Tomlinson J in Three Rivers District Council and others v The Bank of England [2006] EWHC 816 (Comm) in paragraph 25 of his judgment: "Where a claim is speculative, weak, opportunistic or thin, a claimant who chooses to pursue it is taking a high risk and can expect to pay indemnity costs if it fails." I emphasise, however, that I would not for myself regard that as a guiding principle in the true sense, but rather as an illustration of one type of factual situation which the court may well conclude takes a case out of the norm. I will begin my consideration of this question with Dr Mireskandari's pleaded case. The grounds of challenge to the interventions set out in paragraph 5 of his claim form rely on his "sabbatical", the alleged cessation of his partnership in the Firm, and the proposition that he had no interest in the Firm on the dates of the intervention resolutions. It is clear from the contemporary correspondence that these steps were taken by Dr Mireskandari with the deliberate object of preventing any intervention into his practice by the SRA: see Radcliffes' letter of 6 November 2008 to Russell-Cooke and paragraph 31 above. The assignment of his full equity interest in the Firm to Mr Tehrani, which for present purposes I will assume took place on 11 December 2008, was no doubt intended to strengthen his position in this respect. However, the proposition that Dr Mireskandari could avoid an intervention by the simple expedient of taking a sabbatical of indefinite duration, and assigning his equity interest in the Firm to a friendly third party and former business associate, is in my judgment one that could never have had any reasonable prospect of success. Whatever the position may have been as between Dr Mireskandari and Mr Tehrani, or as between Dr Mireskandari and the other fee-earners at the Firm, he had apparently taken no steps before the interventions either to notify the Firm's clients of these developments or to obtain their informed consent to the discharge of their existing retainers of the Firm and their replacement with retainers of Mr Tehrani. In the absence of clear evidence of a contractual novation on the part of every existing client of the Firm, the suggestion that Dr Mireskandari had no practice left to intervene in was in my view always a hopeless one, and the inference that he was cynically doing his best to prevent an intervention by the regulatory body of his own profession is all but irresistible. Furthermore, the grounds relied upon in the claim form disclose no basis of challenge whatever to the SRA's decisions to intervene. The propriety of the interventions depended (in relation to the first intervention) on the existence of "reason to suspect dishonesty", and (in relation to the second intervention) on the SRA being satisfied that Dr Mireskandari had breached the SAR. Dr Mireskandari's sabbatical, alleged retirement, and transfer of his equity interest, were all completely irrelevant to the question whether those threshold conditions were satisfied. In those circumstances, the only issue for the court at the trial of the claim would have been the single issue whether the intervention notices should be withdrawn: see Sheikh v The Law Society [2006] EWCA Civ 1577, [2007] 3 All ER 183, at paragraphs 87 to 90 per Chadwick LJ. In considering that issue, the court would be obliged to "have regard to the views of The Law Society as the professional body charged by statute with the regulation of solicitors" (paragraph 90), and the issue of dishonesty would arise (if at all) only in the context of deciding whether the intervention should continue (ibid). In view of the numerous and serious grounds upon which the decisions to intervene were founded, it seems to me inconceivable that, in the absence of cogent and convincing explanations for his conduct by Dr Mireskandari, there could have been any realistic prospect of the SRA changing its mind and accepting that the interventions could safely be withdrawn. Similarly, there could have been no reasonable prospect of the court reaching any different conclusion. Yet Dr Mireskandari's claim form, and his witness statement of 23 December 2008, which still remains the only evidence ever filed by him in support of his claim, provide next to nothing in the way of explanation, rebuttal or extenuation of the very detailed case deployed against him by the SRA. It is against this background that the consistent failure by Dr Mireskandari to take advantage of the numerous opportunities which he has had to explain his conduct must be evaluated. He had the opportunity to do so either in the proceedings (by complying with Blackburne J's order of 10 February 2009) or outside the proceedings (for example in correspondence). Yet he has not done so. Instead, he has employed diversionary tactics of every kind, including the delivery-up proceedings, the accusations of bias which finally led Blackburne J to recuse himself, the repeated attempts to adjourn the trial, the making of unjustified disclosure applications, the indiscriminate levelling of charges of professional misconduct against the SRA and its lawyers, and all the other matters to which I have already drawn attention in this judgment. I deliberately leave out of this list Dr Mireskandari's repeated complaints of discrimination against him on racial and/or religious grounds, because they are the subject of separate proceedings and it would be wrong for me to prejudge their outcome by expressing any view on whether his complaints are well-founded. None of this diversionary activity can disguise the gaping hole at the heart of Dr Mireskandari's case, which is the total absence of any plausible reason for withdrawal of the intervention notices even though it is now more than seven months since they were served. This is all the more extraordinary in the light of the well-established principle that the procedure for challenging an intervention is inherently a summary one which should be dealt with as speedily as possible: see my judgment of 8 June at paragraphs 45, 46 and 49, and see too the observations of the Court of Appeal in Sheikh v The Law Society at paragraphs 110 to 114. A striking, if belated, recognition of the lack of merit of Dr Mireskandari's pleaded case may be found in the grounds of appeal dated 28 May 2009 which were filed in support of his application for permission to appeal against Blackburne J's refusal to extend time for compliance with the unless order. In paragraph 4 of the grounds, which were settled by Dr Mireskandari's solicitors, it was said on two occasions that the judge's refusal to extend time rendered his Part 8 claim "unarguable", and also (in the concluding sub-paragraph) that it left him in a position where "he had little or no prospect of success". In all the circumstances, I have no hesitation in concluding: (a) that Dr Mireskandari's claim was from its inception a hopeless one; and (b) that his conduct of the proceedings has throughout been unreasonable to a high degree. These factors alone are more than enough to take the case out of the normal run and to justify an order for costs on the indemnity basis. That is accordingly the order which I propose to make. The SRA's submissions in support of its application for indemnity costs were very detailed and elaborate. They included a minute examination of the whole history of the proceedings, a review of the merits of each of the grounds relied upon in support of the interventions, and reference to a number of other occasions on which courts have made adverse findings against Dr Mireskandari which reflect on his integrity or when he is said to have acted unreasonably. Although Mr Malek disclaimed any such intention, I felt at times as though I were being asked to conduct a mini-trial of the case on the documents, even though Dr Mireskandari had discontinued his claim and I had heard no oral evidence. In my view there was an element of over-kill in this approach, and it made the question of indemnity costs much more complicated than it needed to be. Mr Malek implicitly, and at times explicitly, invited me to emulate the approach of Tomlinson J in the Three Rivers case, where he delivered a lengthy and detailed judgment explaining his decision to award costs on the indemnity basis against the claimant liquidators of BCCI when they finally discontinued their claim. However, the circumstances in that case were very different. In the first place, it was litigation on a massive scale, and the notice of discontinuance was not served until Day 256 of the trial. Secondly, it involved allegations of dishonesty and misconduct, of the utmost gravity, against the Bank of England and over forty officials. Thirdly, a vast amount of oral evidence had already been heard when the case came to its abrupt end, and cross-examination of the Bank's witnesses was interrupted in mid-flow. In that situation it was entirely appropriate for Tomlinson J to deal with the question of costs at considerable length. In the present case, by contrast, the trial proper had not begun (although I had done a good deal of pre-reading), no oral evidence was given, and the trial would have been confined to the very limited grounds of challenge set out in Dr Mireskandari's claim form. There is in my judgment a further reason why it would be most undesirable for me to go into the SRA's allegations of dishonesty and breaches of the SAR against Dr Mireskandari, or to express any concluded views on the merits of those allegations. As I understand it, they have all, or virtually all, been referred to the SDT, and will therefore be the subject of disciplinary proceedings in due course. That will be the occasion for the merits of the allegations to be fully investigated and for evidence to be given on both sides. In my view I should say as little as possible in this judgment about matters that the SDT will have to consider. What I can and will say, without in any way seeking to prejudge the issues to be determined by the SDT, is that on the basis of all the material I have read, and the extensive written and oral submissions advanced to me, I am abundantly satisfied that: (a) there were very strong prima facie grounds to suspect Dr Mireskandari of dishonesty when the first intervention notice was served; and (b) the SRA had every reason to be satisfied that serious breaches of the SAR had occurred, for which Dr Mireskandari bore personal responsibility, at the time when the second notice was served. Furthermore, as I have already noted, Dr Mireskandari has not taken the opportunities open to him to mount, if he could, a convincing defence to the charges. At best, he has provided some partial explanations which seem to me to give rise to as many questions as they answer. One is left wondering why, if Dr Mireskandari does have a full and convincing defence to the charges against him, he did not take steps to advance it at the earliest opportunity. Issue (4): the costs of the recusal application I have already given brief details of some of the main steps in the recusal application: see sub-paragraphs 52(4), (5), (7), (8) and (10) above. It is unnecessary for me to set out the history of the application at any great length, because it is fully described in the judgment which Blackburne J delivered on 18 May 2009. One additional point which needs to be emphasised is that the SRA was throughout neutral in relation to the application, although it provided assistance to the court by ensuring that the necessary evidence to put the application in context was before the judge: see in particular Mr Gould's witness statement of 24 April. As initially advanced, the application was put on two main grounds: actual bias allegedly shown by Blackburne J in rulings which he had made earlier in the proceedings, and the alleged involvement of a Mr Faryab as a "significant witness central to the intervention" (to quote from the application notice of 27 March). As Blackburne J explained in his judgment of 18 May, in the second half of the 1990s he had tried and dismissed a claim by Mr Faryab against a Miss Smyth. In the course of his judgment in that case, he had made adverse remarks about Mr Faryab's credibility. Mr Faryab appealed, unsuccessfully, against the judgment, and then embarked upon a campaign to discredit Blackburne J, although Blackburne J was wholly unaware of Mr Faryab's campaign against him (and others) until he saw Dr Mireskandari's first witness statement in support of the recusal application. According to Dr Mireskandari, he assisted Mr Faryab in the earlier court case and gave evidence on his behalf. He expressed concern that Mr Faryab was "one of the main witnesses relied upon" by the SRA in making their decisions to intervene into his practice. The suggestion appeared to be that, because Dr Mireskandari had assisted Mr Faryab at the earlier trial some 12 years ago, and because the SRA had supposedly relied on extensive information supplied by Mr Faryab in deciding to intervene, and because Blackburne J had not accepted Mr Faryab as a truthful witness, the conclusion somehow followed that the judge was biased against him in the present proceedings. In truth, the suggestion was both incoherent and absurd. Moreover, Mr Malek made it clear on behalf of the SRA at an early stage that the SRA would not be advancing any contention at trial which depended upon the evidence of Mr Faryab. In paragraph 12 of his judgment of 18 May, Blackburne J said this in relation to the grounds hitherto relied upon by Dr Mireskandari in support of the application: "As to the grounds to my recusal, I make it clear that, having carefully considered the authorities referred to in the skeleton argument of Mr Nicholas Vineall QC, who now represents Dr Mireskandari at today's hearing, I am wholly unpersuaded that any of my rulings in the course of these intervention proceedings provides the slightest basis for recusal, either when considering those rulings individually or when considering them collectively. I do not propose to take up any time dealing with those matter." It is only necessary to add that, at the hearing in the Court of Appeal on 8 July, Mr Vineall was apparently asked by the court whether he wished to place reliance upon any of those grounds, and made it clear that he did not. Blackburne J went on to explain why he had finally decided to recuse himself. In his earlier evidence, Dr Mireskandari had appeared to make it abundantly clear that he was "in no way involved in, and indeed deplored, Mr Faryab's campaign" against Blackburne J: see paragraph 17 of the judgment, and the extract from Dr Mireskandari's witness statement of 15 April quoted in paragraph 18. Blackburne J then continued: "19. That being so, I felt and still feel, quite unable to see how the fact that Mr Faryab was an employee of Dr Mireskandari's firm and the fact that Dr Mireskandari assisted Mr Faryab at the trial 12 years ago, could possibly justify my recusal. Not least of the considerations here was that, as I explained to the parties at an earlier hearing, and as can be seen from the transcript of the judgment in the Faryab v Smyth case, Dr Mireskandari was a witness, along with a great many others, and that I accepted him as a truthful witness. Any suggestion that Dr Mireskandari should stand tainted in my estimation of him because of his past association with Mr Faryab, seemed to me, and still seems, far fetched. No judge thinks ill of a person merely because one of his associates, even a personal friend, turns out to be dishonest and vindictive. 20. What has now changed is a suggestion which Dr Mireskandari now makes – it first surfaced in his witness statement of 7 May – which is that so far from having had no involvement in Mr Faryab's attempts to mount a prosecution against me and others, he was indeed involved in the steps taken to investigate on Mr Faryab's behalf, whether a prosecution should be mounted against me." Blackburne J then quoted from Dr Mireskandari's witness statement of 7 May a passage referring to a conference arranged with counsel at the offices of Tehrani & Co, during which "to my surprise, Mr Faryab for the first time stated that he wanted to bring a private prosecution against Mr Justice Blackburne". Two supporting witness statements, from Mr Tehrani and a Ms Sokhal, appeared to provide confirmation that a discussion of this nature had indeed taken place at a conference with counsel at which Dr Mireskandari was present. The judge continued: "24. I cannot help feeling some scepticism about this last minute disclosure given Dr Mireskandari's earlier disavowal of any involvement. But I have come to the view that, if, as he now appears to be saying, Dr Mireskandari did have a part, even if initially unwittingly, in investigating whether I should be prosecuted for misfeasance in the conduct of Mr Faryab's claim against Miss Smyth all those years ago, a fair-minded and informed observer might conclude that there was a real possibility that I would be biased against Dr Mireskandari, even if that bias might be entirely unconscious on my part. 25. I am also most concerned that these proceedings should not become side-tracked or taken over by a dispute over whether I should be the judge who hears the matter … I would merely observe that the late and self-serving appearance of Dr Mireskandari's disclosure sits ill with his earlier disavowal of any involvement, let alone the fact that any question of my recusal only surfaced in [early] March, notwithstanding earlier hearings, including separate proceedings brought by Dr Mireskandari against the Law Society and others which I heard in January [i.e. the delivery-up proceedings], at which Dr Mireskandari was represented by solicitors and counsel, and in which no question arose and no suggestion was mentioned that I might not, for reasons of which at that stage I was wholly unaware, be the appropriate judge to hear the matter. 26. Bearing in mind, therefore, what was described in one of the earlier authorities on the topic of recusal as the so-called precautionary principle, (see CAWG Group v Morrison [2006] 1 WLR 1163) I consider that the sensible course is to stand down from these proceedings and let another judge take over from me." Mr Page submitted that the SRA must be taken to have opposed Dr Mireskandari's application that Blackburne J should recuse himself, because it filed evidence in relation to the application. Accordingly, he said, despite its protestations of neutrality, the SRA should be ordered to pay Dr Mireskandari's costs of the application as the losing party, such costs to be set off against the costs awarded to the SRA. Alternatively, Mr Page submitted that, if the SRA was indeed neutral, it had no costs to recover. Nobody asked the SRA for assistance, and it could not generate recoverable costs by officious intervention. In answer to specific points made by the SRA in its skeleton argument, Mr Page further submitted: (a) that Blackburne J did not reject any grounds for recusal, but directed a hearing to deal with all of the grounds and then, before hearing them, recused himself on one specific ground; (b) that the disclosure applied for by Dr Mireskandari, which Blackburne J refused to order at a hearing on 30 April, was directly relevant to the issue on which he did recuse himself; (c) that Blackburne J made no positive finding that the grounds for recusal had been manufactured by Dr Mireskandari, and if he had thought that to be the case he would not have recused himself; and (d) that the SRA has been careful not to deny that the intervention was based wholly or in part upon information obtained from Mr Faryab. I am unable to accept these submissions. In my judgment the recusal application, as originally formulated, was obviously hopeless, and was rightly dismissed out of hand by Blackburne J in paragraph 12 of his judgment. The sole ground upon which he did decide to recuse himself appeared for the first time in Dr Mireskandari's witness statement of 7 May 2009. The critical evidence had not been foreshadowed in any of his earlier statements, and it related to matters of which Blackburne J could have had no personal knowledge. Furthermore, it post-dated the disclosure application, which Blackburne J dismissed on the ground that it had "all the hallmarks of a fishing expedition": see paragraph 19 of his judgment of 30 April. As regards the position of the SRA, I see no reason to doubt that its neutrality was genuine, or that the evidence which it filed assisted the court in resolving the question. More generally, it is important to bear in mind that, although the recusal application eventually succeeded, it would not have needed to be made in the first place if Dr Mireskandari had not chosen to begin the present action, an action which I have found to lack any merit and in respect of which I am going to make an indemnity costs order in favour of the SRA. Finally, it should be noted that Blackburne J was clearly sceptical about the last-minute evidence produced by Dr Mireskandari, not least because it appeared to contradict earlier evidence which he had given in support of the same application. I fully share Blackburne J's scepticism, and respectfully agree with the observations he made in paragraphs 24 and 25 of his judgment. Taking all these factors into consideration, I have concluded that Dr Mireskandari should also be ordered to pay the SRA's costs of the recusal application on the indemnity basis. This conclusion may be reached by either of two routes, or indeed a combination of them. First, the application was unreasonable both in its inception and the manner in which it was prosecuted by Dr Mireskandari, and there are grounds for considerable scepticism about the basis on which it ultimately succeeded. The role played by the SRA was entirely proper, and most of the costs incurred by the SRA related to the misconceived original grounds for the application and the unnecessary disclosure application. Secondly, and perhaps more simply, the costs should be treated as costs in the case, because the application was made in the course of proceedings which I have found to lack merit and to justify an award of costs on the indemnity basis. The SRA did not cause Dr Mireskandari to incur any particular costs in respect of the application, and it is fair that the SRA's costs should be dealt with in the same way as the costs of the main action. Issue (5): should an interim payment on account of costs be made, and if so what amount? The SRA has produced an estimate of its costs dated 14 July 2009 in a total sum of just under £516,000 inclusive of VAT. The estimate is divided into two periods: the period prior to 1 June 2009, in respect of which an estimate had already been filed for the listing questionnaire, and the period from 1 June to 15 July inclusive. The estimated costs for the first period come to just under £352,800, the main components of which are Russell-Cooke's profit costs (£140,266.30), counsels' fees (£147,000) and the costs of the recusal application (£16,148.10), in each case plus VAT. No more detailed breakdown than this is available. The estimate for the second period, supported by an attached statement of costs, totals approximately £163,180, the main components of which are profit costs of £47,602 and counsels' fees of £90,075, again plus VAT. CPR 44.3(8) provides that "Where the court has ordered a party to pay costs, it may order an amount to be paid on account before the costs are assessed." As the notes in paragraph 44.3.15 of the White Book make clear, the normal practice is to make an interim order not exceeding the minimum amount that the court thinks the successful party is likely to recover on detailed assessment, although the general rule will always yield to the requirements of justice in the particular case. Among the points taken by Mr Page was a submission that the SRA's costs estimate in the present case is so high that the court should refuse to order any interim payment at all. I disagree. If the court considers that a costs estimate is unreasonably high, the court will tailor the interim payment accordingly, but it is not a good reason for refusing to make any interim payment at all. Furthermore, although the total amount of the SRA's estimated costs is high, I am satisfied that Dr Mireskandari's conduct of the case has made it an exceptionally difficult and time-consuming one for the SRA and its lawyers to deal with. I am also encouraged to order an interim payment by the fact that Dr Mireskandari has failed to pay a penny in respect of the costs orders already made against him in the proceedings (whether by way of summary assessment or earlier orders for interim payment), although he evidently has the resources to instruct leading counsel of his choice whenever it suits him to do so. I was provided with a schedule of unpaid costs orders which totals no less than £157,056.24 (inclusive of VAT, but excluding interest). This is just one further facet of the wholly unreasonable way in which Dr Mireskandari has conducted these proceedings. Mr Page took a number of other points in relation to the amount claimed. He submitted that, since the only factual issues in the claim were those raised in Dr Mireskandari's claim form, and he had never been permitted to expand them, it was unreasonable for the SRA to prepare for trial on the basis that the grounds for intervention would be in issue. He submitted that the amount claimed for counsels' fees before 1 June was excessive, and that many of the hearings could have been dealt with by junior counsel alone, especially at Mr Tabachnik is a very experienced junior and has been instructed throughout. He submitted that an unnecessarily large number of fee earners had attended the various directions hearings, and that costs had sometimes been increased by the SRA's habit of serving applications at a late stage (he instanced in particular some complaints on this score made by Dr Mireskandari and Ms Turbin at the hearing on 10 March 2009). Finally, he suggested that the SRA's estimate did not properly allow for overlap with work done in allied proceedings, including the SRA's separate interventions into the Firm and into Ms Turbin's practice, and that the 80%/20% split adopted by the SRA for composite work done relating to the interventions into the practices of Dr Mireskandari and Ms Turbin respectively was inappropriate and should be replaced with a 50/50 split. Taking the last points first, I can see no good reason at this stage to question the broad estimate made by the SRA of the appropriate division of time spent, both between the present claim and other related proceedings, and specifically between this claim and Ms Turbin's claim. The 80%/20% split is in line with my own experience of dealing with claims by both Dr Mireskandari and Ms Turbin since early June, and reflects the fact that Ms Turbin has throughout been a litigant in person, and has pursued her case in a moderate and reasonable fashion. I am equally unimpressed by the submission that the SRA ran up costs unnecessarily by preparing for trial on a broad basis. Not only was this the only prudent course to follow, in the light of the directions for trial given in March and Dr Mireskandari's avowed intention of broadening its scope, but even on the pleadings as they stood the wider picture was still relevant to the issue whether the intervention notices should be withdrawn: see paragraph 74 above. As to Mr Page's remaining points, there may be some force in some of them, but that is not a matter which I can determine at this stage and they will have to await the detailed assessment. I remind myself, however, that the burden of showing that any costs were unreasonably incurred will rest upon Dr Mireskandari, because the costs are to be assessed on the indemnity basis. Mr Malek submitted that I should order a payment on account of £300,000, or in other words approximately 58% of the estimate. In my judgment that is a reasonable figure in all the circumstances, and I will so order. I will also direct the costs to be paid without set-off or deduction. Mr Page opposed the making of a direction in those terms, but the Court of Appeal thought it appropriate to do so, having heard argument on the point, when it dismissed Dr Mireskandari's application for permission to appeal with costs summarily assessed in the sum of £20,000, and I see no reason to take a different view. In the absence of such a direction, it seems to me all too predictable that Dr Mireskandari will attempt to rely on his damages claim in the discrimination proceedings as a reason for paying no costs at all at this stage. Issue (6): should Dr Mireskandari's witness statement of 29 June be open to public inspection? I have already given a brief description of this witness statement in paragraphs 17 and 18 above. The relevant provisions of CPR 32.13 read as follows: "(2) Any person may ask for a direction that a witness statement is not open to inspection. (3) The court will not make a direction under paragraph (2) unless it is satisfied that a witness statement should not be open to inspection because of – (a) the interests of justice; (b) the public interest; … (d) the nature of any confidential information (including information relating to personal financial matters) in the statement; or (e) the need to protect the interests of any child or protected party. (4) The court may exclude from inspection words or passages in the statement." The SRA invites the court to make an order under CPR 32.13(2) for a number of separate reasons. First, the evidence contained in the statement is, almost without exception, clearly outside the limited scope of the permission which I gave on 8 June for the service of evidence in reply. Secondly, it contains much material which, on any view, is wholly irrelevant to the present case. Thirdly, it deals at length with Dr Mireskandari's allegations of discrimination and victimisation by the SRA, even though those issues are the subject of separate proceedings, and Dr Mireskandari expressly accepted in his earlier statement of 23 December 2008 that such allegations were a matter for the Employment Tribunal. Fourthly, the statement contains much material of a scandalous and defamatory nature, and the SRA is understandably concerned that Dr Mireskandari may seek to deploy this material in the public arena with the benefit of the absolute privilege afforded to a litigant. In his skeleton argument Mr Page said that Dr Mireskandari had no submissions to make as to whether the statement should be open to inspection. By the date of the hearing, however, Dr Mireskandari had evidently changed his mind, and instructed Mr Page to oppose the application. Mr Page did not dispute that some of the material in the statement should be excluded, but submitted that a redaction exercise could and should be performed, with a view to ensuring that only the truly offensive material was excluded from public inspection. I consider that I should make the direction sought by the SRA. As I have already made clear, the statement was served in almost complete disregard of the order which I made on 8 June, and the quantity of objectionable material contained in it is very large. For a solicitor and officer of the court to serve such a witness statement is, in my judgment, truly deplorable. It is not for the court, or the SRA, to become engaged in a redaction exercise that Dr Mireskandari should have performed for himself, and the fact that he now opposes the application can only increase the court's disquiet about the uses to which he intends to put the statement. In my view the interests of justice require that no part of it should be open to inspection, and I will so order.

Summary Michaelmas Term [2009] UKSC 5 On appeal from: [2009] EWCA Civ 545 JUDGMENT In re B (A Child) (2009) (FC) before Lord Hope, Deputy President Lady Hale Lord Collins Lord Kerr Lord Clarke JUDGMENT GIVEN ON 19 November 2009 Heard on 14 October 2009 Appellant (GB) Alison Ball QC Peter Horrocks (Instructed by Powleys)             Respondent (RJB) Pamela Scriven QC Cherie Parnell (Instructed by Allan Rutherford Solicitors)               Respondent (GLB) In Person LORD KERR This is a judgment of the Court. This appeal requires a revisiting of a vexed but highly important topic. The significance of parenthood in private law disputes about residence and contact has exercised many courts over many years but one might have thought that the final word on the subject had been uttered in the comprehensive and authoritative opinion of Baroness Hale of Richmond in In re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43, [2006] 1 WLR 2305. As this case illustrates, however, misunderstandings about the true import of that decision and the applicable principles persist. The case concerns a young boy whom we will call Harry, although that is not his real name. Harry will be four years old in December of this year. Until recently, apart from at weekends, he has lived continuously with the appellant, GB, who is his maternal grandmother. On 6 March 2009 Lowestoft Family Proceedings Court made a residence order in favour of GB. A contact order allowing staying contact with both parents was also made. The orders of the Family Proceedings Court were appealed by Harry's father RJB to the Family Division. His Honour Judge Richards, sitting as a High Court Judge, heard the appeal on 3 April 2009 and he made an order which, among other things, directed that there should be a transfer of residence to the father on 25 April. GB appealed Judge Richards' order and her appeal was heard by the Court of Appeal (Wall and Elias LJJ) on 21 May 2009. At the conclusion of the hearing, the court dismissed the appeal and stated that the reasons for dismissal would be given later. Permission to appeal to the House of Lords was refused. The reasons for dismissing the appeal were provided in a judgment handed down on 11 June 2009. A stay on the transfer of residence was granted on that date to allow GB to petition the House of Lords for permission to appeal. It was a condition of the grant of the stay, however, that Harry should have contact with his father from Thursday afternoon until 4 pm on Monday each week. That level of contact continued until the hearing of the appeal before this court. Permission to appeal was granted on 30 July 2009 and the appeal was heard on 14 October. Both GB and RJB were represented on the appeal. Harry's mother, GLB, appeared on her own behalf and her only – albeit important – submission to this court was to the effect that she wanted the best for her son. When the hearing ended, this court announced that the appeal would be allowed for reasons that we would provide at a later date. This judgment contains those reasons. Family Background Harry's parents met in the autumn of 2004. They separated in April 2005, eight months before Harry was born. GB has been principally responsible for caring for him from the time of his birth. Indeed, she was present when he was born and immediately afterwards he went to live in her home. Until the order of the Court of Appeal giving extended contact to his father, Harry has lived there ever since. Neither of Harry's parents was able to care for him satisfactorily in the first years of his life. His mother, GLB, lived with her mother and Harry intermittently at GB's home from the time that he was born until July 2006. She left GB's home then and has not returned. On 9 November 2006 GB was granted a residence order. This was made on consent. At the same time a parental responsibility order was made in favour of Harry's father, RJB. This also appears to have been made on consent. Thereafter he spent a night and a day of every weekend with each of his parents in turn. In July 2007, Harry's father was convicted of racially aggravated assault. He was sentenced to a term of imprisonment. It is not clear whether this term was twelve or eighteen months but that is not important in relation to the issues which arise on the appeal. While in prison RJB met SB, the sister of another inmate. On his release in March 2008 they formed a relationship and they married some time later. On 11 February 2009 their daughter was born. SB also has an older daughter of about the same age as Harry from an earlier relationship. The older daughter lives with RJB, SB and the daughter born in February 2009. RJB has a much older son from another relationship but there is no contact between this son and his father. GB has not been without difficulties in her personal life. Tests have revealed that she has had a high alcohol consumption level in the past. She has a conviction for driving with excess alcohol and she has been the victim of domestic violence. Some episodes of this violence occurred in Harry's presence but the person who was responsible for them no longer lives with GB. The Family Proceedings Court Hearing On 28 May 2008 Harry's mother applied for a residence order. In the course of the proceedings which followed, Harry's father made his own application for a residence order. Despite having applied herself for a residence order, Harry's mother supported the father's application. The order of 9 November 2006 in favour of GB was, of course, still in force at this time and she made plain her wish to continue to care for Harry. A report from a social care manager of the local authority, AW, was prepared for the hearing pursuant to section 7 of the Children Act 1989. It is dated 4 January 2009. It is not clear whether AW spoke to SB, the wife of Harry's father, but he certainly spoke to Harry's grandmother and to both his parents. AW considered that Harry was thriving in the care of his grandmother. He enjoyed contact with other family members, however, and had developed positive relationships with them. AW concluded that Harry's mother was not capable of providing a safe and stable environment for Harry. While there were some concerns about GB, AW reached the view that she had proved capable of meeting Harry's needs. In relation to Harry's father, AW said this: "In my opinion, there is very little in [RJB's] commitment, motivation and capabilities to indicate that he could not meet [Harry's] needs. He is in a secure relationship and can provide stability to his son. He and his wife possess the necessary knowledge and skills to raise a child healthily. Their situation with the birth of their child places them in an untested situation that only a period of time would resolve." AW considered that to transfer Harry's residence to his mother or father would have "a significant impact" on him. In his view, the stability and security that Harry enjoyed was due to the consistency and predictability of his grandmother's care. He had begun to form his first significant peer relationships at nursery and a move away from this would be disruptive for him. AW concluded therefore that, while Harry's placement with GB was not perfect, on balance it should continue. A sentence in the conclusion section of AW's report has proved to be somewhat controversial in the case. It was to this effect: "In my opinion there needs (sic) to be compelling reasons to disrupt [Harry's] continuity of care and the consistency and predictability that accompanies (sic) it." The justices used the same formulation in the pro forma document that recorded the reasons for their decision. Incongruously, however, this appeared as the final paragraph in the section of the form that recorded findings of fact. It read: "We have not found compelling reasons to disrupt [Harry's] continuity of care and the consistency and predictability that accompanies (sic) it." Plainly, this was a verbatim quotation from AW's report. It has been suggested that the justices fell into error in stating that they required compelling reasons to remove Harry from his grandmother's care. We do not accept that suggestion. In the first place, the justices did not say that they required compelling reasons – merely that they did not find such reasons. More importantly, taken as a whole, the pro forma that the justices prepared points unmistakably to their having conducted a careful weighing of the various factors that bore directly on what was in Harry's best interests. Thus, for instance, they reviewed his development while in the care of GB; noted that she had facilitated contact with both Harry's parents, even when his father was in prison; noted the risk of harm if he was moved; recorded that he had good relationships with both parents and his grandmother, all of whom were significant in his life; and expressly stated that they had balanced all interests in making their decision and had treated Harry's welfare as paramount. We are satisfied, therefore, that the justices did not consider that compelling reasons were an essential prerequisite to any alteration of the status quo. It is perhaps unfortunate that the social care manager made the 'compelling reasons' reference and unfortunate too that it was incorporated by the justices in their statement of reasons but one should guard against an overly fastidious approach in parsing the contents of such statements. Isolated from its context, the phrase is redolent of an over-emphasis on the importance of continuing what had gone before but we have concluded that, on a fair reading of the entire statement, it can be confidently said that this did not happen. The decision of Judge Richards In para 21 of his judgment, Judge Richards acknowledged that the justices had taken all the evidence into account and that their recorded reasons betokened a very careful weighing of that evidence. He concluded, however, that they had been "distracted by their consideration of the settled way in which [Harry] has been brought up." (para 29) The judge referred to the decision of In re G, (which had received a passing reference in the justices' statement of reasons that we will consider later in this judgment). He suggested, at para 23, that the House of Lords had made clear in that case that "in the ordinary way … the rearing of a child by his or her biological parents can be expected to be in the child's best interests, both in the short term and, more importantly, in the longer term". For reasons that we shall give presently, we do not consider that this is a proper representation of the decision in In re G and we believe that it was the failure to properly understand the burden of the decision in that case that led the judge into error. The theme that it was preferable for children to be raised by their biological parent or parents was developed by the judge in paras 24 and 25 of his judgment. He stated that it was the right of the child to be brought up in the home of his or her natural parent. (It is clear from the context that the judge was using the term 'natural parent' to mean 'biological parent'.) We consider that this statement betrays a failure on the part of the judge to concentrate on the factor of overwhelming – indeed, paramount – importance which is, of course, the welfare of the child. To talk in terms of a child's rights – as opposed to his or her best interests – diverts from the focus that the child's welfare should occupy in the minds of those called on to make decisions as to their residence. The distraction that discussion of rights rather than welfare can occasion is well illustrated in the latter part of Judge Richards' judgment. In paras 28 and 30 he suggested that, provided the parenting that Harry's father could provide was "good enough", it was of no consequence that that which the grandmother could provide would be better. We consider that in decisions about residence such as are involved in this case; there is no place for the question whether the proposed placement would be "good enough". The court's quest is to determine what is in the best interests of the child, not what might constitute a second best but supposedly adequate alternative. As the Court of Appeal pointed out at para 61, the concept of 'good enough' parenting has always been advanced in the context of public law proceedings and of care within the wider family as opposed to care by strangers. Judge Richards acknowledged that he could only reverse the decision of the justices if he came to the conclusion that they were plainly wrong. He explained his reasons for coming to that conclusion in the following passage from para 29: "… I have come to the view, applying as I do the test of whether this was plainly wrong, that in circumstances where it is clear that the father can meet this child's needs that he would have a settled and established home with his own family, that the justices were plainly wrong in coming to their conclusion that [Harry] should remain with his grandmother." After the judge had delivered his judgment, counsel on behalf of Harry's grandmother applied for leave to appeal. She submitted that the judge had attached undue importance to what he perceived to be the desirability of Harry being brought up by his biological parent and that he had been thereby distracted from concentrating on Harry's welfare. The judge rejected that submission, stating: "For my part, I hope I made it clear that [Harry's] welfare is, and remains, the paramount consideration. The test that the justices should have applied was the welfare test. That is the test that I apply as well." In fact, at no point in his judgment did the judge say that Harry's welfare was the paramount consideration. We do not suggest that this statement requires to be intoned like a mantra on every occasion that a judgment on the residence of a child is given. Often it will be clear from the approach of the judge that this fundamental consideration underlay his or her reasoning. In the present case, however, we are satisfied that the judge, notwithstanding what he said in refusing leave to appeal, did not afford Harry's welfare the dominant position that it should have occupied in the decision as to his residence. Instead, he allowed the question of the child's so-called right to be raised by his biological parent to influence – indeed to define – the outcome of the residence debate. The judgment of the Court of Appeal The Court of Appeal concluded at para 24 that the justices had made what were described as "two important errors of law". The first of these related to their treatment of In re G. At para 14 of the section in the justices' statement of reasons entitled 'findings of fact' the following appeared: - "In re G (Residence: Same-sex Partner) [2005] EWCA Civ 462, [2005] 2 FLR states a child should not be removed from primary care of biological parents. [Harry] has never resided with his father. Grandmother has been his psychological parent." Wall LJ, who delivered the judgment of the court, observed at para 23 that it was unfortunate that the justices had referred to the decision of the Court of Appeal in In re G since that had been reversed by the House of Lords. In fairness to the justices, the incorrect citation appears to have derived from the skeleton argument of counsel for the father. In any event, it is clear from the reference in para 14 that the justices had considered (to the extent that they had considered it at all) the decision of the House of Lords rather than that of the Court of Appeal. In her skeleton argument, counsel for RJB had quoted the virtual entirety of the short speech of Lord Nicholls of Birkenhead. It would appear that this provided the source material for the justices' statement that a child should not be removed from the primary care of biological parents. Despite the fact that Baroness Hale had delivered the leading opinion in In re G and that all the other members of the appellate committee had expressed their unqualified agreement with it, her speech does not appear to have been extensively considered – indeed a single sentence of her opinion was all that was quoted in the skeleton argument submitted on behalf of the father. It was to the effect that "parenthood is to be regarded as an important and significant factor in considering which proposals advance the welfare of the child" ([2006] 1 WLR 2305, para 31). As we shall see, the significance of Baroness Hale's speech to the outcome of this case went far beyond this somewhat selective quotation. In developing its first criticism of the justices' approach the Court of Appeal suggested that there had not been a sufficient discussion of the respective roles of parents and grandparents in a child's life. As a consequence, the court concluded that the justices had fallen into error in referring to the grandmother as Harry's psychological parent while failing to acknowledge his father's role beyond recording that he was capable of meeting Harry's needs. When considering the criticism that the justices had failed to – in the words of Wall LJ at para 24 – "grapple adequately with the fundamental issue in the case" - one must keep closely in mind that the context in which discussion of the respective roles of the father and the grandmother in Harry's life should take place is how those roles and the manner in which the parent and grandparent fulfil them can conduce to the child's welfare. Whether this particular criticism is justified depends, therefore, on the sufficiency of the justices' consideration of the roles of the father and grandmother in terms of the contribution that they could make to Harry's welfare. The pro forma document that the justices prepared giving the reasons for their decision should not, we believe, be treated as containing an exhaustive record of all the material that was considered by them. From the note of the evidence given in the family proceedings court it is clear that the role that the father could play in Harry's life and the care that he had provided in the past were comprehensively canvassed and debated. Both GB and AW were cross examined extensively about these issues and it is difficult to accept that the justices did not have them in mind in making the decision about residence. It would perhaps have been preferable if the justices had placed on record that they had considered the role of his father in Harry's life but it is not easy to see what they might have said beyond that. They had commented that RJB had helped with Harry's care in the past and had expressed himself willing to do so again; they acknowledged that he was capable of meeting Harry's needs; and they accepted that Harry had enjoyed a good relationship with his father. It is clear that they were alert to the role that he had played in this young boy's life. We cannot therefore agree that they failed to grapple with the respective roles of father and grandmother. The second "important error of law" identified by the Court of Appeal was the justices' statement in relation to compelling reasons. Wall LJ said this about that statement: "25. … in our judgment, it was clearly an error of law for the justices to say, as they did, that it required compelling reasons to remove H from his grandmother's care. Whilst they make it clear that [Harry's] welfare was their paramount consideration, the question which they had to decide was whether or not it was in [Harry's] interests in both the short and the long term to live with his grandmother or his father. The introduction of 'compelling reasons' clearly means, we think, that the justices gave too much weight to the 'status quo' argument, and too little to the role of his father in [Harry's] life and care. Indeed, they appear to have created a presumption that the status quo should prevail unless there are compelling arguments to the contrary." As we have pointed out at [14] above, the justices did not say that they required such reasons, merely that they had not found them. When one examines the statement of reasons as a whole and has in mind that this was a direct quotation from AW's report, it is not difficult to reach the conclusion that the justices did not regard this as an essential pre-condition to Harry's residence being transferred to his father. We find it impossible to agree with the judgment of the Court of Appeal that this statement betokened an over emphasis by the justices on preserving the status quo. In re G The Court of Appeal acknowledged that In re G had given the final quietus to the notion that parental rights have any part to play in the assessment of where the best interests of a child lay. Indeed, (correctly in our view) it identified this as the principal message provided by the case. It is certainly the principal message that was pertinent to the present case. It appears, however, that the urgency of that message has been blunted somewhat by reference to the speech of Lord Nicholls and some misunderstanding of the opinion that he expressed. Having agreed that the appeal should be allowed for the reasons to be given by Baroness Hale, Lord Nicholls said at para 2: "The present unhappy dispute is between the children's mother and her former partner Ms CW. In this case, as in all cases concerning the upbringing of children, the court seeks to identify the course which is in the best interests of the children." He then said: "Their welfare is the court's paramount consideration. In reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child's best interests, both in the short term and also, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor. A child should not be removed from the primary care of his or her biological parents without compelling reason. Where such a reason exists the judge should spell this out explicitly." As we have observed, it appears to have been in reliance on the latter passage that the justices stated that a child should not be removed from the primary care of biological parents. A careful reading of what Lord Nicholls actually said reveals, of course, that he did not propound any general rule to that effect. For a proper understanding of the view that he expressed, it is important at the outset to recognise that Lord Nicholls' comment about the rearing of a child by a biological parent is set firmly in the context of the child's welfare. This he identified as "the court's paramount consideration". It must be the dominant and overriding factor that ultimately determines disputes about residence and contact and there can be no dilution of its importance by reference to extraneous matters. When Lord Nicholls said that courts should keep in mind that the interests of a child will normally be best served by being reared by his or her biological parent, he was doing no more than reflecting common experience that, in general, children tend to thrive when brought up by parents to whom they have been born. He was careful to qualify his statement, however, by the words "in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child's best interests" (emphasis added). In the ordinary way one can expect that children will do best with their biological parents. But many disputes about residence and contact do not follow the ordinary way. Therefore, although one should keep in mind the common experience to which Lord Nicholls was referring, one must not be slow to recognise those cases where that common experience does not provide a reliable guide. Although the factual background to the case of In re G was, as Baroness Hale described it, 'novel' (a lesbian couple decided to have children together, arranged for anonymous donor insemination and brought up the children together until their relationship broke down) the issues arising and the legal principles that applied were, as Baroness Hale pointed out, just the same as would arise in the case of a heterosexual couple. After conducting what the Court of Appeal rightly described as a scholarly analysis of the statute and the authorities which pre-dated the 1989 Act, Baroness Hale turned to consider the recommendations of the Law Commission report on private law cases relating to child care. She said this at para 30: "[30] My Lords, the [Children Act 1989] brought together the Government's proposals in relation to child care law and the Law Commission's recommendations in relation to the private law. In its Working Paper No 96, Family Law: Review of Child Law: Custody (1986), at para 6.22, having discussed whether there should be some form of presumption in favour of natural parents, the Law Commission said: 'We conclude, therefore, that the welfare of each child in the family should continue to be the paramount consideration whenever their custody or upbringing is in question between private individuals. The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child, in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may bring. We have already said that the indications are that the priority given to the welfare of the child needs to be strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to children under the present law.' Nor should we. The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained in J v C [1070] AC 668, 711, this means that it 'rules upon or determines the course to be followed'. There is no question of a parental right. As the Law Commission explained: 'the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child' or, as Lord MacDermott put it, the claims and wishes of parents 'can be capable of ministering to the total welfare of the child in a special way'." This passage captures the central point of the In re G case and of this case. It is a message which should not require reaffirmation but, if and in so far as it does, we would wish to provide it in this judgment. All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child's best interests. This is the paramount consideration. It is only as a contributor to the child's welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim. There are various ways in which it may do so, some of which were explored by Baroness Hale in In re G, but the essential task for the court is always the same. For the reasons that we have given, we consider that the justices' decision cannot be characterised as 'plainly wrong'. True it is that they misapprehended the real import of In re G and it was, as we have said, unfortunate that they repeated the phrase 'compelling reasons' from AW's report but we do not consider that these detract from their careful evaluation of the evidence and their weighing of the various competing factors involved in their determination of the question of Harry's residence. Nor do they detract from their important recognition that his welfare was the paramount consideration in that determination. It follows that Judge Richards erred in his conclusion that it was open to him to reverse the justices' findings. The judge was correct in his view that G v G [1985] 1 WLR 647 forbade interference with the exercise of the justices' discretion unless the decision was plainly wrong. Where he fell into error was in deciding that his analysis of their statement of reasons supported his conclusion that it was so. The Court of Appeal recognised some of the deficiencies in the judge's analysis, in particular his apparent application of the principles relevant only in public law cases to private law proceedings under the 1989 Act; his pronouncement of something which came close to a presumption that a child should live with his biological parent or parents; and of the relevance of the concept of 'good enough' parenting in this case. But the court considered that it could overlook these shortcomings because "the judge's fundamental [approach] was not plainly wrong" (para 62). This in turn depended on their acceptance of the judge's conclusion that the justices' decision was plainly wrong. Since we have concluded that it was not, the basis on which the Court of Appeal felt able to uphold Judge Richards' decision falls away. As we have said earlier, many disputes about residence and contact do not follow the ordinary way. This case is one such. Harry has lived virtually all of his young life with his grandmother. He has naturally formed a strong bond with her. There is reason to apprehend that, if that bond is broken, his current stability will be threatened. Harry's father had undergone significant changes in his own domestic arrangements at the time that the justices made their decision. While he was assessed as capable of meeting Harry's needs, those arrangements remained untested at the time the justices had to determine where Harry should live. There was therefore ample material available to the justices to reach the determination they did. That determination lay comfortably within the range of the decisions that the justices, in the exercise of their discretion, could reasonably make. For these reasons we allowed the appeal. What we heard of the contact and residence arrangements made as a result of the conditions imposed by the Court of Appeal's order granting a stay confirmed the view that considerable disruption to Harry's life would have been involved in a transfer to live with his father. The distance between the homes of his grandmother and his father exceeds thirty miles, we were told. It seems inevitable that, if he were to live with his father, he would no longer be able to attend the nursery where he has already made good progress. Transfer of his residence would involve a great deal more than a change of address. Many of the familiar aspects of his life which anchor his stability and sense of security would be changed. The justices were therefore right to give significant weight to the desirability of preserving the status quo. This is a factor which will not always command the importance that must be attached to it in the present case but we are satisfied that it was of considerable significance in the debate as to where this child's best interests lay. For that reason, it is perhaps regrettable that such a radical change to Harry's residence and contact arrangements came about as a result of the conditions imposed by the Court of Appeal. Conscious of the need to minimise the sense of bewilderment that can accompany abrupt and substantial changes to a child's living arrangements, we made a transitional order that provided for a phased return to those that were in place before. We consider that, as a general rule, conditions such as were imposed by the Court of Appeal in this case should not be made where a party seeks permission to appeal, not least because these might be seen as an unwarranted disincentive to the pursuit of what proved in this case to be a fully merited application.

Ordonnance de la Cour Case C-192/03 P Alcon Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal – Community trade mark – Regulation (EC) No 40/94 – Invalidity of the Community trade mark – Article 51 of Regulation No 40/94 – Absolute ground for refusal to register – Article 7(1)(d) of Regulation No 40/94 – Distinctive character acquired through use – Article 7(3) of Regulation No 40/94 – Term ‘BSS’) Summary of the Order Community trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Registration in breach of the provisions of Article 7(1)(d) of Regulation No 40/94 – Material date for the examination of whether the mark has become customary – Taking account of circumstances subsequent to the date of filing the application for registration – Whether permitted (Council Regulation No 40/94, Arts 7(1)(d) and 51(1)(a)) While the date of filing the application for registration of a Community trade mark is the material date for the examination of the absolute ground for invalidity referred to in Articles 7(1)(d) and 51(1)(a) of Regulation No 40/94, relating to whether the mark has become customary, it is possible without inconsistency in reasoning or error of law for material to be taken into account which, although subsequent to the date of filing the application, enables the drawing of conclusions on the situation as it was on that date. (see paras 40-41) ORDER OF THE COURT (Sixth Chamber) 5 October 2004(1) (Appeal – Community trade mark – Regulation (EC) No 40/94 – Invalidity of Community trade mark – Article 51 of Regulation No 40/94 – Absolute ground for refusal to register – Article 7(1)(d) of Regulation No 40/94 – Distinctive character acquired through use – Article 7(3) of Regulation No 40/94 – Term ‘BSS’) In Case C-192/03 P, Alcon Inc., formerly Alcon Universal Ltd, established in Hünenberg (Switzerland), represented by C. Morcom QC and S. Clark, solicitor, with an address for service in Luxembourg, appellant, APPEAL under Article 56 of the Statute of the Court of Justice brought on 2 May 2003, the other parties to the proceedings being: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by S. Laitinen and A. Sesma Merino, acting as Agents, defendant at first instance, Dr Robert Winzer Pharma GmbH, established in Olching (Germany), represented by S. Schneller, Rechtsanwalt, intervener at first instance, THE COURT (Sixth Chamber), composed of: J.-P. Puissochet (Rapporteur), President of the Chamber, F. Macken and U. Lõhmus, Judges, Advocate General: M. Poiares Maduro, Registrar: R. Grass, makes the following Order By its appeal Alcon Inc. (‘the appellant’) requests the Court to set aside the judgment of the Court of First Instance of the European Communities (Second Chamber) of 5 March 2003 in Case T-237/01 Alcon v OHIM – Dr Robert Winzer Pharma (BSS) [2003] ECR II-411 (‘the judgment under appeal’) dismissing its action against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 13 July 2001 declaring the Community trade mark BSS invalid (Case R 273/2000-1) (‘the contested decision’). Legal background Under Article 4 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1): ‘A Community trade mark may consist of any signs capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings.’ Article 7 of that regulation states: ‘1. The following shall not be registered: … (d) trade marks which consist exclusively of signs or indications which have become customary in the current language or in the bona fide and established practices of the trade; … 2. Paragraph 1 shall apply notwithstanding that the grounds of non-registrability obtain in only part of the Community. 3. Paragraph 1(b), (c) and (d) shall not apply if the trade mark has become distinctive in relation to the goods or services for which registration is requested in consequence of the use which has been made of it.’ Under Article 51 of that regulation: ‘1. A Community trade mark shall be declared invalid on application to the Office or on the basis of a counterclaim in infringement proceedings, (a) where the Community trade mark has been registered in breach of the provisions of Article 5 or of Article 7; … 2. Where the Community trade mark has been registered in breach of the provisions of Article 7(1)(b), (c) or (d), it may nevertheless not be declared invalid if, in consequence of the use which has been made of it, it has after registration acquired a distinctive character in relation to the goods or services for which it is registered. …’ Article 63 of the regulation states, in paragraphs 1, 2 and 3: ‘1. Actions may be brought before the Court of Justice against decisions of the Boards of Appeal on appeals. 2. The action may be brought on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty, of this Regulation or of any rule of law relating to their application or misuse of power. 3. The Court of Justice has jurisdiction to annul or to alter the contested decision.’ Facts of the dispute On 1 April 1996 Alcon Pharmaceuticals Ltd applied to OHIM for registration of the term BSS as a Community trade mark in respect of ‘ophthalmic pharmaceutical preparations; sterile solutions for ophthalmic surgery’, those being goods in Class 5 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended. The mark was registered on 7 August 1998 and published on 19 October 1998. On 29 November 1999 the mark was transferred into the appellant’s name, at its request. On 7 December 1998 Dr Robert Winzer Pharma GmbH (‘the intervener’) filed an application with OHIM for a declaration that the mark was invalid, under Article 51(1) of Regulation No 40/94. It submitted that BSS was an abbreviation for ‘balanced salt solution’ or ‘buffered saline solution’, that the mark was therefore descriptive of the goods concerned and that it had been registered in breach of Article 7 of Regulation No 40/94. By decision of 15 December 1999, the Cancellation Division granted that application, on the grounds that, first, the mark consisted of a sign which had become customary in the current language within the meaning of Article 7(1)(d) of Regulation No 40/94 and, second, the appellant had not shown that the sign had acquired distinctive character as a result of use for the purposes of Articles 7(3) and 51(2) of Regulation No 40/94. On 15 February 2000 the appellant appealed against that decision. By the contested decision, the First Board of Appeal of OHIM dismissed that appeal, finding that the letters BSS were used in both German and English to designate in the current language an ophthalmic pharmaceutical preparation, and that the appellant had not shown that those letters had acquired distinctive character through use. The judgment under appeal By application lodged at the Registry of the Court of First Instance on 18 September 2001, the appellant brought an action for annulment of the contested decision. OHIM and the intervener contended that the application should be dismissed. The Court of First Instance held, first, in paragraphs 35 to 48 of the judgment under appeal, that the Board of Appeal had rightly considered that the evidence produced by the intervener was sufficient to demonstrate that the term BSS had become customary within the meaning of Article 7(1)(d) of Regulation No 40/94. Referring to Case C-517/99 Merz & Krell [2001] ECR I-6959, the Court of First Instance considered that the term BSS had, by the date of filing of the appellant’s application for registration of the mark BSS, become a current generic term among the public targeted by the goods concerned, namely ophthalmologists and ophthalmic surgeons, for a balanced salt solution. That was apparent from a number of scientific dictionaries and articles, and from the fact that various companies marketed ophthalmic products under designations containing the term BSS. The Court of First Instance held, second, in paragraphs 49 to 60 of the judgment under appeal, that the Board of Appeal had also been right in considering that the appellant had failed to show that the BSS mark had acquired distinctive character through use for the purposes of Articles 7(3) and 51(2) of Regulation No 40/94. It considered that the documents produced by the appellant before the Cancellation Division of OHIM and then before the Board of Appeal did not allow the conclusion that the target public perceived BSS not as the generic name for the product in question but as the distinctive sign of a particular undertaking. It observed in particular that the ‘Policing BSS’ schedule and the agreements entered into by the appellant with third parties, produced by the appellant to show that there was a programme for monitoring the use of the BSS mark by third parties, had no known effects or results in terms of raising awareness among the target public. The Court of First Instance therefore dismissed the application. The appeal The appellant claims that the Court should set aside the judgment under appeal, annul the contested decision and make an order as to costs. OHIM and the intervener contend that the Court should dismiss the appeal and order the appellant to pay the costs. Under Article 119 of the Rules of Procedure, where the appeal is clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal by reasoned order. Arguments of the parties First, the appellant submits that the Court of First Instance applied Article 7(1)(d) of Regulation No 40/94 incorrectly by considering that the term BSS had become customary. It submits that the Court of First Instance wrongly took into consideration documents produced as evidence by the intervener which were either dated after the date of filing the application for registration of the BSS mark, in this case 1 April 1996, the only relevant date for assessing the ground of invalidity in question, or published outside the European Union. The intervener produced no evidence from any person trading in the goods in question to show that the term BSS was customary. The mere mention of a sign as the name or description of a product in a dictionary or other publication is not sufficient to show that that sign has become customary in the current language of the target public. The appellant submits, moreover, that the Court of First Instance should have taken account of its arguments concerning the active steps it had taken to monitor references by other parties to BSS and prevent misuse of its mark by third parties. Second, the appellant submits that the Court of First Instance wrongly disregarded the evidence it had produced to show that the BSS mark had acquired distinctive character through use, on the basis of Article 7(3) and 51(2) of Regulation No 40/94. The Court of First Instance relied, in paragraph 56 of the judgment under appeal, on a particular point, the absence of evidence as to the effects of the mark monitoring programme on the target public, while it did not make the same demands as regards the evidence put forward by the intervener. It thus did not treat the evidence of the two parties to the dispute in the same way. OHIM observes that the appeal concerns the first case brought before the Court of First Instance and the Court of Justice relating to an application for invalidity of a Community trade mark. Relying on Case C-104/00 P DKV v OHIM [2002] ECR I-7561, OHIM submits that most if not all the pleas put forward by the appellant in the appeal relate only to questions of pure fact, in particular the examination of the evidence by the Court of First Instance, the appraisal of which is not within the jurisdiction of the Court when hearing an appeal. In the alternative, as regards the interpretation both of Article 7(1)(d) and of Articles 7(3) and 51(2) of Regulation No 40/94, OHIM considers that the Court of First Instance did not err in law. As regards the evidence produced by the intervener, even supposing that the Court may consider its effect, OHIM submits that the Court of First Instance was entitled to consider that that evidence established that the term BSS had already become customary at the date of filing the application for registration and that the mark had thereby lost its distinctive character. The intervener submits that the evidence it produced to the Cancellation Division of OHIM, the Board of Appeal and the Court of First Instance clearly shows the generic nature, in the bona fide and established practices of the trade, of the BSS mark in respect of the goods concerned, and that that evidence was taken into account correctly by OHIM and the Court of First Instance. Findings of the Court In considering that the BSS mark consisted exclusively of signs or indications which had become customary in the current language of the target public to designate the goods for which that mark had been registered, and that it had been lawfully declared invalid on that ground by the contested decision, the Court of First Instance correctly pointed out, in paragraph 39 of the judgment under appeal, that it was not the descriptive nature of the mark that was decisive but current usage in the sectors covering trade in those goods (see, with respect to the essentially identical provisions of Article 3(1)(d) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), Merz & Krell, paragraph 35). The Court of First Instance also applied Article 7(1)(d) of Regulation No 40/94 correctly when it noted, in paragraph 40 of the judgment under appeal, that signs or indications constituting a trade mark which have become customary in the current language or in the bona fide and established practices of the trade to designate the goods or services covered by that mark are not capable of distinguishing the goods or services of one undertaking from those of other undertakings and do not therefore fulfil the essential function of a trade mark – unless the use which has been made of those signs or indications has enabled them to acquire a distinctive character (see, by analogy, Merz & Krell, paragraph 37). Nor did the Court of First Instance err in law by considering, in paragraph 42 of the judgment under appeal, that, for the purposes of assessing whether the mark at issue was customary, the relevant point of view was that of the specialist medical public, namely ophthalmologists and ophthalmic surgeons practising in the European Union. The legal context of the dispute having thus been correctly determined, the Court of First Instance, analysing the evidence produced by the appellant and the intervener respectively, considered that all that evidence showed that the BSS mark had become customary for the target public concerned and that the use made of the mark had not been able to confer distinctive character on it. In support of its claim to have the judgment under appeal set aside, the appellant submits, first, that the Court of First Instance did not take sufficient account of the evidence it had produced before the Cancellation Division and the Board of Appeal of OHIM, and that it attached too much weight, on the other hand, to the evidence produced by the intervener before those bodies. However, findings of the Court of First Instance that the applicant has not produced the necessary evidence to support its allegations or that it has not shown that the evidence is correct are findings of fact which are within the sole jurisdiction of that Court and may not be challenged on appeal (see, to that effect, Case C-283/90 P Vidrányi v Commission [1991] ECR I-4339, paragraphs 16 and 17, and Case C-191/98 P Tzoanos v Commission [1999] ECR I-8223, paragraph 23), unless the Court of First Instance has distorted the clear sense of the evidence put before it (see, to that effect, Case C-237/98 P Dorsch Consult v Council and Commission [2000] ECR I-4549, paragraphs 35 and 36). By its arguments, as OHIM rightly observes, the appellant in fact confines itself to challenging the assessment of the facts made by the Court of First Instance without alleging any distortion of the evidence in the case-file put before that Court. That assessment is not a point of law which is subject, as such, to review by the Court of Justice on appeal (DKV v OHIM, paragraph 22, and the order in Case C-326/01 P Telefon & Buch v OHIM [2004] ECR I-0000, paragraph 35). Nor does the appellant allege that the judgment under appeal is vitiated by an error of law in the application of the rules on the burden of proof (see, to that effect, Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraphs 64 and 65). Second, the appellant submits that the Court of First Instance erred in law by not taking as the relevant date the date of filing of the application for registration of the BSS mark, in this case 1 April 1996. Only that date is material for assessing whether a Community mark has become customary so that it must be declared invalid pursuant to Article 51(1) of Regulation No 40/94. It submits that that error is disclosed by the fact that the Court of First Instance mentioned, in particular in paragraph 45 of the judgment under appeal, documents dated after 1 April 1996. That Court also wrongly took into account, in paragraph 44 of the judgment under appeal, documents published outside the European Union, which could not reflect the perception of the target public mentioned above. The two parts of this second plea should be distinguished. The first part relates to the taking into consideration by the Court of First Instance of documents dated later than the application for registration in order to assess whether a mark has become customary. If by this part of the plea the appellant’s intention is to challenge that Court’s assessment, on the basis of those documents, of whether the mark was customary at the date of the application for registration, it must be noted that that assessment of the evidence does not constitute a point of law which it is for this Court to examine. If, on the other hand, the appellant wishes to show that by taking those documents into consideration the Court of First Instance implicitly took a date subsequent to the application for registration as the material date for analysing whether the term BSS was customary, such a criticism raises a point of law which the Court must consider. In the present case, however, this first part of the plea is unfounded. The Court of First Instance expressly stated, in paragraph 46 of the judgment under appeal, that the Board of Appeal had been right to consider, in paragraph 19 of the contested decision, that the evidence provided by the intervener showed that the term BSS had become customary ‘at the time of the [appellant’s] application’. In its analysis, it did not therefore take a date other than that put forward by the appellant for examining the alleged ground of invalidity. OHIM rightly stated in this respect that the date of filing the application for registration of the Community trade mark is the material date for that examination. Moreover, the Court of First Instance could without inconsistency in its reasoning or error of law take account of material which, although subsequent to the date of filing the application, enabled the drawing of conclusions on the situation as it was on that date (see, by analogy, the order in Case C-259/02 La Mer Technology [2004] ECR I-0000, paragraph 31). In the second part of this plea, the appellant submits that the Court of First Instance took into consideration, in paragraph 44 of the judgment under appeal, certain documents published in the United States. However, that circumstance does not establish that the Court of First Instance based its analysis on evidence that did not affect the target public. By stating in paragraph 42 of the judgment under appeal that English was the technical language of specialists in the relevant field, and by referring in paragraph 43 of the judgment under appeal to the perception of the term BSS as a generic term by the ‘scientific community’, the Court of First Instance necessarily considered that those documents, although published outside the European Union, supported the conclusion that the target public regarded that term as having become customary. In so doing it made an assessment of pure fact, which the appellant cannot challenge on appeal. The second plea in law must therefore be rejected. In the light of all the foregoing, the appellant’s appeal is clearly unfounded and must therefore be dismissed. Costs Under the second paragraph of Article 69 of the Rules of Procedure, which apply to the procedure on appeal by virtue of Article 118 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since OHIM and the intervener have applied for costs and the appellant has been unsuccessful, it must be ordered to pay the costs. On those grounds, the Court (Sixth Chamber) hereby orders: 1. The appeal is dismissed. 2. Alcon Inc. shall pay the costs. Signatures. 1 – Language of the case: English.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 851 of 1966. Appeal by special leave from the judgment and order dated December 20, 1963 of the Allahabad High Court, Lucknow Bench in First Civil Appeal No. 28 of 1954. Jagdish Swarup, Solicitor-General, Yogeshwar Prasad, M. Kohli and G.R. Chopra, for the appellant. M. Singhvi and S.P. Nayar, for the respondent. The Judgment of the Court was delivered by Shah, Ag. C.J. Maula Bux hereinafter called the plaintiff entered into a companytract No. C/74 with the Government of India on February 20, 1947, to supply potatoes at the Military Headquarters, U.P. Area, and deposited an amount of Rs. 10,000 as security for due performance of the companytract. He entered into another companytract with Government of India on March 4, 1947 No. C/120 to supply at the same place poultry, eggs and fish for one year and deposited an amount of Rs. 8,500/- for due performance of the companytract. Clause 8 of the companytract ran as follows The officer sanctioning the companytract may rescind his companytract by numberice to me us in writing -- i ii iii If I we decline, neglect or delay to companyply with any demand or requisition or in any other way fail to. perform or observe any companydition of the companytract. v vi In ease of such rescission, my our security deposit or such portion thereof as the officer sanctioning the companytract shall companysider fit or adequate shall stand forfeited and be absolutely at the disposal of Government, without prejudice to any other remedy or action that the Government may have to take. In the case of such rescission, the Government shall be entitled to recover from me us on demand any extra expense the Government may be put to in obtaining supplies services hereby agreed to be supplied, from elsewhere in any manner mentioned in clause 7 ii hereof, for the remainder of the period for which this companytract was entered into, without prejudice to any other remedy the Government may have. The plaintiff having made persistent default in making regular and full supplies of the companymodities agreed to be supplied, the Government of India rescinded the companytracts the first on November 23, 1947, and the second on December 2,1947, and forfeited the amounts deposited by the plaintiff. The plaintiff companymenced an action against the Union of India in the Court of the Civil Judge, Lucknow, for a decree for Rs. 20,000/- being the amounts deposited with the Government of India for due performance of the companytracts and interest thereon at the rate of 6 per cent. per annum. The Trial Court decreed the suit. The Court held that the Government of India was justified in rescinding the companytracts, but they companyld number for left the amounts of deposit, for they had number suffered any loss in companysequence of the default companymitted by the plaintiff. The High Court of Allahabad in appeal modified the decree, and awarded Rs. 416.25 only with interest at the rate of 3 per cent from the date of the suit. The plaintiff has appealed to this Court with special leave. The trial Court found in decreeing the plaintiffs suit that there was numberevidence at all to prove that loss, if any, was suffered by the Government of India in companysequence of the plaintiffs default, and on that account amounts deposited as security were number liable to be forfeited. In the view of the High Court, to for feature of a sum deposited by way of security for due performance of a companytract, where the amount forfeited is number unreasonable, s. 74 of the Contract Act has numberapplication.The Court observed that the decision of this Court in Fateh Chand v. Balkishan Dass 1 did number purport to overrule the previous trend of authorities to the effect that earnest money deposited by way of security for the due performance of a companytract does number companystitute penalty companytemplated under s. 74 of the Indian Contract Act, that even if it be held that the security deposited in the case was a stipulation by way of penalty, the Government was entitled to receive from the plaintiff reasonable companypensation number exceeding that amount, whether or number actual damage or loss was proved to have been caused, and that even in the absence of evidence to prove the actual damage or loss caused to the Govern 1964 1 S.C.R. 515. ment there were circumstances in the case with indicated that the amount of Rs. 10,000 in the case of potato companytract and Rs. 8,500/- in the case of poultry companytract may be taken as number exceeding the reasonable companypensation for the breach of companytract by the plaintiff. The High Court further observed that the companytract was for supply of large quantities of potatoes, poultry and fish, which would number ordinarily be available in the market, and had to be procured in case of breach of companytract everyday with great inconvenience, and in the circumstances the Court companyld take judicial numberice of the fact that 1947-48 was the period when the prices were rising and it would number have been easy to procure the supplies at the rates companytracted for. The High Court companycluded taking into companysideration the amount of inconvenience and the difficulties and the rising rate of prices, it would number be unfair if in case of such breach for the supply of such huge amounts of potatoes and poultry, we companysider an amount of Rs. 18,500/.-by way of damages as being number unreasonable. Under the terms of the agreements the amounts deposited by the plaintiff as security for due performance of the companytracts were to stand forfeited in case the plaintiff neglected to perform his part of the companytract. The High Court observed that the deposits so made may be regarded as earnest money. But that view cannot be accepted. According to Earl Jowitt in The Dictionary of English Law at p. 689 Giving an earnest or earnest-money is a mode of signifying assent to a companytract of sale or the like, by giving to the vendor a numberinal sum e.g. a shilling as a token that the parties are in earnest or have made up their minds. As observed by the Judicial Committee in Kunwar Chiranjit Singh v. Har Swarup 1 Earnest money is part of the purchase price when the transaction goes forward it is forfeited when the transaction falls through, by reason of the fault or failure of the vandee. In the present case the deposit was made number of a sum of money by the purchaser to be applied towards part payment of the price when the companytract was companypleted and till then as evidencing an intention on the part of the purchaser to buy property or goods. Here the plaintiff had deposited the amounts claimed as security for guaranteeing due performance of the companytracts.Such deposits cannot be regarded as earnest money. Section 74 of the Contract Act provides When a companytract has been broken, if a sum is named in the companytract as the amount to be paid in case A.I.R. 1926 P.C. 1 of such breach, or if the companytract companytains any other stipulation by way of penalty, the party companyplaining of the breach is entitled, whether or number actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the companytract reasonable companypensation number exceeding the amount so named or, as the case may be, the penalty stipulated for. There is authority, numberdoubt companyoured by the view which was taken in English cases, that s. 74 of the Contract Act has numberapplication to cases of deposit for due performance of a companytract which is stipulated to be forfeited for breach Natesa Aiyar v. Appavu Padayachi 1 Singer Manufacturing Company v. Raja Prosad 2 Manian Patter v. The Madras Railway Company a . But this view is numberlonger good law in view of the judgment of this Court in Fateh Chands case 4 . This Court observed at p. 526 Section 74 of the Indian Contract Act deals with the measure of damages in two classes of cases i where the companytract names a sum to be paid in case of breach, and where the companytract companytains any other stipulation by way of penalty. The measure of damages in the case of breach of a stipulation by Way of penalty is by s. 74 reasonable companypensation number exceeding the penalty stipulated for. The Court also observed It was urged that the section deals in terms with the right to receive from the party who has broken the companytract reasonable companypensation and number the right to forfeit what has already been received by the party aggrieved. There is however numberwarrant for the assumption made by some of the High Courts in India, that s. 74 applies only to cases where the aggrieved party is seeking to receive some amount on breach of companytract and number to cases whereupon breach of companytract an amount received under the companytract is sought to be forfeited. In our judgment the expression the companytract companytains any other stipulation by way of penalty companyprehensively applies to every companyenant involving a penalty whether it is for payment on breach of companytract of money or delivery of property in future, or for forfeiture of right to money or other property already delivered. Duty number to enforce the penalty clause but 1 1913 LL.R. 38 Mad. 178. 2 1909 I.L.R. 36 Cal. 960. 3 1906 I.L.R. 19 Mad. 188. 4 1964 1 S.C.R. 515. only to award reasonable companypensation is statutorily imposed upon companyrts by s. 74. In all cases,. there fore, where there is a stipulation in the nature of penalty for forfeiture of an amount deposited pursuant to the terms of companytract which expressly provides for forfeiture, the companyrt has jurisdiction to award such sum only as it companysiders reasonable but number exceeding the amount specified in the companytract as liable to. forfeiture., and that, There is number ground for holding that the expression companytract companytains any other stipulation by way of penalty is limited to cases of stipulation in the nature of an agreement to. pay money or deliver property on breach and does number companyprehend companyenants under which amounts paid or property delivered under the companytract, which by the terms of the companytract expressly or by clear implication are liable to be forfeited. Forfeiture of earnest money under a companytract for sale of property-movable or immovable--if the amount is reasonable, does number fall within s. 74. That has been decided in several cases Kunwar Chiranjit Singh v. Hat Swarup t Roshan Lal v. The Delhi Cloth and General Mills Company Ltd., Delhi 2 Muhammad Habibullah v. Muhammad Shafi 3 Bishan Chand v. Radha Kishan Das 4 These cases are easily explained, for forfeiture of a reasonable amount paid as earnest money does number amount to. imposing a penalty. But if forfeiture is of the nature of penalty, s. 74 applies. Where under the terms of the companytract the party in breach has undertaken to pay a sum of money or to forfeit a sum of money which he has already paid to the party companyplaining of a breach of companytract, the undertaking is of the nature of a penalty. Counsel for the Union, however, urged that in the present case Rs. 10,000/- in respect of the potato companytract and Rs. 8,500 in respect of the poultry companytract were genuine preestimates of damages which the Union was likely to suffer as a result of breach of companytract, and the plaintiff was number entitled to any relief against forfeiture. Reliance in support of this companytention was placed upon the expression used in s. 74 of the Contract Act , the party companyplaining of the breach is entitled, whether or number actual damage or loss is proved to have been caused there by, to receive from the party who has broken the companytract reasonable companypensation. It is true that in every case of breach of companytract the person aggrieved by the breach is number required to prove actual loss or damage suffered by him before he can claim a decree, and the Court is companypetent to award reasonable companypensation in A.I.R. 1926 P.C. 1. 2 I.L.R. 33 All. 166. I.L.R. 41 All. 324. 4 I.D. 19 All. 490. case of breach even if numberactual damage is proved to have been suffered in companysequence of the breach of companytract. But the expression whether or number actual damage or loss is proved to have been caused thereby is intended to companyer different classes of companytracts which companye before the Courts. In case of breach of some companytracts it may be impossible for the Court to assess companypensation arising from breach, while in other cases companypensation can be calculated in accordance with established rules. Where the Court is unable to assess the companypensation, the sum named by the parties if it be regarded as a genuine preestimate may be taken into companysideration as the measure of reasonable companypensation, but number if the sum named is in the nature of a penalty. Where loss in terms of money can be determined, the party claiming companypensation must prove the loss suffered by him. In the present case, it was possible for the Government of India to lead evidence to prove the rates at which potatoes, poultry, eggs and fish were purchased by them when the plaintiff failed to deliver regularly and fully the quantities stipulated under the terms of the companytracts and after the companytracts were terminated. They companyld have proved the rates at which they had to be purchased and also the other incidental charges incurred by them in procuring the goods companytracted for. But numbersuch attempt was made. Counsel for the Union, however, companytended that in the Trial Court the true position in law was number appreciated and the parties proceeded to trial on the question whether the Government was entitled in the circumstances of the case to forfeit under cl. 8 the terms of the companytracts the deposits made for securing due performance of the companytracts. Since there was numberpleading and numberissue on the question of reasonable companypensation, an opportunity should be given to the parties to lead evidence on this point. But with the suit out of which this appeal arises was tried another suit filed by the plaintiff Maula Bux against the Union for a decree for Rs. 53,000 odd being the price of goods supplied under the terms of another companytract with the Government of India. In that suit the Union claimed that it had set off the amount due to the plaintiff, amounts which the plaintiff was liable to pay as companypensation to the Union for loss suffered because of the plaintiffs failure to carry out the terms of the companytracts C/74 and C/120. The Trial Court held in that case that the Union failed to prove that any loss was suffered by it in companysequence of the default by Maula Bux to supply potatoes, poultry, eggs and fish as stipulated by him. Against the judgment of that Court Appeal No. 2001 of 1966 is filed in this Court and is decided today. The High Court of Allahabad having companyfirmed the decree passed by the Trial Court, numberuseful purpose will be served by directing a fresh enquiry into the question whether the Union of India is entitled to recover from the plaintiff any reasonable companypensation for breach of companytracts and whether that companypensation is equal to or exceeds the amounts deposited. Evidence on that question has already been led and findings have been recorded. In dealing with the Appeal No. 2001 of 1966 we have held that the Union has failed to establish by evidence that any damage or loss was suffered by them which arose out of the default companymitted by the plaintiff. We decline therefore to afford another opportunity for leading the evidence as to the loss suffered by the Union on account of the failure on the part of the plaintiff to carry out the companytracts. On the view taken by us it must be held that the High Court was in error in disallowing the plaintiffs case. The High Court has held that the plaintiff is number entitled to any interest prior to the date of the suit. No argument has been advanced before us challenging that view. Since interest was number recoverable under any companytract or usage or under the provisions of the Interest Act, 1838 the High Court allowed interest at the rate of 3 per annum on Rs. 416.25 from the date of the suit, the rate of interest allowed on the claim decreed also should number exceed 3 per cent per annum. We set aside the decree passed by the High Court and substitute the following decree The Union of India do pay to the plaintiff Rs. 18,500/- with interest at the rate of 3 per annum from the date of the suit till payment. The plaintiff was guilty of breach of the companytracts. Considerable inconvenience was caused to the Military authorities because of the failure on the part of the plaintiff to supply the food-stuff companytracted to be supplied. Even though there is numberevidence of the rates at which the goods were purchased, we are of the view, having regard to the circumstances of the case, that the fairest order is that each party do bear its own companyts throughout.

Judgment of the Court of 14 December 1962. - Meroni & Co., Erba - Meroni & Co., Milan v High Authority of the European Coal and Steel Community. - Joined cases 46/59 and 47/59. European Court reports French edition Page 00783 Dutch edition Page 00821 German edition Page 00837 Italian edition Page 00765 English special edition Page 00411 Danish special edition Page 00337 Greek special edition Page 00797 Portuguese special edition Page 00143 Summary Parties Subject of the case Grounds Decision on costs Operative part Keywords ++++ 1 . PROCEDURE - APPLICATION - CONTENT - OBLIGATIONS OF THE APPLICANT ( PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC, ARTICLE 22; RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, ARTICLE 38 ( 1 )). 2 . PROCEDURE - APPLICATION - CONCLUSION - AMENDMENT - REQUIREMENTS OF FORM 3 . WRONGFUL ACT OR OMISSION - CERTIFICATES DRAWN UP BY A NATIONAL ADMINISTRATION RECOGNIZED AS SUPPORTING DOCUMENTS - WRONGFUL ACT OR OMISSION ON THE PART OF A NATIONAL OFFICIAL IN THE DRAWING UP OF SUCH CERTIFICATES - ABSENCE OF SUPERVISION BY THE COMMUNITY Summary 1 . THE APPLICANT MUST SET OUT THE PRECISE FACTS RELIED ON IN SUPPORT OF HIS CLAIM AND MUST PRESENT HIS CONCLUSIONS IN AN UNEQUIVOCAL MANNER . 2 . CF . SUMMARY OF THE JUDGMENT IN CASE 33/59, N . 1 . AN AMENDMENT OF THE CONCLUSIONS, EVEN IF ADMISSIBLE, IS SUBJECT TO THE STRICTEST REQUIREMENTS AS REGARDS ITS PRECISION AND CONTENT AND MUST BE DONE IN A FORMAL MANNER . */ EN.659J0033 /*. 3 . SEE SUMMARY OF THE JUDGMENT IN CASE 23/59 REC . 1959, P . 245 . ( A ) IF, AT THE TIME WHEN CERTIFICATES OF ORIGIN, RECOGNIZED BY THE HIGH AUTHORITY AS SUPPORTING DOCUMENTS, ARE DRAWN UP, A WRONGFUL ACT IS COMMITTED BY A NATIONAL OFFICIAL WHO ACTS NEITHER IN ACCORDANCE WITH ORDERS GIVEN BY THE HIGH AUTHORITY NOR ON BEHALF OF OR IN THE NAME OF THAT INSTITUTION BUT IN THE PERFORMANCE OF PURELY NATIONAL DUTIES, THE WRONGFUL ACT CANNOT BE IMPUTED TO THE HIGH AUTHORITY AND DOES NOT CONSTITUTE A PERSONAL WRONG FOR WHICH THE LATTER IS LIABLE . ( B ) IF, INSTEAD OF MAKING ITSELF RESPONSIBLE FOR DRAWING UP THE CERTIFICATES, THE HIGH AUTHORITY LEAVES THIS TASK TO THE NATIONAL AUTHORITY, THERE IS NO DEFECTIVE ORGANIZATION AND, CONSEQUENTLY, NO WRONGFUL ACT OR OMISSION IN THE PERFORMANCE OF ITS FUNCTIONS WITHIN THE MEANING OF ARTICLE 40 OF THE ECSC TREATY WHEN THE TASK IS ENTRUSTED TO A HIGHER AUTHORITY, SUCH AS A MINISTRY, WHICH APPEARS TO BE THE MOST APPROPRIATE AND THE MOST LIKELY TO AFFORD THE BEST GUARANTEE AGAINST ANY ABUSE AND WHEN THE NATIONAL REGULATIONS PROVIDE FOR AN EXTREMELY DETAILED PROCEDURE BEFORE THE SAID CERTIFICATES ARE DRAWN UP . ( C ) NOR, IN THESE CIRCUMSTANCES, DOES THE FACT THAT THE HIGH AUTHORITY REFRAINS FROM CHECKING THE AUTHENTICITY OF THE CERTIFICATES CONSTITUTE A WRONGFUL ACT OR OMISSION SO LONG AS THERE WAS NO INDICATION TO SUGGEST THE EXISTENCE OF AN ABUSE . ( ECSC TREATY, ARTICLE 40 .) */ EN.659J0023 /*. Parties IN JOINED CASES 46 AND 47/59 1 . MERONI & CO ., A LIMITED PARTNERSHIP GOVERNED BY ITALIAN LAW, HAVING ITS OFFICES AT ERBA ( COMO ), REPRESENTED BY ITS DULY AUTHORIZED ATTORNEY, AGOSTINO ARTIOLI, 2 . MERONI & CO ., A LIMITED COMPANY GOVERNED BY ITALIAN LAW, HAVING ITS REGISTERED OFFICE AT MILAN AND ITS BUSINESS PREMISES AT SETTIMO TORINESE ( TURIN ), REPRESENTED BY ITS SOLE DIRECTOR DR ALDO MERONI, BOTH ASSISTED BY ARTURO COTTRAU OF THE TURIN BAR, ADVOCATE AT THE CORTE DI CASSAZIONE IN ROME, AND BOTH WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE, 6 RUE ALPHONSE-MUNCHEN, APPLICANTS, V HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, PROFESSOR GIULIO PASETTI, ACTING AS AGENT, ASSISTED BY PROFESSOR WALTER BIGIAVI, OF THE UNIVERSITY OF BOLOGNA, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT, Subject of the case APPLICATION FOR PECUNIARY REPARATION FOR AN INJURY ALLEGEDLY CAUSED BY A WRONGFUL ACT OR OMISSION ON THE PART OF THE COMMUNITY; Grounds P . 418 IN THE INTERESTS OF THE GOOD ADMINISTRATION OF JUSTICE, THE PRESENT CASES, ALREADY JOINED FOR THE ORAL PROCEDURE BY THE ORDER OF 26 FEBRUARY 1960, SHOULD BE DECIDED AS CONNECTED CASES BY THE SAME JUDGMENT . I - ON THE SCOPE OF THE CONCLUSIONS OF THE APPLICANTS THE SCOPE OF THE CONCLUSIONS MADE TO THE COURT IN THESE CASES MUST FIRST BE SETTLED : IN ITS APPLICATION THE APPLICANT MERONI, ERBY, CLAIMS IN PARTICULAR THAT THE COURT SHOULD : 'DECLARE THAT THE DEFENDANT IS LIABLE FOR HAVING FAILED TO AVOID THE SITUATION WHEREBY, THROUGH THE MEDIUM OF THE OCCF DURING THE PERIOD FROM 1954 TO 1957, CONSIDERABLE QUANTITIES OF FERROUS SCRAP WERE SOLD, SUPPORTED BY FRAUDULENT CERTIFICATES ISSUED BY THE HEAD OF THE IRON AND STEEL DEPARTMENT OF THE DUTCH MINISTRY FOR ECONOMIC AFFAIRS, TO THE EFFECT THAT THOSE QUANTITIES ORIGINATED FROM SHIP-BREAKERS' YARDS ( IN WHICH AFFAIR HANSA - ROHSTOFF OF DUSSELDORF APPEARS TO HAVE BEEN INVOLVED ) AND ON ANY OTHER GROUND WHICH MAY EMERGE IN THE COURSE OF PROCEEDINGS .' THE APPLICANT MERONI, MILAN, CLAIMED IN ITS APPLICATION THAT THE COURT SHOULD : 'DECLARE THAT THE DEFENDANT IS LIABLE FOR HAVING FAILED TO AVOID THE SITUATION WHEREBY, THROUGH THE MEDIUM OF THE DUTCH REGIONAL OFFICE OF THE CAISSE DE PEREQUATION DURING THE PERIOD FROM 1954 TO 1957, CONSIDERABLE QUANTITIES OF FERROUS SCRAP WERE SOLD, SUPPORTED BY FRAUDULENT CERTIFICATES ISSUED BY THE HEAD OF THE IRON AND STEEL DEPARTMENT OF THE DUTCH MINISTRY FOR ECONOMIC AFFAIRS, TO THE EFFECT THAT THOSE QUANTITIES ORIGINATED FROM SHIP-BREAKERS' YARDS, AND FOR ALL OTHER ACTS OF FRAUD SUBSEQUENTLY DISCOVERED ( HANSA - ROHSTOFF OF DUSSELDORF ETC ).' IN THESE CIRCUMSTANCES, THE QUESTION ARISES WHETHER THESE CONCLUSIONS HAVE VALIDLY BROUGHT BEFORE THE COURT ALL THE ACTS OF FRAUD AND IRREGULARITIES COMMITTED IN RELATION TO THE EQUALIZATION OF FERROUS SCRAP FROM 1954 TO 1957, OR ONLY THE ACTS OF FRAUD RELATING TO THE FALSE CERTIFICATES ISSUED BY THE ABOVE - MENTIONED DUTCH OFFICIAL, MR VAN DER GRIFT ( WHICH ACTS OF FRAUD ARE HEREINAFTER REFERRED TO AS 'THE VAN DER GRIFT AFFAIR '). P . 419 UNDER THE TERMS OF ARTICLE 22 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC AND OF ARTICLE 38 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, THE APPLICATION SHALL STATE THE SUBJECT MATTER OF THE DISPUTE AND SHALL CONTAIN THE SUBMISSIONS (' CONCLUSIONS ') OF THE APPLICANT . THE APPLICANT MUST THUS SET OUT THE PRECISE FACTS RELIED ON IN SUPPORT OF HIS CLAIM AND MUST PRESENT HIS CONCLUSIONS IN AN UNEQUIVOCAL MANNER . IN THE ABSENCE OF SUCH EXACTNESS, THE COURT RISKS EITHER GIVING JUDGMENT ULTRA PETITA OR FAILING TO GIVE JUDGMENT ON ONE OF THE HEADS OF THE CONCLUSIONS . FURTHERMORE, IN THE ABSENCE OF SUCH EXACTNESS, THE RIGHT OF THE DEFENDANT TO BE OBLIGED TO REPLY ONLY TO FACTS EXPLICITLY DEFINED AND TO REFUTE ONLY CLEAR AND PRECISE ALLEGATIONS WOULD BE DISREGARDED . IN THE PRESENT CASE THE APPLICANTS HAVE NOT FULFILLED THESE DUTIES, ALTHOUGH THE COURT INVITED THEM TO DO SO IN THE COURSE OF THE ORAL PROCEDURE AND IN ITS ORDER ON THE REOPENING OF THE ORAL PROCEDURE . WITH REGARD TO THE FACTS ON WHICH THEY WISH TO BASE THEIR APPLICATION THE APPLICANTS HAVE LIMITED THEMSELVES TO ADDING TO THE FILE VARIOUS PARLIAMENTARY DOCUMENTS AND TO REFERRING IN THE COURSE OF THE ORAL PROCEDURE TO ALL THE FACTS AND ARGUMENTS CONTAINED THEREIN . THEY HAVE, ON THE OTHER HAND, REFRAINED FROM DEFINING WHICH IRREGULARITIES DESCRIBED IN THESE DOCUMENTS CONSTITUTE A WRONGFUL ACT OR OMISSION ON THE PART OF THE HEAD OF THE APPROPRIATE DEPARTMENTS AND WHICH CAUSED THEM INJURY . IF THE COURT ACCEPTED ARGUMENTS BY THE APPLICANTS MADE WITH SUCH A LACK OF PRECISION, IT WOULD DEPRIVE THE DEFENDANT TO A CONSIDERABLE EXTENT OF ITS OPPORTUNITIES, PROVIDED FOR IN THE RULES OF PROCEDURE, TO SUBMIT ITS DEFENCE WITH FULL KNOWLEDGE OF THE FACTS . WITH REGARD TO THE CONCLUSIONS, IT DOES NOT EMERGE CLEARLY ENOUGH FROM THEM THAT THEY ENCOMPASS NOT ONLY THE VAN DER GRIFT AFFAIR BUT ALSO ALL THE ACTS OF FRAUD AND IRREGULARITY WHICH HAVE BEEN COMMITTED . THE ARGUMENTS SET FORTH IN THE APPLICATIONS ARE RESTRICTED IN FACT TO THE VAN DER GRIFT AFFAIR ALONE . THE APPLICANT MERONI, MILAN, QUOTES IN ITS CONCLUSIONS THE TONNAGE OF FERROUS SCRAP SOLD THROUGH 'THE MEDIUM OF THE DUTCH REGIONAL OFFICE OF THE CAISSE DE PEREQUATION '. P . 420 IN THE CONCLUSIONS OF BOTH APPLICANTS REFERENCE IS MADE IN PARENTHESES TO HANSA-ROHSTOFF, AN UNDERTAKING OFTEN FOUND MENTIONED IN CONNEXION WITH THE VAN DER GRIFT AFFAIR . IT FOLLOWS FROM THE FOREGOING THAT THE CONCLUSIONS CONTAINED IN THE APPLICATIONS MUST BE INTERPRETED AS REFERRING ONLY TO THE VAN DER GRIFT AFFAIR . SUBSEQUENT PROCEDURE, FAR FROM WEAKENING THAT INTERPRETATION, IS SUCH AS TO CONFIRM IT . IN FACT, AT THE HEARING, ALTHOUGH COUNSEL FOR THE APPLICANTS ASSERTED THAT THE CONCLUSIONS OF THE APPLICANTS ALWAYS RELATED TO ALL ACTS OF FRAUD, HE DID NOT HOWEVER FORMALLY AMEND OR CLARIFY THOSE CONCLUSIONS . SUCH AN ASSERTION CANNOT TAKE THE PLACE OF AN AMENDMENT OF THE CONCLUSIONS, WHICH, EVEN IF ADMISSIBLE, IS SUBJECT TO THE STRICTEST REQUIREMENTS AS REGARDS ITS PRECISION AND CONTENT . THE APPLICANTS HAVE OBSERVED THAT THEY HAD NOT BEEN IN A POSITION TO PUT FORWARD THE ARGUMENTS IN QUESTION AT AN EARLIER DATE . THAT OBSERVATION, HOWEVER, IS NOT RELEVANT SINCE THEY ARE ALWAYS FREE TO MAKE A FRESH APPLICATION . FINALLY, THE APPLICANTS EMPHASIZE THAT IF THEY HAD DELAYED IN ENFORCING THEIR RIGHTS IN ACCORDANCE WITH ARTICLE 40 OF THE TREATY, THEY WOULD HAVE RUN THE RISK OF FINDING THEMSELVES BARRED BY THE PERIOD OF LIMITATION PROVIDED FOR IN ARTICLE 40 OF THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC . THAT FEAR, HOWEVER, IS WITHOUT FOUNDATION . THERE IS IN FACT NO DANGER THAT ACTIONS BASED ON IRREGULARITIES OTHER THAN THOSE RELATING TO THE VAN DER GRIFT AFFAIR WILL BE TIME - BARRED, AS IT HAS NOT YET BEEN POSSIBLE FINALLY TO FIX THE AMOUNTS TO BE PAID IN RESPECT OF THE EQUALIZATION LEVY ON FERROUS SCRAP . THESE ARGUMENTS DO NOT HOWEVER MAKE IT POSSIBLE TO GIVE TO THE REFERENCES TO THE ACTS OF FRAUD, OTHER THAN THOSE COMMITTED IN THE VAN DER GRIFT AFFAIR - REFERENCES CONTAINED IN THE CONCLUSIONS AND IN THE COURSE OF THE ORAL PROCEDURE - THE WIDE INTERPRETATION THE BENEFIT OF WHICH THE APPLICANTS CLAIM . THOSE REFERENCES MUST RATHER BE INTERPRETED SOLELY AS A RESERVATION IN ORDER THAT THOSE OTHER INJURIOUS FACTS MIGHT BE TAKEN INTO CONSIDERATION, TO THE EXTENT TO WHICH SUCH FACTS AND CIRCUMSTANCES - WHICH MOREOVER ARE UNSUBSTANTIATED - RELATE ONLY TO THE VAN DER GRIFT AFFAIR . P . 421 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICANTS' CLAIM RELATES ONLY TO THE VAN DER GRIFT AFFAIR, INCLUDING THE FACTS RELATING TO THAT AFFAIR WHICH EMERGED AFTER THE LODGING OF THE APPLICATIONS, BUT BEFORE THE OPENING OF THE ORAL PROCEDURE . II - ON THE SUBSTANCE OF THE CASE 1 . LIABILITY OF THE HIGH AUTHORITY ON THE BASIS OF A GUARANTEE GIVEN BY IT THE APPLICANTS INFER THE LIABILITY OF THE DEFENDANT FROM THE FACT THAT THE LATTER, IN ITS DECISIONS ESTABLISHING THE EQUALIZATION SCHEME, FORMALLY UNDERTOOK TO ENSURE A FAULTLESS SERVICE; THIS COMMITMENT EXTENDED ALSO TO IRON AND STEEL UNDERTAKINGS OF THE COMMUNITY . THIS EMERGES FROM THE EIGHT RECITAL OF THE PREAMBLE TO DECISION 14/55 IN WHICH THE HIGH AUTHORITY DECLARED THAT IT 'IS RESPONSIBLE FOR THE REGULAR FUNCTIONING OF THE FINANCIAL ARRANGEMENTS AND HENCE MUST ALWAYS BE IN A POSITION TO INTERVENE EFFECTIVELY '. THE ESTABLISHMENT OF THE FINANCIAL ARRANGEMENTS AND THE PRINCIPLE ENUNCIATED IN THE RECITAL TO THE ABOVE-MENTIONED GENERAL DECISION, OF THE LIABILITY ASSUMED BY THE HIGH AUTHORITY FOR THE REGULAR FUNCTIONING OF THIS SCHEME, BELONG TO THE POLITICAL AND ADMINISTRATIVE SPHERE, AND CANNOT THUS CONSTITUTE AN OBLIGATION TO THE UNDERTAKINGS UNDER ITS AUTHORITY OR A GUARANTEE GIVING RISE TO OBJECTIVE, CONTRACTUAL OR LEGAL LIABILITY ON THE PART OF THE HIGH AUTHORITY, EVEN WHEN NO WRONGFUL ACT OR OMISSION CAN BE IMPUTED TO IT . THE SUBMISSION MUST THEREFORE BE DISMISSED . 2 . LIABILITY FOR A WRONGFUL ACT OR OMISSION THE APPLICATIONS ARE MOREOVER PRINCIPALLY BASED ON ARTICLE 40 OF THE ECSC TREATY WHICH ALLOWS THE INJURED PARTY TO BRING AN ACTION TO OBTAIN PECUNIARY REPARATION FROM THE COMMUNITY TO MAKE GOOD ANY INJURY CAUSED IN CARRYING OUT THE SAID TREATY BY A WRONGFUL ACT OR OMISSION ON THE PART OF THE COMMUNITY IN THE PERFORMANCES OF ITS FUNCTIONS . ( A ) THE OFFICIAL OF THE DUTCH MINISTRY FOR ECONOMIC AFFAIRS, WHO FRAUDULENTLY ISSUED THE CERTIFICATES IN QUESTION, WAS NOT SUBJECT TO THE CONTROL OF THE HIGH AUTHORITY AND DID NOT RECEIVE ORDERS FROM IT, BUT ACTED IN HIS CAPACITY AS A NATIONAL OFFICIAL . IF, IN ACCORDANCE WITH THE SYSTEM APPLIED BY THE HIGH AUTHORITY, CERTIFICATES ISSUED BY THE DUTCH MINISTRY WERE RECOGNIZED AS SUPPORTING DOCUMENTS WITHOUT FURTHER CHECKING, IT CANNOT BE INFERRED FROM THIS THAT THE OFFICIAL WHOM THE MINISTRY HAD CHARGED WITH ISSUING THE SAID CERTIFICATES ACTED ON BEHALF OF OR IN THE NAME OF THE COMMUNITY . THE WRONGFUL ACT COMMITTED BY THIS OFFICIAL CANNOT THEREFORE BE IMPUTED TO THE DEFENDANT . NO OTHER PERSONAL WRONG COMMITTED BY A SERVANT OF THE DEFENDANT IN THE PERFORMANCE OF HIS DUTIES HAS BEEN ESTABLISHED . P . 422 ( B ) IT IS ALSO NECESSARY HOWEVER TO CONSIDER WHETHER THERE WAS A WRONGFUL ACT OR OMISSION ON THE PART OF THE DEFENDANT WITHIN THE MEANING OF ARTICLE 40 OF THE ECSC TREATY, BECAUSE OF ITS FAILURE TO PROVIDE A BETTER ORGANIZED SYSTEM FOR ISSUING THE CERTIFICATES OF ORIGIN FOR FERROUS SCRAP QUALIFYING FOR EQUALIZATION PAYMENTS, AND IN PARTICULAR BECAUSE OF ITS FAILURE TO PROVIDE FOR THE INVESTIGATION OF THE AUTHENTICITY OF THE SAID CERTIFICATES . AT FIRST SIGHT, THE FACT THAT IT WAS POSSIBLE FOR THE ABUSES COMPLAINED OF TO CONTINUE FOR SEVERAL YEARS APPEARS TO INDICATE THAT THE ORGANIZATION WAS DEFECTIVE AND INSUFFICIENT . HOWEVER THAT CONCLUSION IS NOT JUSTIFIED IN THIS CASE . IN FACT, IN LEAVING TO THE COMPETENT NATIONAL AUTHORITY THE TASK OF ISSUING THE NECESSARY CERTIFICATES, THE DEFENDANT PURSUED THE COURSE WHICH APPEARED THE MOST APPROPRIATE AND THE MOST LIKELY TO AFFORD THE BEST GUARANTEE AGAINST ANY ABUSE . SINCE THE CERTIFICATES FORMED AT THE SAME TIME THE LEGAL BASIS, ACCORDING TO DUTCH LAW, FOR THE RE-EXPORT OF THE FERROUS SCRAP, IT WAS NATURAL TO ENTRUST THEIR ISSUE TO THE NATIONAL AUTHORITIES WHO, MOREOVER, WERE THE BEST QUALIFIED TO CARRY OUT THE NECESSARY CHECKS . THE ISSUE OF THE CERTIFICATES HAD NOT BEEN LEFT TO A SUBORDINATE AUTHORITY BUT TO A MINISTRY . THE DUTCH REGULATIONS PROVIDED FOR AN EXTREMELY DETAILED PROCEDURE PRIOR TO THE ISSUE OF THE CERTIFICATES FOR CHECKING THE ORIGIN OF THE FERROUS SCRAP IN QUESTION; IT WAS IN FACT IMPOSSIBLE TO FORESEE THAT ACTS OF FRAUD COULD OCCUR IF THIS SYSTEM WERE APPLIED . IN THESE CIRCUMSTANCES, THE DEFENDANT CANNOT BE BLAMED FOR HAVING ADOPTED THIS SYSTEM AND THE FACT OF ITS HAVING DONE SO CANNOT IN ANY CASE BE DESCRIBED AS A WRONGFUL ACT OR OMISSION . THIS ALSO HOLDS GOOD WITH REGARD TO LACK OF SUPERVISION . IN FACT, IT WOULD HAVE BEEN EXCESSIVE TO CHECK CERTIFICATES COMING FROM A MINISTRY AND PURPORTING TO BE OFFICIAL DOCUMENTS, AT ANY RATE SO LONG AS THERE WAS NO INDICATION OF ABUSE WHICH COULD RAISE DOUBTS AS TO THEIR AUTHENTICITY . THE ARGUMENT OF THE APPLICANTS THAT THE REPLY GIVEN BY THE HIGH AUTHORITY IN THE EUROPEAN PARLIAMENT TO THE QUESTIONS PUT BY MR VAN DER GOES VAN NATERS AND MR NEDERHORST AND THE LETTER OF 24 FEBRUARY 1958 ADDRESSED TO THE PRESIDENT OF THE EQUALIZATION FUND BY THE VICE-PRESIDENT OF THE HIGH AUTHORITY, MR SPIERENBURG, CONSTITUTED AN ADMISSION OF A WRONGFUL ACT OR OMISSION SHOULD BE REJECTED . ALTHOUGH IN FACT THESE STATEMENTS DID INQUIRE HOW AN IMPROVEMENT OF THE SYSTEM COULD AVOID SUCH DEFECTS IN FUTURE - AND IT WAS ONLY AFTER THE ACTS OF FRAUD THAT THOSE DEFECTS CAME TO LIGHT - THEY DO NOT CONSTITUTE AN EXPRESS ADMISSION THAT A WRONGFUL ACT OR OMISSION ON THE PART OF THE HIGH AUTHORITY HAD OCCURRED . THEY CANNOT MOREOVER TRANSFORM A COURSE OF ACTION BY THE DEFENDANT INTO A WRONGFUL ACT OR OMISSION - A DESCRIPTION WHICH SUCH A COURSE OF ACTION DOES NOT IN FACT DESERVE . P . 423 IN ITS JUDGMENT IN THE FERAM CASE ( REC . 1958/1959, PP . 506 ET SEQ .), THE COURT HAD REFUSED A REQUEST FOR REPARATION FOR INJURY TO THE APPLICANT FERAM; THIS REQUEST WAS BASED ON THE SAME GROUND AS THE PRESENT APPLICATION, NAMELY THE EXISTENCE OF A WRONGFUL ACT OR OMISSION ON THE PART OF THE HIGH AUTHORITY COMPRISING ITS FAILURE TO PROVIDE A SUFFICIENT CHECK ON THE OPERATION OF THE EQUALIZATION SCHEME . THE FACTS REFERRED TO BY THE APPLICANTS IN THE PRESENT DISPUTE, INASMUCH AS THEY RELATE TO THE VAN DER GRIFT AFFAIR, DO NOT CONTAIN ANY NEW FACTOR WHICH MIGHT LEAD THE COURT TO ABANDON ITS POSITION AS DEFINED IN THE FERAM CASE . THE ACTION MUST, THEREFORE, BE DISMISSED AS BEING UNFOUNDED . Decision on costs THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS RELATING TO THE VAN DER GRIFT AFFAIR . THEY HAVE ALSO FAILED IN THEIR ATTEMPT TO BRING BEFORE THE COURT OTHER ACTS OF FRAUD DISCOVERED AFTER THE IRREGULARITIES RELATING TO THE SAID AFFAIR . THEY WERE, HOWEVER, INDUCED TO MAKE THESE ATTEMPTS BY THE FACT THAT THEY WERE UNAWARE, OR MIGHT HAVE BEEN UNAWARE, THAT THE COURT WOULD RECEIVE CLAIMS MADE AFTER THE CLOSING OF THE ACCOUNTS OF THE EQUALIZATION SCHEME, WITHOUT HOLDING THEM TO BE OUTSIDE THE PERIOD OF LIMITATION . THIS LACK OF AWARENESS, FOR WHICH THE APPLICANTS CANNOT BE BLAMED, INDUCED THEM TO INSTITUTE PROCEEDINGS FOR COMPENSATION WITHIN THE TIME WHICH THEY CONSIDERED APPROPRIATE . THAT FACTOR CONSTITUTES AN EXCEPTIONAL CIRCUMSTANCE, WITHIN THE MEANING OF ARTICLE 69 ( 3 ) OF THE RULES OF THE COURT, FOR OFFSETTING THE COSTS AS WILL BE DEFINED BELOW IN THE OPERATIVE PART OF THE JUDGMENT . Operative part THE COURT HEREBY 1 . JOINS THE CASES ENTERED UNDER NUMBERS 46/59 AND 47/59 FOR THE PURPOSES OF THE PRESENT JUDGMENT BY REASON OF THEIR INTERCONNEXION; 2 . DISMISSES THE APPLICATIONS AS UNFOUNDED; 3 . ORDERS THAT THE COSTS BE SHARED, EACH PARTY BEARING ITS OWN COSTS .

NANAVATI. J. In this appeal, filed by some of the officers of the Himacahal Pradesh Government, what is called in question are the remarks made against them by the High Court, while disposing of Criminal Revision No. 56/82. Respondent No.1 Mast Ram Tanta was tried by the Court of Sub-Divisional Magistrate, Theog for certain offences punishable under the Indian Penal Code and the Forest Act. Respondnt No. 1 pleaded quilty and was sentenced to pay fine only. The High Courtfinding that the sentence imposed upon Respondent No. 1 was inadequate, in exercise of its sub moto powers, issued numberice to him calling him to show cause why the sentence should number be enhanced. During those proceedings the High Court found that the whole trial was companyducted in an unholy haste and there was plea bargaining. Therefore, instead of enhancing the sentence it thought it proper to quash the whole trial and remanded the case back to the trial companyrt for companyducting the trial afresh. While disposing of the Revision Application in that manner the High Court made certain observations against the present appellants. Having gone through the judgment, we find that the said observations are part and parcel of the reasoning of the High Court and they have been made while appreciating the evidence on record. Those observations are a part of the reasoning of the High Court.

Lord Justice Wilson: West Sussex County Council, the defendant, appeals against an order made on 25 March 2009 by His Honour Judge McMullen QC, sitting as a deputy judge of the High Court, Queen's Bench Division, by which he entered judgment for Mrs Russell, the claimant, against it and directed that her damages be assessed, albeit subject to a 50% reduction for contributory negligence. The defendant is the highway authority for a highway off which, on 1 March 2004, the claimant, when driving a motor car, drove into a tree and thereby suffered serious personal injuries. She sued the defendant for a failure to maintain the highway under s.41(1) of the Highways Act 1980. The judge held, or rather (such being an issue in the appeal) may have held, that the defendant had failed to "maintain" the highway within the meaning given by law to that verb in the subsection. At all events he turned to consider the defence made available to a highway authority by s.58(1) of the Act, which requires it to prove that it has taken all such care as was reasonably required to secure that the relevant part of the highway was not dangerous for traffic. The judge held that the defendant had failed to establish that defence. Accordingly, subject to the finding of contributory negligence to which I have referred, he entered judgment for the claimant. The defendant appeals on the primary basis that either the judge did not hold it to be in breach of s.41(1) or, if he did, he was wrong to do so. The secondary basis of the appeal is that he should not have rejected its defence under s.58(1). In either event, says the defendant, it should therefore not have been held liable to the claimant at all. Its tertiary, fall-back, position is that he should have set the level of the claimant's contributory negligence at substantially higher than 50%. The claimant cross-appeals on the basis that the judge set the level of her contributory negligence too high and should have set it at only 20%. Neither party challenges the judge's primary findings of fact. On the date of the accident the claimant was aged 48 and lived in Ockley, a village which lies south of Dorking, with her husband and teenage son. At the time of the accident she was driving her son to school in Lancing. The journey takes about 40 minutes. She drove her VW Golf TDi motorcar. Her son was in the front passenger seat. Ockley lies on the A29 road which runs from north to south as far as Bognor Regis. The claimant's preferred route was to take the A29 southwards for about four miles and then, where the A29 intercepts with the A281, which runs west/east, to turn left, go east for a bit and then drive on down to the coast. The accident occurred on the A29, about three miles south of Ockley and shortly before the intersection to which I have referred. It was a frosty morning. As she waited for her son to get ready, the claimant ran the engine of the car in order to heat it and so to defrost the windows. They set off at about 7:45am. As it stretches south towards the intersection the A29 is a relatively straight road and, at that time of the morning, not much traffic goes south but a certain amount, heading no doubt for London, goes north. In the event no other motorcar was involved in the accident. During the few seconds of its sequence, no other car travelling south was either visible in front of the claimant or able to see her car from behind and there was no car travelling north within her sight or within sight of her. At the point at which the sequence of the claimant's accident began, the road bends slightly to the left but not so as to reduce good visibility. The defendant had resurfaced the carriageway in about October 2001 and, apart from the condition of the verge and in particular from the difference in height (known as the "drop-off") between the carriageway and the verge on the claimant's left-hand side, the road was in good condition. It had white lines to demarcate the middle of the road, some continuous and some dotted; and there were continuous white lines on each side of the carriageway, intended to indicate to drivers that they should keep on the carriageway within the lines. At the point at which the accident occurred the width of the entire tarmac carriageway was 6.2m and the width between the white lines on each side of the road was 5.6m. The judge observed that, were a car to be driven down the centre of the carriageway, it had about 0.5m to spare before it went into the verge. On any view the road was fairly narrow by A road standards and there was only a small width of carriageway outside the white lines. Underneath the road at this point and crossing it from west to east is a river. Thus the road acts as a bridge over it. But no incline and accordingly no decline are necessary for the road to act as a bridge. The road-user would realise that he was travelling over a bridge only because of the existence of two brick parapets, built fairly low, on either side of the road, well set back from the road on the far side of the verges. When in October 2001 it relaid the carriageway with tarmac, the defendant applied topsoil to the verges which brought their level approximately up to the level of the carriageway. But anglers fish that river; and it was their practice prior to the accident for them to park their cars on the verge, in particular (so it would appear) on the eastern side of the road, from just north of, to just south of, the bridge. It was not, of course, an authorised lay-by. Indeed the continuous white line on the sides of the carriageway is intended to indicate to drivers not to cross it. But it is the practice of local authorities sometimes to tolerate the unauthorised use of verges as lay-bys for fear that, if precluded from parking there, motorists will park more dangerously elsewhere. The fact is that, between October 2001 and March 2004, the level of the eastern verge sank both by the bridge and to the point south of it where the claimant collided with the tree. The sinking was probably accentuated by the use of the verge by anglers as a place to park their cars. About an hour after the accident (which probably occurred at about 7:53am), P.S. O'Neill (who had become a sergeant by the time when he gave his evidence to the judge) conducted a survey of that part of the eastern verge, and in particular of the height of the drop-off between the carriageway and the verge; he found that its height was variable but measured between four inches minimum to up to one foot maximum and that, while in parts the drop-off sloped or was (to use his word) chamfered, in others it was sheer. The judge found that, at the time when the sequence of the accident began, the claimant was driving at about 45mph. Although she had left Ockley and was thus outside the 30 mph restriction which protects it and although she was driving down a rural road in relation to which the maximum permitted speed was 60mph, she was (as was accepted on her behalf) driving too fast in circumstances in which, as she knew, there had been on that morning a hoar frost or (as it was also described) ice dew. The judge found that, at the time of the accident, the ambient temperature was about 0°. The claimant's expert, Mr Runacres, being a principal consultant to the Transport Research Laboratory and a distinguished expert in matters of road safety, explained that, when a car runs over hoar frost on a road, its tyres often melt it, whereupon – at such a temperature or lower – the water refreezes and forms black ice. The claimant probably skidded on black ice. She skidded somewhat to her left and her nearside front wheel – or both her nearside wheels – left the carriageway and (so the judge found) dropped down on to the edge of the verge, upon which it – or they – momentarily bumped along. P.S. O'Neill found scuff marks on the inside of both of the claimant's nearside tyres. It was agreed between Mr Runacres and one of the defendant's experts that the scuff marks indicated that the nearside wheels of the claimant's car had indeed dropped down off the carriageway and that the inside of the tyres had become scuffed by rotating hard against the drop-off. Nothing turns on the fact that the judge found that "at least … the front nearside wheel" had dropped off, he apparently being less clear that the rear such wheel had also done so. How high was the drop-off at the point where the wheel or wheels had dropped? The experts were agreed that, notwithstanding the sergeant's maximum measurement, the drop-off could not, at the relevant point, have been as much as a foot because the under-carriage of the car would have precluded its nearside wheels from running upright and hard against the drop-off if they had been as much as a foot lower than the offside wheels. In the event the judge found that, at the point when the sequence of the accident began, the height of the drop-off was "almost six inches". Then, of course, the claimant tried to restore the car to the carriageway. But the fact that the inside of her nearside wheels were running hard against a drop-off almost six inches high made the manoeuvre very difficult. In order to regain the carriageway the claimant had to steer violently towards her right and, although she thereby achieved the return of the car to the carriageway, she found herself on the wrong, western, side of the road. Fortunately, as I have said, no car was coming in the opposite direction. Thereupon of course she steered hard left in order to regain her correct side of the road; but – because of her speed – such again was a difficult manoeuvre and unfortunately she overcompensated and steered the car sharply to her left, off the road, across the verge and, tragically, into a tree. The claimant was rendered unconscious and the fire brigade had to cut open the roof of the car in order to extricate her from it. She suffered serious neurological and orthopaedic injuries. The injuries sustained by the son were relatively minor. P.S. O'Neill was a highly experienced and well-qualified member of the Road Traffic Collision Unit of Sussex Police. He found frost on the road and a slippery road surface. It was his view that the height of the drop-off, as measured by himself, represented a significant hazard to a vehicle that for whatever reason had come to the edge of the carriageway. He at once communicated that view to the defendant by telephone. Indeed, on 4 March 2004, no doubt by reference to his findings, Sussex police made a crash intelligence report and, so it would seem, sent it to the defendant. In the report the police stated: "Road surface has recently been relaid and is in good state of repair but due to the height of the new road surface the drop-off at the roadside is excessive (up to nearly 12 inches in places): it is suspected that the driver of the vehicle lost control of the vehicle to the near side and had to take excessive steering to regain the carriageway, due to the height of the surface in comparison to the grass verge, which in turn led to the loss of control of the vehicle totally, which subsequently collided with a tree." Within a few weeks thereafter the defendant had, by application of further topsoil, raised the level of the verge on the eastern, and perhaps also the western, side of the road approximately to the level of the carriageway. It also placed marker posts at intervals along the edge of the verge in order, successfully so it seems, to prevent anglers and others from continuing to park their cars on the verge. In his analysis of the defendant's liability, however, the judge was correct not to attach any weight to the defendant's swift and successful efforts to preclude recurrence of a similar accident. I first consider the duty of the defendant under s.41(1) and the way in which the judge approached it. The subsection states only that the authority is under a duty "to maintain the highway". The defendant accepted that a verge at the side of a carriageway is part of the highway. It was, however, also common ground that, notwithstanding the terminology of the subsection and the occasional reference in the authorities to the "absolute" nature of liability thereunder, the liability was less than to guarantee the safety of the highway for all users. The classic exposition of the duty is that of Diplock LJ in Burnside v.Emerson [1968] 1 WLR 1490, in which, at 1497A, he addressed the corresponding obligation of a highway authority under previous legislation. He defined the duty to maintain the highway as being "to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition". In Jones v. Rhondda Cynon Taff CBC [2008] EWCA 1497, being a decision of this court not cited to the judge, Laws LJ stressed, at [12], that the duty, thus defined, was significantly less stringent than to repair every defect in the highway which might foreseeably cause harm. The judge duly quoted the subsection. He reminded himself of the test which Diplock LJ had propounded. He also noted the decision of Scott Baker J in Kind v. Newcastle-upon-Tyne Council [2001] EWHC Admin 616, in which a complainant unsuccessfully sought to hold a highway authority responsible for making verges reasonably available for the use of walkers, cyclists and horse-riders by extending the metalled carriageway over them. Scott Baker J held that the focus had to be on the condition of the highway as a whole. I do not accept that the mildly curious terminology deployed by the judge in addressing the decision in Kind betrays misunderstanding of it. The judge also referred to the decision of this court in Rider v. Rider [1973] 1 QB 505. The claimant was a passenger in a car which her husband was driving and which collided with a van. The husband had been driving too fast. But the court upheld the judge's finding that the highway authority was, as to two thirds, responsible for the collision. The edge of the tarmac on the road abutted grass verges at a lower level and the edge had been inadequately repaired and in places "bitten off" so as to have become uneven. The trial judge found that the nearside wheels of the car had encountered an indentation on the edge of the tarmac and that such was, as to two thirds, the cause of the husband's loss of control. This court dismissed the highway authority's appeal. Sachs LJ stated, at 514E, that the authority's statutory duty was: "… reasonably to maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them … Motorists who thus use the highway, and to whom a duty is owed, are not to be expected by the authority all to be model drivers. Drivers in general are liable to make mistakes, including some rated as negligent by the courts, without being merely for that reason stigmatised as unreasonable or abnormal drivers … The highway authority must provide not merely for model drivers, but for the normal run of drivers to be found on their highways, and that includes those who make the mistakes which experience and common sense teaches are likely to occur." No criticism is made of the judge in his analysis of the law surrounding s.41(1). The first two of the grounds of appeal relate, however, to his application of that law to the facts. Granted that his judgment was delivered ex tempore on the third day of the hearing, the judge's application of the defendant's obligation under s.41 to the facts of the case was, it has to be said, elliptical. He said: "25. The first issue is whether s.41 applies. In my judgment it does. The verge is the responsibility of the highway authority: Kind above, certainly this part of the verge immediately adjacent to the drop-off. 26. The next question is whether section 58 provides a defence …" Of course s.41(1) raises two questions, namely whether the relevant area is part of the highway and, if so, whether the defendant, as the statutory authority, failed to maintain the highway as a whole within the meaning of the jurisprudence. At any rate in paragraph [25] the judge appears only to have addressed the first question, which was not in issue. For the defendant had conceded that the verge, thus including the drop-off between the carriageway and the verge, was part of the highway. The issue was in relation to breach within the meaning of the jurisprudence. Paragraph 25 did not address it. This was unfortunate. I cannot, however, subscribe to the suggestion that in that regard the judge fell into appealable error. He had addressed at length the relevant jurisprudence which posed the question whether, after due allowance was made for the likelihood that even normal drivers do not always drive well, the height of the drop-off rendered the highway as a whole not reasonably passable for ordinary traffic without danger. It is clear to me from other paragraphs of his judgment – indeed from its whole structure – that the judge held the defendant to be in breach of its obligation under the subsection. Indeed in my view the expert evidence – to which he referred at some length – drove that conclusion. It was the view of P.S. O'Neill, following his inspection of the site immediately following the accident, that the height of the drop-off represented "a significant hazard" to a vehicle that, for whatever reason, had come to the edge of the carriageway. Mr Runacres agreed: his evidence was that a drop-off of two or three inches would present no problem but that a drop-off within the parameters of height measured by P.S. O'Neill was – again – "a significant hazard" to the users of this road. Furthermore the two experts instructed on behalf of the defendant, namely Mr Hopwood, a highway engineer, and Mr Whitehead, a mechanical engineer with particular expertise in the investigation of road traffic accidents, each separately subscribed to a joint memorandum of agreement with Mr Runacres, the contents of both of which were significant. In particular, in their joint memorandum, Mr Runacres and Mr Hopwood agreed that the difference in level between the verge and the road surface constituted "a potential hazard" to road users. It was the defendant's contention both before the judge and before us that a hazard which was only "potential" did not achieve the level of danger necessary in order to amount to a breach of the subsection. In my view the judge addressed that point well in the following sentences: ""Potential" is crystallised when an event or a sequence of events occurs and the purpose of having a verge is to allow for the exceptional case of a car going off the road. Take a simple example: a trench, a ditch or a gutter, a foot deep, immediately abutting the metalled plane, would be a potential hazard and would actually be dangerous because it is foreseeable that a car, for one reason or another, may cross the unbroken white line." Nor do I accept that the judge's use of the concept of foreseeability in the latter sentence of that passage betrays the error of approach identified by Laws LJ in Jones, cited above. In a highly attractive submission Mr Faulks QC reminds us that this is a rural road; that the white lines on each side have been painted there by the defendant in order to indicate to drivers that they should not exceed them; and that topsoil in the verges will inevitably sink down below the level of the carriageway and will represent an inherently soft surface, particularly in winter (as indeed found on the day of the accident by P.S. O'Neill). But in particular Mr Faulks stresses that the height of the drop-off would not have represented a danger to drivers who were pulling off the carriageway in order, whether for fishing or otherwise, to park or halt. If the drop-off was a hazard at all, says Mr Faulks, it was a hazard only for those, like the claimant, who were driving at excessive speed. Rhetorically he asks: is the statutory obligation set so high as to require the maintenance of a verge at a level which will enable the carriageway to be regained by the driver of a car which, out of control, has dropped down on to it? The answer to that question is in my view squarely located in the judgment of Sachs LJ in Rider, cited and quoted above. I do not see how Mr Faulks can, by these points, escape the plain effect of the evidence of P.S. O'Neill and of the experts; and were I to be in error in having concluded that their evidence drove a conclusion that the defendant was in breach, it on any view entitled the judge to reach his clearly implied conclusion to that effect. I turn to the defence under s.58(1) of the Act. The subsection provides that it is a defence: "… to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic." Subsection (2) provides that, for the purposes of the defence, the court shall in particular have regard to: "(a) the character of the highway, and the traffic which was reasonably to be expected to use it; (b) the standard of maintenance appropriate for a highway of that character and used by such traffic; (c) the state of repair in which a reasonable person would have expected to find the highway; (d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway; …" There is, in my view, not much to be said in favour of the existence of a defence for the defendant under the first subsection. The nature of the works undertaken by the defendant in 2001, in particular its raising the level of the verges to the level of the carriageway, demonstrated its acceptance that it was, to put it at its lowest, desirable that their levels should be broadly equivalent. In this regard the defendant again stresses that topsoil will inevitably sink down, particularly if compressed by the unauthorised parking of cars. It relies upon the absence both of any reported accident at the site and of any recorded complaint about the state of the verge in general or about the height of the drop-off in particular. Its evidence was that routine inspections of that road were conducted monthly by two of its officers, travelling down it at no more than 30mph. Its area Highways Manager gave evidence that, even had the height of the drop-off been identified by the officers (which it was not), the defendant would have categorised it as a defect to be addressed only if and when other works had to be undertaken at the site. In my view, however, the ease with which P.S. O'Neill identified the height of the drop-off and the verdict of himself and the experts as to the danger which it represented provided ample justification for the judge's conclusion that, within the meaning of s.58(2)(d), the defendant could reasonably have been expected to know that the height of the drop-off was likely to cause danger to users of the highway and that, fixed with that constructive knowledge, it had failed to prove, for the purposes of the first subsection, that it had taken such care as was reasonably required to secure that the highway was not dangerous for traffic, i.e. by again raising the level of the verge. Another ground of appeal relates to the judge's treatment of the causation of the accident. In his final substantive paragraph his treatment of it was on any view clear and consonant with his conclusion: for there he stated that "the two factors causing the accident were the state of the road and the state of the driving". It is, however, an earlier paragraph of the judgment upon which Mr Faulks alights. There the judge had said that the claimant "might have been all right had the drop-off or the descent to the verge not been as severe as it was". Had he said that the claimant "would have been all right …" the judge's own treatment of causation would (concludes Mr Faulks) indeed also have been all right. But, so the argument runs, it is entirely insufficient for the conclusion to have been that, had the drop-off been less high, the claimant might have been all right. Yet surely the judge was there only saying – was he not? – that, had the drop-off not been dangerously high, the claimant might not have suffered any sort of accident at all but that, alternatively, she might in that event have suffered some sort of accident. The central task of the judge was of course to address the causation of the injuries actually sustained by the claimant, not of some possibly minor accident of an entirely hypothetical kind. In that former respect his conclusion, as ultimately set out, was not only entirely clear but in my view inevitable. For it was recorded by Mr Runacres and Mr Whitehead in their memorandum of agreement that: "7. It is agreed that the "drop-off" that was present at the nearside edge of the carriageway would have made it much harder for any driver to have regained the carriageway and to have retained control of their vehicle. That is, when compared to a situation where the verge is level with, or slightly higher than, the carriageway edge. 8. Therefore, it is agreed that the "drop-off" at the carriageway edge probably contributed significantly to the outcome of the incident." I turn to the rival complaints about the proportion of the claimant's contributory negligence favoured by the judge. As both counsel accepted before us, it is hard to expatiate on an issue of this kind. Although, on behalf of the claimant, Mr Sweeting QC contends that her car skidded only marginally off a relatively narrow carriageway and that the defendant's breach of duty thereupon made its substantial contribution, the fact is that, in conditions of which she was well aware, the claimant was driving significantly too fast. Mr Sweeting complains that the judge never identified the speed at which it would have been otherwise than negligent for the claimant to have proceeded down that stretch of road. In my view there was no obligation upon him to enter upon such dangerous speculation. We judges have many burdens but at least our duties require us to do no more, unless we wish to do so, than to state whether the facts which we have found cross, or fail to cross, the threshold which the law has set for us. That to a limited extent the claimant was contributorily negligent was admitted, even before the judge. Mr Sweeting wishes to argue that, were the claimant's speed to have been only slightly higher than that of a reasonably careful driver, the attribution to her of responsibility for her injuries should have been very much less than that to the defendant. But I cannot fault the judge's ultimate apportionment, reached with all the advantages of exposure to live evidence and of a more intricate enquiry than we can conduct. Mr Faulks tells us that the judge's determination has provoked considerable disquiet among highway authorities about the standard of maintenance required of them. It would go too far to say that the judge's determination, which, as already appears, should in my view be upheld, turns on its own facts. But determinations of this character are extremely fact-sensitive. This is a decision about the height of a drop-off between a carriageway and a verge in all the circumstances of this case, including the relative narrowness of the road (even though it was an A road), its relative straightness and thus the encouragement to speed which it represented, its wooded environs, conducing in particular to shade, to damp and to the sinking of top-soil on its verge, and the further effect on the level of the verge caused by its use as an unauthorised lay-by, such use being clearly visible from the condition of the ground even when not actually so used. For the above reasons I would dismiss both the appeal and the cross-appeal. Mr Justice Henderson: I agree. Lady Justice Arden: I also agree.

THIRD SECTION CASE OF YUSHIN AND OTHERS v. RUSSIA (Application no. 2403/06 and 7 others - see appended list) JUDGMENT STRASBOURG 8 February 2018 This judgment is final but it may be subject to editorial revision. In the case of Yushin and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Jolien Schukking, judges,and Liv Tigerstedt Acting Deputy Section Registrar, Having deliberated in private on 18 January 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2. The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 6. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions given in their favour and of the lack of any effective remedy in domestic law. They relied, expressly or in substance, on Article 6 § 1 and Article 13 of the Convention and on Article 1 of Protocol No. 1, which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 7. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997‑II). 8. In the leading case of Gerasimov and Others v. Russia, no. 29920/05 and 10 others, 1 July 2014, the Court already found a violation in respect of issues similar to those in the present case. 9. Having regard to the nature of the judicial awards in the applicants’ favour (see the appended table for details of court orders), the Court considers that the applicants had, by virtue of these judgments, a “legitimate expectation” to acquire a pecuniary asset, which was sufficiently established to constitute a “possession” within the meaning of Article 1 of Protocol No. 1. 10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants’ favour. 11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. 12. The applicants also complained under Article 13 of the Convention about the lack of an effective domestic remedy in respect of the non‑enforcement. The Court has already noted the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and non-pecuniary nature on the Russian authorities, introduced in the wake of the pilot judgment, which enables those concerned to seek compensation for damage sustained as a result of excessive delays in the enforcement of court judgments (see Kamneva and Others v. Russia (dec.), no. 35555/05 and 6 others, 2 May 2017). Even though the remedy was – or still is – available to the applicants, the Court reiterates that it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring again their claims before domestic tribunals (see Gerasimov and Others, cited above, § 230). 13. However, in the light of the adoption of the new domestic remedy, the Court, as in its previous decisions, considers that it is not necessary to examine separately the admissibility and merits of the applicants’ complaint under Article 13 in the present cases (see, for a similar approach, Kamneva and Others, cited above, and, mutatis mutandis, Tkhyegepso and Others v. Russia, no. 44387/04 and 11 others, §§ 21-24, 25 October 2011). This ruling is without prejudice to the Court’s future assessment of the new remedy. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 15. The Court notes that the applicants did not submit any claims for just satisfaction in due time. It therefore does not find it necessary to make any award. At the same time it observes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaints concerning the non-enforcement or delayed enforcement of domestic decisions admissible; 3. Holds that these complaints disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning the non-enforcement or delayed enforcement of domestic decisions; 4. Decides that it is not necessary to examine the admissibility and merits of the applicants’ complaint under Article 13 of the Convention; 5. Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic decisions referred to in the appended table. Done in English, and notified in writing on 8 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtLuis López Guerra Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of the Protocol No. 1 (non-enforcement or delayed enforcement of domestic decisions and lack of any effective remedy in domestic law) No. Application no.Date of introduction Applicant name Date of birth Relevant domestic decision Start date of non-enforcement period End date of non-enforcement period Length of enforcement proceedings Domestic order 2403/06 03/11/2005 Nikolay Ivanovich Yushin 01/09/1934 Arsenyevsk Town Court of the Primorye Region, 20/07/2000 28/08/2000 pending More than 17 years and 1 day “To oblige the local council ... within a year to carry out works for evacuation of rain water and prevention of flooding of the land plot of [the applicant]” 44360/07 18/09/2007 Household Roman Vladimirovich Gunin 25/09/1980 Irina Vasilyevna Gunina 17/08/1945 The Justice of the Peace of the 2nd Court Circuit of the Oktyabrskiy District of Ivanovo, 30/05/2006 16/11/2006 27/10/2009 2 years and 11 months and 12 days “... to oblige MPZhKh of Ivanovo to replace the lining and to plaster the ... room, to reinforce and to plaster the wall between the kitchen and toilet in apartment 162 building 47, prospect Lenina... to order MPZhKh of Ivanovo to pay [the applicants] 500 Russian roubles of non-pecuniary damage ...” 34128/09 04/06/2009 Luiza Akhtyamovna Bakhtizina 02/06/1939 Vakhitovskiy District Court of Kazan, 05/09/1995 05/05/1998 pending More than 19 years and 3 months and 24 days to perform repair works in the applicant’s apartment 56597/12 13/08/2012 (5 applicants) Household Yelena Borisovna Aleshina 20/08/1976 Boris Nikolayevich Aleshin 14/09/2002 Dmitriy Nikolayevich Aleshin 07/01/1999 Ilya Nikolayevich Aleshin 06/07/1997 Anastasiya Nikolayevna Aleshina 02/07/2008 Yakutsk Town Court, 12/04/2006 22/04/2006 pending More than 11 years and 4 months and 7 days “...the Ministry of Youth Policy and ... ZhSK ‘Molodezhnye zhilye kompleksy’ should put [the applicants] on the list of the subprogramme ‘Provision of housing for young families’ ...” 63752/12 18/09/2012 Pavel Valeryevich Stsepuro 08/07/1975 Ustin Valeryevich Stsepuro 22/05/1977 Yakutsk Town Court, 21/11/2005 26/12/2005 24/07/2015 9 years and 7 months and 2 days to provide with housing 78214/13 14/11/2013 Sergey Ivanovich Davydov-Orlov 22/11/1960 Oktyabrskiy District Court of Tomsk, 09/11/2012 14/05/2013 pending More than 4 years and 3 months and 15 days “... the Administration of Tomsk to provide [the applicant] with [residential room] after his eviction from [previous address] ... ” 2844/14 28/12/2013 Lyudmila Grigoryevna Firsova 30/10/1946 Simonovskiy District Court of Moscow, 22/04/2011 20/02/2012 pending More than 5 years and 6 months and 9 days “... to return a metallic tent [belonging to the applicant] to its previous location” 40484/14 12/05/2014 Arina Nikolayevna Pulkina 22/12/1969 Kondopoga Town Court of the Republic of Karelia, 03/10/2012 25/01/2013 pending More than 4 years and 7 months and 4 days “... the Administration of Kondopoga to carry out reparation works in the [applicant’s] block of flats, in particular of the roof, isolation, water supply, and sewerage system, by 01/07/2013 ... ”

OPINION OF MR ADVOCATE GENERAL VERLOREN VAN THEMAAT DELIVERED ON25 OCTOBER 1984 ( ) Mr President, Members of the Court, 1. Introduction The appellant, Charles Lux, claims that the Court should annul the Court of Auditors' decision of 20 January 1982 classifying him in Grade A 5, Step 3. He considers that, by virtue of the general internal decisions of the Court of Auditors concerning the criteria for appointment adopted on 21 February and 12 June 1980, he ought to have been appointed to Grade A 4. The appellant's appointment follows his success in an inter-institutional competition (CC/A/3/80) for a post in Career Bracket A 5/4 in the Legal Department of the Court of Auditors. Originally he was appointed by decision of 9 September 1980 to Grade A 5, Step 2. He lodged a complaint against that decision pursuant to Article 90 (2) of the Staff Regulations, because his appointment was wrongly based on Article 46 of the Staff Regulations and not the general internal decision of 21 February 1980. The President of the Court of Auditors, in his capacity as appointing authority, informed the applicant on 18 December 1981 that he ought indeed to have been appointed on the basis of the internal decision of 21 February 1980. After a further examination of the application of the said internal decision, the applicant's appointment of 9 September 1980 was annulled by the aforesaid decision of 20 January 1982 and he was appointed this time to Grade A 5, Step 3, express reference being made to the internal decision of 21 February 1980. The applicant has brought the present action against the decision of 20 January 1982. 2. Legal basis of the decisions The measures which are relevant to the present case are Article 31 of the Staff Regulations and the Court of Auditors' internal decisions of 21 February and 12 June 1980 and, to a lesser extent, that of 3 December 1981. The relevant part of Article 31 reads as follows : “1. Candidates thus selected shall be appointed as follows: Officials in Category A of the Language Service: to the starting grade of their category or service; ... 2. However, the appointing authority may make exceptions to the foregoing provisions within the following limits : ... (b) In respect of other grades [that is to say, other than Grades A 1, A 2, A 3 and L/A 3], up to one-third of the appointments to becoming vacant; up to half the appointments to newly created posts. ...” The internal decision of 21 February 1980 on the criteria for appointment reads as follows: “Décision relative aux critères de classement et de nomination du personnel La Cour des comptes des Communautés européennes, vu le statut des fonctionnaires, notamment les articles 2, 5, paragraphe 3, 29, 30, 31 et 32...; vu la décision de la Cour relative à la politique du personnel en date du 25 avril 1979; considérant qu'il y a lieu d'établir des critères de classement égaux pour les agents d'une même catégorie ou d'un même cadre; arrête la présente décision : Article 1er Classement au grade de base de la carrière de base d'une catégorie En règle générale, l'autorité investie du pouvoir de nomination nomme le candidat lauréat d'un concours au grade de base de la carrière de base de sa catégorie ou de son cadre. Article 2 Nomination dans un grade autre que le grade de base Par dérogation à l'article 1er, l'AIPN peut procéder à la nomination dans un grade autre que le grade de base de la carrière de base de sa catégorie ou de son cadre, à condition que l'intéressé justifie d'une expérience professionnelle minimale de: pour la catégorie A/LA: moins de 4 ans pour le grade A 7/LA 7 4 ans pour le grade A 6/LA 6 6 ans pour le grade A 5/LA 5 10 ans pour le grade A 4/LA 4 15 ans pour le grade A 3/LA 3 ...” The decision of 12 June 1980 provided as follows: ... “1. Les critères de classement dans le grade et l'échelon établis par la Cour et exposés dans le document 8/80 Rev. 1 resteront en vigueur jusqu'à ce que les nominations à effectuer à la suite des concours internes aux institutions actuellement en cours auront été prononcées. Dès que ces opérations seront terminées [date à établir par l'AIPN], les critères exposés dans le document 8/80 Rev. 1 seront amendés ou complétés palles dispositions suivantes qui, d'ailleurs, sont d'application dès aujourd'hui aux agents temporaires qui seront sélectionnés... 2. ... 3. La nomination immédiate en A 4 et A 6, tant en ce qui concerne les agents permanents que les agents temporaires, ne sera prononcée que dans des circonstances exceptionnelles, à justifier cas par cas, par référence aux fonctions à occuper. Les grades supérieurs [A4 et A 6] des carrières A 5/4 et A 6/7 sont en principe réservés pour des promotions...” The new policy, set out at the end of that decision to appoint to the higher grade of a career bracket only in exceptional circumstances, was then incorporated into the general decision on appointments of 3 December 1981. Article 3 of that decision reads as follows: “1. Par dérogation à l'article 1er, l'AIPN peut, dans des circonstances exceptionnelles justifiées par référence à l'emploi à pourvoir, procéder à la nomination dans le grade supérieur des carrières de base et des carrières intermédiaires, à condition que l'intéressé justifie d'une expérience professionnelle au sens de l'article 2, paragraphe 2, d'une durée minimale de 10 ans pour les grades A 4 et LA 4. ... ” 3. The submissions of the parties The applicant relies inter alia on the internal decision on appointments of 21 February 1980, to which the contested decision of 20 January 1982 appointing the applicant expressly refers. He maintains that on the basis of the aforesaid internal decision all appointments were made to the higher grade of a career bracket. That general policy was adopted because the Court of Auditors was a new institution which had to provide itself with the necessary staff. When that had been accomplished, appointments to the higher grade were restricted to exceptional cases, regard being had inter alia to the duties to be performed. That change in appointments policy is apparent from the decision of 12 June 1980, except for the proviso in respect of competitions already in progress, and it is also clearly apparent from the decision of 3 December 1981. The applicant maintains that on 1 August 1980 he possessed the 10 years' experience required for appointment to Grade A 4. In so far as his appointment to Grade A 4 does not already follow directly from the internal decision, it must follow on the basis of the principle of equality. The Court of Auditors admits that under the decision of 21 February 1980 almost all, if not all, appointments were made to the higher grade in a career bracket. There were, however, two distinct phases. The first phase, which ended on 1 April 1980, was aimed at providing the new institution with staff of considerable ability. That was achieved by means of internal competitions. During the subsequent phase, that is to say from August 1980, appointments were generally made to the lower grades of career brackets except in exceptional circumstances. According to the Court of Auditors, the applicant's appointment was made in the second phase since it was made in September 1980. Moreover, it would be inconsistent with the discretion conferred on the appointing authority by Article 31 (2) of the Staff Regulations for the internal decision to require it to appoint the applicant to Grade A 4. It is clear from that provision that there must be exceptional circumstances. The defendant contends that it is clear from the case-law of the Court that the internal decision may not infringe the rules of the Staff Regulations. 4. Assessment of the submissions In my view, the solution to the present case is to be found in the answer to the question which the Court put to the Court of Auditors during the oral procedure. The Court asked to which group or phase the applicant's appointment belonged. Having regard to the documented reply which the defendant gave to the Court after the hearing by letter dated 6 June, its original claim that the appointment took place in the second phase is no longer tenable. In my opinion it follows that the applicant's appointment must be based upon the decision of 21 February 1980. In the first place, the contested decision of 20 January 1982 appointing the applicant refers thereto expressly. In the second place, that inference is to be drawn from the decision of 12 June 1980, which states that the criteria for classification established on 21 February 1980 are to remain in force “... jusqu'à ce que les nominations à effectuer à la suite des concours internes aux institutions actuellement en cours auront été prononcées. Dès que ces opérations seront terminées [date à établir par l'AIPN] les critères exposés... seront amendés...”. It is apparent from the documents produced that various stages of the inter-institutional competition in question had taken place before 12 June and that at that date the competition was therefore one of the competitions in progress, in respect of which the decision of 12 June expressly stated that the criteria laid down on 21 February 1980 were still applicable. The closing date for applications was 5 May. The Selection Board drew up its final report on 10 June. The report was received by the appointing authority on 12 June and the appointment was then made on 9 September 1980. In my opinion it clearly follows from the foregoing that, according to the decision of 12 June, the applicant's appointment following inter-institutional competition No CC/A/3/80 should have been made on the basis of the internal appointment criteria adopted on 21 February 1980. The defendant has not denied that the applicant possessed the 10 years' experience required as a minimum for appointment to Grade A4 under the internal decision. Nor has it contended that the aforesaid appointment criteria infringed Article 31 (2). Finally, it is necessary to inquiry whether, in view of Article 31 of the Staff Regulations, the applicant may rely on the internal decision of 21 February. The Court of Auditors docs not deny that the applicant has the right to do so, but maintains that he cannot derive any advantage therefore in view of the discretion which Article 31 confers on the appointing authority. The Court has now held on numerous occasions that an internal decision establishes a rule of conduct specifying the practice to be followed and that the administration may not depart from that practice without stating the reasons which have led it to do so, since otherwise the principle of equal treatment would be infringed (cf. recently the judgment of 1. 12. 1983 in Case 343/82 Michaelv Commission). The sole recital in the preamble to the internal decision applicable in this case bases the classification criteria laid clown in the decision on the principle of equality. I have already shown that the defendant's argument that it departed from the internal decision of 21 February because the applicant's appointment took place in the second phase is not tenable. The defendant cannot contend that the second phase began in April or August 1980, since the decision of 12 June expressly stated the contrary with regard to inter-institutional competitions which were still in progress. It has not been contended that the practice followed during the first phase of recruitment of making all appointments to the higher grade where the conditions relating to experience were satisfied was contrary to Article 31. Consequently the Court need not, in my view, give judgment on that point. The question which must be decided is whether the applicant's appointment on the basis of the internal decision would be contrary to the aforesaid provision of the Staff Regulations. The defendant claims to find support for an affirmative reply to that question in the Court's decisions in Case 33/67 (Kurrer v Council [1968] ECR 127) and Case 102/75 Petersen v Commission [1976] ECR 1777). It is indeed apparent from those cases that appointment to the higher grade of a career bracket must be an exception to the general rule that officials in Category A are to be appointed to the starting grade in their career bracket. However, having regard to the circumstances of those cases, it is clear that the defendant cannot rely upon them. In the first case the applicant complained that in the competition notice it was stated that the appointment would be made directly to Grade A 5. The Court held that such an exceptional appointment was justified by the specific needs of the service in order to correct a patent imbalance in the composition of the department concerned. In the second case the applicant became acquainted with the internal criteria for appointment after his appointment. The Court held inter alia that those criteria did not restrict the appointing authority in making its appointments. In that case the aforesaid criteria themselves clearly revealed that there were exceptional circumstances. However, in the present case the criteria laid down by the internal decision of 21 February 1980 are such that all appointments may be made to Grade A 4 provided that the requirement of at least 10 years' experience is met; that power has been exercised in every case other than the applicant's. It is not denied that the applicant had the requisite experience for appointment to Grade A 4. The decisions of 12 June 1980 and 3 December 1981 confirm that the liberal policy which was originally applied and which is applicable in the present case by virtue of the internal decision of 21 February 1980 was a transitional and exceptional measure justified by the need to set up a new institution. In conclusion I consider that the contested decision of 20 January 1982 appointing the applicant must be annulled since it was adopted in breach of the internal decision of 21 February 1980 and the general principle of equality, the principle which forms the very basis of that decision according to its preamble. ( ) Translated from the Dutch.

K.SIKRI,J. Leave granted. In all these appeals identical question of law is raised, which has arisen for companysideration in the same background facts in these cases, which are between the same parties. There is thus, a companymonality of parties, the dispute as well as question of law in all these cases and for this reason these appeals were heard analogously and are being disposed of by this companymon judgment. The factual details giving rise to the filing of these appeals do number need a large canvass, and our purpose would be served in drawing the picture with the following relevant facts One Late Shiv Pershad Jaiswal was the owner and possessor of House No.11-2-378, Habeed Nagar, Hyderabad as well as House No.4-114 to 117 with appurtenant land admeasuring about Ac.2.05 guntas at Madchal, R.R. District. After his death, the respondent herein daughter of Shiv Pershad Jaiswal filed the Suit, being O.S.1287 of 1985, in City Civil Court, Hyderabad claiming1/3rd share in the aforesaid properties which were described in Schedule A and B to the plaint. In the said Suit, she impleaded her brother and mother as the defendants. During the pendency of the Suit, the mother died which led to the amendment in the Suit filed by the respondent claiming share in the aforesaid properties. Additional relief of rendition of accounts was also prayed for, as the brother appellant No.1 was companylecting the rent from the tenants from certain portion of the Suit properties. By way of amendment, appellant No.2 herein wife of appellant No.1 was also impleaded in whose favour her mother had bequeathed property by executing a Will dated 6.7.1983. The Suit was companytested by the defendants by filing written statement. Number of issues and additional issues were framed and both the parties led their evidence in support of their respective cases. After hearing the arguments, the learned City Civil Court passed the preliminary decree dated 5.8.1993 holding that the respondent as well as appellant No.1 herein brother were entitled to half share each in respect of property at Madchal, R.R. District Schedule A property . Suit qua Habeeb Nagar Schedule B property was dismissed. The Trial Court also directed the respondent to proceed against the appellants for rendition of accounts at the time of passing of final decree for the rent realized by appellant No.1 after the death of their mother respondent on 25.9.1985. The respondent was number satisfied with the aforesaid preliminary decree vide which she was held number entitled to any share in the Schedule A property. She, accordingly, filed the appeal against the said portion of the preliminary decree, before the High Court of Andhra Pradesh. Likewise, the appellant also filed appeal against other portion of the preliminary decree whereby the respondent was held entitled to half share in the Schedule B property. These appeals were listed for final hearing on 29.9.2005. However, companynsel for the appellants Ms. Shalini Saxena did number appear in the Court on that day. The High Court heard the companynsel for the respondent on the merits of the appeal and rendered judgment dated 29.9.2005 whereby appeal of the respondent was allowed and that of the appellants was dismissed. As per the appellants, they came to know about the said ex-parte judgment and order dated 29.9.2005 sometime in the year 2006. Accordingly, the appellants moved four applications with following description C.C.C.A. M.P. No.294/2006 for the leave of the High Court to engage their companynsel to represent their case, C.C.A. M.P. SR No.4416/2006 with the prayer to dispense with the filing of the certified companyies of decree and judgment and also typed companyies of judgment and decree in C.C.C.A. No.4 of 1994 dated 29.9.2005. C.C.C.A.M.P. SR No.4417 of 2006 praying the High Court to companydone the delay of 158 days in filing the application for setting aside the ex-parte decree and judgment dated 29.9.2005 in C.C.C.A. No.4 of 1994. C.C.C.A.M.P. SR No.4419 of 2006 for setting aside the exparte decree and judgment dated 29.9.2005 in C.C.C.A.No.4 of 1994. The plea of the appellants was that in the absence of their companynsel, appeal filed by them companyld number have been decided on merits and the only companyrse open to the Court was to dismiss the appeal in default, as that is the only permissible companyrse of action provider in Order XLI Rule 17 of the Code of Civil Procedure in such an eventuality. This argument, however, did number impress the High Court. A perusal of the order of the High Court would also demonstrate that the High Court was number impressed with the argument that number-appearance of the companynsel for the appellants was bonafide or there was sufficient cause shown for the companynsels absence. In fact, a perusal of docket proceeding in appeal of the respondents indicated that another Single Judge had heard companymon arguments in both appeals on an earlier occasion and even the judgment was reserved. However, owing to the fact that he was subsequently appointed as Chairman, Andhra Pradesh Administrative Tribunal and companyld number deliver the judgment, the appeals were directed to be listed for hearing afresh. The record was number showing as to who was represented appellants at that time and advanced the arguments. Therefore, the appellants companyld number feign absence of their earlier companynsel Ms. B.Shalini Saxena. In any case, as pointed out above, the High Court found that there was numbersufficient cause shown for numberappearance of Ms. B.Shalini Saxena. It is, further, pointed out by the High Court that the respondent herein was the appellant in one of the appeals C.C.A.No.4/94 and the appellants herein were the respondents in that appeal. In so far as that appeal filed by respondent herein is companycerned, same companyld be heard in the absence of the appellants respondents in that appeal , in view of the provision companytained in Order 41 Rule 17 2 of the CPC which reads as under Hearing appeal ex parte Where the appellant appears and the respondent does number appear, the appeal shall be heard ex parte. Since another appeal was heard along with this appeal, that was the reason for hearing both the appeals together. Giving these reasons, the applications filed by the appellants were dismissed and present appeals are filed challenging the dismissal order dated 31st July 2006. As mentioned above, the sole companytention of the appellant is that the appeal filed by the appellants companyld number have been dismissed on merits when the appellants remained unrepresented and at the most it companyld be dismissed only in default. In support of this companytention, Mr. Sanyal, learned senior companynsel appearing for the appellants referred to explanation appended to Order XLI Rule 17 of the CPC. Mr. Sanyal also relied upon the judgment of this Court in the case of Abdur Rahman Ors. v. Athifa Begum Ors. 1996 6 SCC 62. Mr. Anup George Chowdhuri, learned senior companynsel who appeared for the respondents argued on the same line which are the reasons adopted by the High Court in passing the impugned order. Additionally, he sought to draw sustenance from the judgment in the case of Ajit Kumar Singh Ors. v. Chiranjibi Lal Ors. 2002 3 SCC 609. It is a companymon case that the appeals filed by both the parties were governed by the procedure companytained in Order XLI of the CPC. As per Rule 12, in case the appellate companyrt does number proced to dismiss the appeal in limine under Rule 11, it shall fix a day for hearing the appeal. Rule 14 prescribes that numberice of the day fixed under Rule 12 is to be given in the appellate companyrt-house. Rule 16 gives the appellants a right to begin the arguments at the time of hearing of the appeal. As per Rule 17, the appeal can be dismissed in case of appellants default in appearance. Since the arguments hinges around this rule, we reproduce the said rule hereunder Dismissal of appeal for appellants default 1 Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does number appear when the appeal is called for hearing, the Court may make an order that the appeal be dismissed. Explanation.- Nothing in this sub-rule shall be companystrued as empowering the Court to dismiss the appeal on the merits. Hearing appeal ex parte. Where the appellant appears and the respondent does number appear, the appeal shall be heard ex parte. Where the appeal is dismissed in default under Rule 17, remedy is provided to the appellant under Rule 19 for re-admission of the appeal on moving an application and showing that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing. Likewise, Rule 21 gives an opportunity to the respondent to move similar application for rehearing of the appeal by demonstrating sufficient cause for numberappearance, if the appeal was heard in his absence and ex-parte decree passed. It is clear from the above that whereas appeal can be heard on merits if the respondent does number appear, in case the appellant fails to appear it is to be dismissed in default. Explanation makes it clear that the companyrt is number empowered to dismiss the appeal on the merits of the case. As different companysequences are provided, in case the appellant does number appear, in companytradistinction to a situation where the respondent fails to appear, as a fortiori, Rule 19 and Rule 21 are also differently worded. Rule 19 deals with re-admission of appeal dismissed for default, where the appellant does number appear at the time of hearing, Rule 21 talks of rehearing of the appeal when the matter is heard in the absence of the respondent and ex-parte decree made. In Abdur Rahman case supra , this Court made it clear that because of number-appearance of the appellants before the High Court, High Court companyld number have gone into the merits of the case in view of specific companyrse of action that companyld be chartered viz. dismissal of the appeal in default above companytinued in the explanation to Order XLI Rule 17, CPC and by deciding the appeal of the appellants on merits, in his absence. It was held that the High Court had transgressed its limits in taking into account all the relevant aspects of the matter and dismissing the said appeal on merits, holding that there was numberground to interfere with the decision of the trial companyrt. In Ajit Kumar Singh case supra as well, same legal position is reiterated as is clear from para 8 of the said judgment which is reproduced below There can be numberdoubt that the High Court erroneously interpreted Rule 11 1 of Order 41 CPC. The only companyrse open to the High Court was to dismiss the appeal for number-prosecution in the absence of the advocate for the appellants. The High Court ought number to have companysidered the merits of the case to dismiss the second appeal. See Rafiq v. Munshilal 1981 2 SCC 788 . The same view was reiterated in Abdur Rahman v. Athifa Begum 1996 6 SCC 62. However, after taking numbere of the aforesaid legal position, the Court went further with a poser as to whether the case should be remanded to the High Court for fresh disposal in accordance with the law. In the facts of that case where the findings of the first appellate companyrt was recordedthat there existed a relationship of landlord and tenant between the parties and since possession was taken as long back as in the year 1986 i.e. long before the filing of the appeal, the companyrt refused to exercise discretion under Art.136 of the Constitution to remand of the case to the High Court for fresh disposal. Thus, on the issue of law this judgment supports the case of the appellants herein. The Court, however, deemed it proper number to exercise its discretion and entertain the petition under Art. 136 for the aforesaid reasons. Reverting to the facts of the present case, as already pointed out above, the respondent had filed the Suit seeking partition of two properties claiming half share each in both these properties mentioned in Schedules A and B. The trial companyrt had decreed the Suit in respect of Schedule B property but dismissed the same qua Schedule A property. Both the parties had gone in appeal. In so far as appeal of the respondent is companycerned, the same has been allowed exparte as numberody appeared on behalf of the appellants. This companyrse of action was available to the High Court as sub-rule 2 of Order XLI Rule 17 categorically permits it. Though the appellants moved application for setting aside this order, the same was dismissed on the ground that numberreasonable or sufficient cause for numberappearance was shown. Therefore, this part of the order of the High Court is without blemish and is number to be interfered with. Appeal their against is dismissed. In so far as appeal of the appellants against grant of preliminary decree in respect of Schedule B is companycerned, it companyld number have been heard on merits in the absence of the appellant. The Court companyld only dismiss it in default. Having said so, the question that arises is that even if the appeal was to be dismissed in default, whether that order warranted to be recalled on application made by the appellants. As is clear from the reading of Rule 19 of Order XLI, the appellants were supposed to show sufficient cause for their number-appearance.

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 14 DECEMBER 1978 ( ) Mr President, Members of the Court, The applicant in this case has been employed by the European Communities in their Information Office since January 1961. The very unusual nature of the employer and employee relationship in her case has led to these proceedings. At the beginning the applicant had a contract as an expert which was repeatedly extended, on the last occasion until 28 February 1964. From 1 March 1964 she was employed as a member of the auxiliary staff within the meaning of Article 3 of the Conditions of Employment of Other Servants; this contract too was repeatedly extended, on the last occasion until 31 December 1968. With effect from 1 January 1969 there ensued a period of employment as a member of the temporary staff within the meaning of Article 2 of the Conditions of Employment of Other Servants. This lasted first of all until 31 December 1969 and was subsequently extended until 31 December 1971. This was followed once again by a contract employing the applicant as a member of the auxiliary staff which then lasted, with an extension, until 30 November 1972. From 1 December 1972, the applicant, as provided in a decision of 7 February 1973, was a probationary official; with effect from 1 September 1973 she was finally established as a permanent official by a decision of 22 October 1973. In the present proceedings the applicant, who has declared that essentially she has always carried out the same duties as a principal administrator, is concerned to ensure that the periods during which she was employed as an expert and as a member of the auxiliary staff and for which, as regards the time as an expert, no social insurance contributions were paid by the Community or, as concerns the employment as a member of the auxiliary staff, she was insured with the Belgian social insurance, are taken into account in assessing the retirement pension to which she will one day become entitled under the Staff Regulations. For this purpose she applied on 21 June 1976 to the Head of the Individual Rights and Privileges Division. She asked that for the periods already mentioned (1 January 1961 to 28 February 1964; 1 March 1964 to 31 December 1968; 1 January 1972 to 30 November 1972) she should be permitted to buy in additional pension rights within the meaning of Article 11 of Annex VIII to the Staff Regulations. To that application she received a notification dated 2 July 1976 that the transfer to the Community of the rights acquired under the Belgian social insurance was not possible owing to the absence of an agreement for that prupose. As a result the applicant made a further application on 13 August 1976 to the Head of the Individual Rights and Privileges Division. This time she did not mention buying in pension rights but expressed the view that the periods in question should be assimilated, for purposes of the rules relating to pension, to periods of employment as an official or a member of the temporary staff. This, she claimed, was at any rate so as regards the second period of employment as a member of the auxiliary staff since that followed immediately on the period during which the applicant had been a member of the temporary staff and for which it was beyond doubt that it must be taken into consideration in the context of the rules relating to pension. To this the applicant received a reply dated 14 September 1976 to the effect that the period during which she had been employed as a member of the temporary staff could indeed be taken into consideration in accordance with Article 3 (c) of Annex VIII to the Staff Regulations for the purpose of calculation of pension. However, as regards the second period of employment of the applicant as a member of the auxiliary staff an assimilation to periods of employment as an official was impossible; for this it would only be possible to buy in pension rights within the meaning of Article 11 (2) of Annex VIII to the Staff Regulations. As regards the period during which the applicant had been employed as an expert, her application to buy in pension rights was still being considered. In a further approach to the Head of the Individual Rights and Privileges Division dated 17 March 1977 the applicant repeated her point of view that both her period of service as an expert and that as a member of the auxiliary staff should be assimilated to periods of service as an official for the purpose of her rights to pension as during those periods the applicant had worked under the same conditions as officials. Furthermore, as regards her employment as a member of the auxiliary staff, it should be borne in mind that it had been interrupted by a period during which the applicant had been a member of the temporary staff. To this the Director of Personnel replied in a note of 30 June 1977 that it was not possible to take into account in the calculation of her entitlement to pension the period during which she had been employed as an expert. Thereupon the applicant on 20 July 1977 lodged with the appointing authority a formal complaint in pursuance of Article 90 of the Staff Regulations. In it she criticized the ‘decision’ contained in the note to which reference has just been made and claimed afresh that the periods in which she had been employed as an expert and as a member of the auxiliary staff should be assimilated for the purpose of the rules relating to pension to periods served by officials or members of the temporary staff. This complaint received a reply in a letter of 15 February 1978 signed by a member of the Commission in which reference was made to the fact that for the periods in which she had been employed as a member of the auxiliary staff the applicant had pension rights as against the Belgian social insurance, to which the Commission had paid contributions In relation to her period as an expert it would be necessary to carry out a comprehensive examination of the question on a general basis; the applicant would be informed of the result as soon as it was known. On 17 February 1978 the applicant brought an action before the Court claiming: — A declaration that the contracts entered into between her and the Commission, relating to the periods from 1 January 1961 to 31 December 1968 and from 1 January 1972 to 30 November 1972 are to be regarded as having been concluded with a member of the temporary staff; — In the alternative, a decision that for the calculation of her years of pensionable service for the purposes of her retirement pension the said periods of employment are to be assimilated to periods of employment as an official or at least as a member of the temporary staff; — An order that the Commission should take the periods in question into account as years of pensionable service; and, — The annulment of the implied decision rejecting the applicant's complaint registered on 22 July 1977. My view on these claims is as follows: I — Admissibility The admissibility of the application is contested by the Commission from several points of view. 1. Above all it expresses the view that the applicant has no present interest in obtaining a clarification -of questions concerning her future rights to retirement pension. It contends that such rights arise only with actual retirement and are therefore dependent on an uncertain future event; they also depend on the precondition that there has been a minimum period of service of 10 years (Article 77 of the Staff Regulations). Observations of the administration relating thereto have therefore no immediate legal consequences for the applicant's present situation. It should also be borne in mind that the point of view of the administration might change and that the Staff Regulations might be amended in this respect. The applicant has therefore at the most an abstract interest in the interpretation of the Staff Regulations. If this were to be regarded as sufficient it would more or less amount to enabling the public to undertake test actions on matters of general interest and in any case would create the risk of the bringing of all possible types of action with regard to the application of provisions of law to situations not yet existent and which might in fact never come to pass. It seems to me that the Commission, obviously borrowing from French legal practice, is taking its stand on the basis of too narrow an understanding of the concept of ‘interest in bringing an action’ or ‘interest in the protection of legal rights’ which may well be of some significance for the civil service law of the European Communities too but which has nowhere been defined in greater detail. In the case-law up to the present the question of the admissibility of an application with comparable facts has not yet been decided. The judgments cited by the Commission (Case 23/69 Anneliese Fiehn v Commission, judgment of 9 July 1970, [1970] ECR 547, and Case 5/74 Andreas Reinan. v Commission, judgment of 11 July 1974, [1974] ECR 819), cannot at all events give rise to the view that a clarification of certain questions by legal action may only be attempted if the applicant has already attained the relevant status, namely that of former official. The present case concerns the assessment of an official's future pension rights, which will be different according to whether certain periods of service performed for the Communities in the past are taken into account or not. It is clear that the applicant earns such rights continuously with each day of her employment as an official of the Communities. Even though these rights may only be claimed at a later date I am convinced that in this respect she already has at least a right to future enjoyment, the substance of which cannot simply be encroached upon even though certain details may still be altered by the legislature. In my opinion this legal situation gives rise to a sufficient interest in the present clarification of problems connected therewith. Not only would it in fact appear wholly unsatisfactory that what may be lengthy discussions about the scope of rights intended to secure old age should be allowed only at the time of commencement of retirement and thus to accept that a person entitled cannot at the proper time come into the full enjoyment of his pension or that a clarification of questions connected therewith — in particular if this has to be undertaken by his survivors — will be made much more difficult after the expiration of a considerable period of time. It should also be borne in mind that, according to the result of the clarification sought, the applicant might make other arrangements, such as additional insurance for old age — which cannot be done only when retirement begins — or arrangements to put an end to her administrative status at some appropriate time before the expiration of 10 years so as to arrange for the payment of a severance grant. In this respect it seems to me, having regard to Staff Regulations which lack any definition of the concept of an ‘interest in the protection of legal rights’ that it would be unjustified to speak only of an irrelevant and indirect interest. It is also to be noted that other legal systems do not have such a narrow definition of this concept as is applied by French law. In this respect I refer to German law according to which by way of exception precautionary applications for a declaratory judgment are possible without its being necessary to await the adoption of an administrative measure to be expected in the future (cf. Bundesverwaltungsgericht (Federal Administrative Court), judgment of 12 January 1967, Neue Juristische Wochenschrift 1967, p. 996). Indeed it is not easy to see why the legal protection granted under Community law should remain below this level. The application cannot therefore be designated as inadmissible on the ground that there is a lack of present interest in bringing an action. 2. Next the Commission contends that the application is also inadmissible because the statements of its administration in connexion with the question of the taking into account of the applicant's earlier periods of employment as regards the calculation of her pension are merely information about intended future behaviour, that is to say at the most preparatory acts but not acts adversely affecting an official within the meaning of Article 91 of the Staff Regulations. In fact, it is claimed, these statements had no immediate results in the sense of a definitive adverse effect; this would only arise with the fixing of the pension, for which the statements referred to represent merely one factor of several to be taken into account. I cannot share this view either. We must take as our basis the fact that the statements in question concern a legal situation existing at the present time, the right to future enjoyment of a pension, on which, as they influence its extent, they have immediate effects. It is even conceivable that constitutive effect might be attributed to a positive decision formulated in the sense of the application, which would naturally influence also the way in which the refusal of such a measure was to be regarded. Nor can it in any way be said that the letters to which reference has been made contain simply information about future conduct on the part of the administration which has no binding force. On the contrary we are dealing, as the wording makes clear, with quite categorical replies to very precise inquiries on the part of the applicant, of which she may justifiably assume that if she does not dispute them they may one day be held against her. Apart from this it must no doubt be conceded that the decisions of the administration of the Commission may be regarded as regards the fixing of her pension in a certain sense as preparatory acts. However, I would take the view that because of their independent legal content — only clear and precisely defined questions of law are concerned — and furthermore because of the considerable distance in time from the future act with which they are connected and not least because of the applicant's strong interest in a clarification now of these problems, such decisions can certainly not be compared with preparatory acts such as those already dealt with in the case-law (as for example in Case 11/64 — Kurt Weigbardt v Commission of the EAEC, judgment of 7 April 1965, [1965] ECR 285, in which measures in the context of an integration procedure under Article 102 of the Staff Regulations were designated not as acts adversely affecting an official but only as measures preparatory to a decision which could not be independently contested). For the above reasons the legal nature of the measures which are here in dispute also provides no grounds for denying the admissibility of the application. 3. We must also inquire whether the admissibility of the application may be contested on the ground that the applicant did not lodge her application in due time having regard to the prescribed periods for bringing an action before the Court. In this respect no problems arise if one starts from the decision of the Director of Personnel on 30 June 1977. For a complaint against that decision was lodged in proper time within the period of three months, on 20 July 1977, and the application itself, lodged on 17 February 1978, was obviously not out of time, calculated from the date of the implied decision rejecting her complaint, which is deemed to have taken place on the expiration of four months. However, the Commission doubts whether the complaint, which is a necessary precondition under Article 91 of the Staff Regulations to the lodging of an application to the Court, was lodged at the right time or whether the applicant should not have undertaken this step at an earlier date. Under the system for the protection of legal rights instituted by the Staff Regulations the administration had to be approached by the applicant on the question of the taking into account of earlier periods of service for the calculation of her pension, and the Commission takes the view that the decisive point of departure is the letter to the Head of the Individual Rights and Privileges Division on 13 August 1976, in which mention was made for the first time of the necessity of assimilating the periods in which the applicant was employed as an expert or as a member of the auxiliary staff to periods of service performed by members of the temporary staff. That, it is claimed, is to be regarded as a request in accordance with Article 90 of the Staff Regulations. To this the applicant received in a note of 14 September 1976 an express decision to part of the problem; the rest of her request — which related to the period as an expert — must on the contrary be regarded as having been refused by an implied decision after the expiration of four months from the lodging of the request, that is on 13 December 1976. The submission is accordingly that the period for lodging a complaint began to run on 14 September or 13 December 1976 as the case may be and calculated from that point the lodging of the complaint on 20 July 1977 must in any event be regarded as out of time. On the other hand the express reply of 30 June 1977 on the question of the treatment of the period as an expert has no independent significance. On the contrary having regard to the implied refusal already deemed to have been made to the request in question it is to be treated purely as a confirmatory measure which could not start the period for the lodging of a complaint to start to run afresh. But if the complaint must be regarded as having been lodged out of time and thus as inadmissible the same is necessarily true for the application to the Court, lodged on 17 February 1978, which was dependent on it. The applicant on the other hand takes the view that her letter of 13 August 1976 cannot be regarded as a formal request within the meaning of Article 90 of the Staff Regulations as it was not addressed to the appointing authority and it was not made in accordance with the procedure laid down for such a request in a circular of the Commission of 1 October 1974 — reference to Article 90 of the Staff Regulations, use of a special form and registration by the Secretariat General of the Commission. Secondly she claims that it is important that the administration in a note of September 1976 gave a reply to only a part of the problem and with regard to the period she spent as an expert the administration declared that that problem was still being examined. A reply to the question which had been left open was only given on 30 June 1977 after a reminder from the applicant in March 1977. It is the former date therefore which must be regarded as decisive, not least because the letter of 30 June 1977 formed a single entity with the letter of September 1976 and must be regarded as such. In deciding this dispute it is important whether one is inclined to a formalistic point of view or not. In my view a severely formalistic view to the disadvantage of an applicant is justified at most in cases in which the interests of third parties are also involved, for which reason — and here the point of view of legal certainty plays a part — in particular care must be taken that the periods specified are exactly observed. There can be no question of that however in the present case; for that reason on first principles I regard a liberal approach as being justifiable as far as concerns the question of the approach to the Commission, as regards the significance of a temporizing reply to such an approach and in particular as regards the necessity for a comprehensive assessment of several separate answers of the administration to a single request put forward by an employee. I feel justified in taking this view first on the basis of two judgments delivered on the question of a legally effective approach to the administration by an employee. Thus in Joined Cases 22 and 23/60 (Raymond Elz v High Authority of the ECSC, judgment of 13 July 1961, [1961] ECR 181) it was made clear that a binding application to the administration is present only if it is made sufficiently clear that it is intended to set in progress periods for the lodging of an application. Similarly in Case 31/72 (Domenico Angelini v European Parliament, judgment of 4 April 1973, [1973] ECR 403) a letter which was intended to draw the attention of the administration to alleged claims by the applicant was not regarded as a request within the meaning of Article 90 of the Staff Regulations although it had already been preceded by other steps and in it attention was expressly drawn to the fact that an unfavourable decision would oblige the applicant to take other steps. Secondly a comparatively liberal viewpoint is justified by the recognition that the cases dealt with in the case-law of irrelevant and temporizing answers concerned exclusively cases in which that type of answer had been given to formal complaints (Case 24/69 — Theo Nebe v Commission, judgment of 14 April 1970, [1970] ECR 145, — and Case 79/70 — Helmut Müllers v Social and Economic Committee of the EEC and EAEC, judgment of 7 July 1971, [1971] ECR 689). From that point of view however the letter of August 1976 in which the applicant for the first time made her approach to the administration which forms the subject-matter of these proceedings, is not yet to be regarded as a request within the meaning of Article 90 of the Staff Regulations; it is true that such a request may on the other hand be seen in the reminder of March 1977 and calculated from that time the periods have been observed. Furthermore the note of 14 September 1976, which did not deal exhaustively with her inquiry, did not yet provide the applicant with any cause to react with a complaint; on the other hand this note must rather be regarded as forming a single entity with that of 30 June 1977 which contained the remainder of the answer which she had been led to expect, so that it was only after that point that the lodging of a complaint could be contemplated. If this viewpoint is accepted it is clearly wrong to speak of the application's having been made out of time and therefore to regard it as inadmissible. 4. Finally the Commission objects to the fact that the application contains a request for a declaration; it further complains that the application is defective inasmuch as it speaks only of annulment of the implied rejection of the complaint and that the acts adversely affecting the applicant which are really at issue, namely the notes of 14 September 1976 and 30 June 1977 have not been mentioned. In my view these objections are also unfounded. It is true that in the judgment in Case 32/68 (Giuseppe Grasselli v Commission, judgment of 10 December 1969, [1969] ECR 505) it was emphasized that in staff cases the Court of Justice could not give a declaratory ruling. However, that was in a case in which the measure contested was simply to be regarded as information and the application for its annulment had therefore to be regarded as inadmissible. My view is that in a case like the present, even if the system of protection of legal rights under the Staff Regulations does not expressly provide for applications for declaratory rulings, there is no objection to the Court's making declarations which are necessary in conjunction with the annulment of a contested measure, not only in the statement of the reasons on which the judgment is based but also in the operative part of the judgment itself. However, even if this opinion were not to be followed, this would certainly not have as a consequence the inadmissibility of the application as a whole but it would simply give grounds for a logical re-interpretation of the claim in question as the request which it embodies is certainly not withdrawn from the purview of the Court. With regard to the Commission's second objection my view is that the measures contested by the applicant are clearly enough defined by the reference to the complaint and its content. In the event of the annulment of the rejection of the complaint the Commission is naturally under a duty to draw from it the logical conclusions as regards the measures referred to in the complaint. From the applicant's point of view this appears in fact to be sufficient. Finally I should also like to refer to the fact that in the oral procedure the applicant expressly declared that if necessary she would reformulate her application for annulment so as to include both the decisions referred to. If this should be regarded as necessary — and in my opinion it is not — the declaration in the oral procedure could certainly be accepted, since in essentials this would not be an amendment of the application but at the most a clarification and reinterpretation of claims already contained in the application. II — Substance The substance of the action concerns the question whether the applicant's periods of employment as an expert or as a member of the auxiliary staff are to be taken into acount in calculating the amount of her pension. In the applicant's view this should be accepted on three grounds. 1. First of all there is her argument that the contracts to which she refers were in fact, despite the name given to them at that time by the parties, to be regarded, on the basis of objective data, as contracts for the employment of temporary staff within the meaning of Article 2 of the Conditions of Employment of Other Servants. Even during the time of her employment as an expert the applicant was in a relationship of subordination to the Commission and had acted exclusively for the Commission. Furthermore she always carried out the same duties, which previously had not been undertaken by anybody, and therefore in particular she did not replace an official or other employee who was for the time being unable to perform his duties. Finally, at least since 1963 the detailed list of posts applicable to her department showed a permanent post the duties of which corresponded to those of the applicant. With regard to this submission it is necessary to clarify first of all the preliminary question whether the applicant was actually employed as an expert with exactly defined individual tasks or whether in fact she was engaged as an employee, that is to say merely had to carry out tasks of a specified nature and thus stood in a relationship of subordination to the Commission. In this respect the Commission has indicated that experts' contracts contained no provision with regard to the type of duties and their performance and that certain powers of assignment not implying any subordination within the sense of the law of employer and employee, were also to be found in other than the ordinary contracts of employment. On the other hand I have no serious doubt that from 1961 onwards the applicant in spite of the denomination of her contracts as contracts for the employment of an expert stood in a regular relationship of employment to the Communities so that the Commission must for this period arrange retroactively for social insurance protection with the national institutions, and this it has declared itself ready to do To reach this conclusion it is sufficient to refer to notes of the applicant's superiors which are annexed to the application as Annexes 25, 30 and 33. In them there is reference to the enduring character of the applicant's duties, to the fact that she had been performing them for nine years and in particular also to the fact that since 1961 efforts had been made to regularize her situation, which can only mean that the express designation of her conactual relationship did not coincide with reality. Admittedly this is not decisive as regards the applicant's actual claim, for a correction of the designation of the contracts as an expert does not necessarily mean that they are to be regarded as contracts for the employment of temporary staff; they might just as well be regarded as contracts for the employment of auxiliary staff. In the further investigation of the question which of the two designations is in fact the appropriate one, one must agree with the Commission at least in so far as it regards designation of the contract as a temporary one as being excluded for the year 1961 because the Conditions of Employment of Other Servants, which provide for contracts of that type, and the Staff Regulations of Officials came into force only on 1 January 1962. The applicant could therefore be a member of the temporary staff at the most only from 1962 onwards. There is the further point that for the whole of the period under consideration here, contrary to the views of the applicant, the designation of her services does not depend only on the performance of the same duties over a considerable period; what is important instead for the full recognition of her administrative status as that of a member of the temporary staff within the meaning of Article 2 of the Conditions of Employment is that in the detailed list of posts for the department in question there should be a permanent post with the relevant duties and secondly that there should be an express assignment to such a post by the competent employer. In this respect the Commission has rightly referred to the definitions contained in Articles 2 and 3 of the Conditions of Service, which run as follows : ‘For the purposes of these Conditions of Employment “temporary staff” means: … (b) staff engaged to fill temporarily a permanent post included in the lists of posts appended to the section of the budget relating to each institution’ (Article 2); and ‘For the purposes of these Conditions of Employment, “auxiliary staff” means: (a) staff engaged, within the limits set in Article 52, for the purpose of full-time or part-time duties in an institution but not assigned to a post included in the list of posts appended to the section of the budget relating to that institution” (Article 3). Furthermore the relevant case-law in this question is quite unambiguous. I would recall only the judgment in Case 18/63 — Wollast née Schmitz v Commission of the EEC, judgment of 19 March 1964, [1964] ECR 85 — which concerned the integration of the applicant as an official after the coming into force of the Staff Regulations of Officials, the judgment in Case 5/76 — Heinz Günther Jänsch v Commission, judgment of the Court of 15 June 1976, [1976] ECR 1027 — where the dispute concerned exceptions from the competition procedure for officials within the meaning of Article 92, or judgments concerning claims to higher grading having regard to actual performance of duties of a higher grade (as for example in the judgment in Case 189/73 — Gijsbertus van Reenen v Commission, judgment of 19 March 1975, [1975] ECR 445). If these judgments are to be followed — and they must be if budgetary powers and prerogatives which are reserved to the appointing authority are not to be undermined — it does in fact emerge that the applicant's contracts under discussion here cannot be regarded as contracts for the employment of temporary staff within the meaning of Article 2 of the Conditions of Employment. This is certainly true for the first years of her employment in which no corresponding post was available. Whether this applied until the beginning of 1963 or the beginning of 1964 was disputed at the hearing. In my view, however, the Commission has shown that only the latter date can be correct. A decision of the administrator of the Information Office regarding the use of a post assigned to him in January 1963 was not sufficient; what was still required was the approval of the detailed list of posts so determined by the Committee of four presidents which — as may be seen from a note of 13 September 1963 (Annex 25 to the application) — had not been given by the end of 1963. A note of the applicant's superior officer of 24 October 1968 (Annex 30 to the application) was expressed moreover in this sense, mention being made of the fact that until the beginning of 1964 there had been in the detailed list of posts for the Information Office no post corresponding to the duties of the applicant. But even for the remainder of the period under consideration here the contractual position of the applicant cannot be regarded as that of a member of the temporary staff. Thus in January 1964 the permanent post in question was the subject of a competition within the ECSC, in August 1964 of an. inter-institutional competition and in January 1965 of an open competition. During the course of these procedures the post was unoccupied; in particular it was not temporarily assigned to the applicant — which would have been possible — but on the contrary the Commission, having regard to this competition, expressly concluded with the applicant (see Annex I to the reply) a contract as a member of the auxiliary staff for a fixed period. The applicant also took part in the competition; in April 1965 she was placed first on the list of suitable candidates. Nevertheless at the end of 1965 the post was occupied by another candidate, who was just below the applicant in the list of suitable candidates. From then on there was for the time being no permanent post for the duties of the applicant in the Information Office. Such a post became available again only from 1 January 1969 on the basis of a temporary transfer by the Directorate General for Agriculture (see Annex 33 to the application), and from then on the applicant did in fact have a temporary post within the meaning of Article 2 of the Conditions of Employment until 31 December 1971. When the post in question subsequently had to be given back to the Directorate General for Agriculture there was then again a lack of a suitable permanent post for the applicant in the Information Office and therefore she was once again engaged as a member of the auxiliary staff for eleven months, as has already been mentioned. In view of this stage of affairs it may be stated that, partly on budgetary grounds, but also with regard to the rules of the Conditions of Employment of Other Servants, it is not possible to accept that the applicant was in fact, from 1 January 1961 until her appointment as a probationary official, in the position of a member of the temporary staff within the meaning of Article 2 of the Conditions of Employment. 2. In the second place the applicant claims that the Commission was guilty of a wrongful act or omission in determining the nature of her contract of employment. They wrongly treated the applicant as an expert; with regard to the contracts for appointment as a member of the auxiliary staff it must be objected that they applied for more than one year and that this arrangement was selected again after the applicant had already been employed for three years as a member of the temporary staff. She claims that this represents an infringement of Article 52 of the Conditions of Employment as well as of the duty to assist employees to which reference is made in Article 54 of the Conditions of Employment by reference to Article 24 of the Staff Regulations of Officials. The applicant in this way suffered damage because the relevant periods were not taken into account for the calculation of her pension. She claims that for this the most appropriate compensation would be as it were in kind, that is to say by the periods in question being treated in the same way as periods of employment of temporary staff. As regards this attempt to justify the applicant's claim it must be admitted without further ado that the Commission has behaved unlawfully at certain times and in certain respects — which is the first if not the only precondition for an action to establish liability on the part of the administration. This is true inasmuch as a contract was concluded with the applicant as an expert although in fact there arose a regular relationship of employment. It is true also inasmuch as the contracts for an appointment as a member of the auxiliary staff exceeded the permissible period of one year (Article 52 (b) of the Conditions of Employment). It must of course be borne in mind that the Conditions of Employment came into force only on 1 January 1962 so that it is only possible to speak of the illegality in question from 1 January 1963. On the other hand I should not like to assume that there was a similar illegality also for the period after the expiration of the employment as a member of the temporary staff. At that time the contract as a member of the auxiliary staff applied only for a period of eleven months; furthermore in my view it is not possible to deduce from Community law a prohibition on concluding a further contract as a member of the auxiliary staff after the expiration of employment as a member of the temporary staff. However, for this period at least, that is to say for the year 1972, it must be stated that there has been a breach of duty to assist an employee because the Commission was not sufficiently concerned to secure an alteration in the status of the applicant in a manner which would be satisfactory as regards her claims to pension. Over and above this it may in my view also be accepted that there was a breach of this duty for an essentially earlier period because the intention was formed at a very early date to employ the applicant permanently — I refer in this respect to Annexes 25 and 30 of the application — because her suitability for establishment as an official was already clear after her participation in the competition in 1965 and because the Commission obviously — as became fully clear in the oral procedure — undertook the filling of the post on the basis of the competition in question in a manner which is open to objection since the candidate who was appointed was not assigned to the duties mentioned in the competition, which are identical with those of the applicant, but a very short time later was assigned to other duties. However, as I have already stated, the fact that provisions of law have been infringed is not sufficient. It must further be established that the damage alleged has resulted directly therefrom, that is to say that there was a possibility to produce by other means, a situation according to which it would have been permissible to take the years of service into account for the calculation of pension; furthermore it must be possible to speak of negligence. According to the explanations already given the decisive question is whether there was in existence a permanent post which could be used for the applicant or whether such a post could and should have been created. If this was not the case then in any event the finding that the applicant was wrongly employed on the basis of a contract as expert, means that for that period she must be regarded as a member of the auxiliary staff; the other finding, that contracts as a member of the auxiliary staff were concluded for a period exceeding one year in contravention of Article 52 (b) of the Conditions of Employment, would then have the consequence that the relationship of employment ought to have been ended at the latest on 1 January 1963. With regard to this important question it must be noted first that before the beginning of 1964 there was in existence no permanent post with the duties of the applicant in the Information Office. Nor has any evidence been given for this period which would justify the assumption that the provision of such a post would have been possible and appropriate. However, it must not be forgotten that we are here dealing with the exercise of the right of an authority to set up its own organization, in which connexion a wide discretion is available. In my view there is not the slightest indication that, as regards the distribution of the posts which at the beginning were in short supply, this discretion was wrongfully exercised. However, a post was available from the beginning of 1964 until the decision as to how it was to be occupied, and, as has been shown, such a decision was adopted at the end of 1965 in a manner which was open to objection. At least for this period it would have been possible to avoid an illegality to the disadvantage of the applicant by her temporary assignment to this post. Moreover it is impossible to see any logical reason why this was not done such as would provide a justification for denying the existence of a wrongful act or omission, as the carrying out of the competition would certainly not have been impeded by an assignment of this post for an indefinite period, terminable at the proper time, to the applicant. For the subsequent period there was then no longer any post available apart from the years 1969 to 1971, for which it was possible for a post to be “borrowed” from the Directorate General for Agriculture and this was in fact used for the applicant. For this period however, that is to say for 1966, 1967 and 1968 and 1972, simply to adopt the same conclusion as for the period before 1964 does not seem to me to carry conviction. The problem of the satisfactory settlement of the applicant's administrative status had become especially urgent at the latest from the middle of the sixties. This and the fact that for the years 1969 to 1971 it was possible for a post to be provisionally provided, might rather justify the conclusion that a corresponding solution ought to have been sought for the years 1966 to 1968 and for 1972 and that in such a large organization this ought to have been possible for the Commission. However, if this conclusion is not regarded as justifiable in the present state of our knowledge, it would presumably be appropriate to obtain a further clarification of the question of the availability of posts in other departments of the Commission, unless an appropriate and equally valid solution is to be found by means of considerations which play a part in the framework of the third submission which still remains to be investigated. In so far as the preconditions for a claim to establish liability on the part of the administration are obviously present — that is to say for the period from the beginning of 1964 to the end of 1965 — it still remains to consider two objections of the Commission before it can be acknowledged that for the period in question in relation to the calculation of her pension the applicant has a claim to restitutio in integrum. These objections relate to the question of the applicant's contributory fault, and to the fact that we are not dealing with present and certain damage but at the most with future hypothetical damage, for proving which there are strict requirements according to the case-law of the Court. In my view these points need not detain us long. On the one hand I am convinced that we can hardly speak of any relevant contributory fault on the part of the applicant arising from the fact that she assented to an extension of her contracts as a member of the auxiliary staff in excess of one year and did not exert herself to secure a regularization of her position by applying for other posts for which the competitions were held. In this respect in is sufficient to refer to the fact that there was an unreserved desire to keep the applicant because of her services and because the duties which she performed were regarded as important; in this respect the constant attempts to regularize her position and the repeated promises to do so are also of significance. In this connexion I refer to the notes of her superiors which have been laid before the Court as Annexes 25, 30 and 33 to the application. On the other hand as regards the problem of future damage which will only be realized when she enters upon her retirement I would take the view that it is sufficently foreseeable within the meaning of the case-law referred to by the Commission. Furthermore it is not irrelevant in respect of the already existing and continually increasing right of future enjoyment to speak of existing and not merely hypothetical damage for which compensation may be awarded now even if this does not mean the acknowledgment of a present financial entitlement. Thus, in so far as the application is based on a breach of official duty it may be recorded that at least for part of the period in question, namely for the years 1964 and 1965, it is in any case well founded and that the Commission is therefore required to take at least that period into account for the calculation of pension. 3. Finally the applicant bases her claim also upon the principles of equity, equality of treatment, justice and good administration, which are breached by the refusal of the Commission to equate the periods in which the applicant was employed as an expert or as a member of the auxiliary staff with periods of employment under Article 2 of the Conditions of Employment or in any event for the calculation of pension. The applicant claims that as she actually served without interruption from 1961 to 1972 in a similar capacity to an official and as there had been from the beginning an intention to employ her permanently it must appear in the highest degree unjust not to take this into account in the pension. In addition it is of interest that in the case of another employee the procedure adopted was in accordance with her argument and that after his appointment as an official the time which he had spent as an expert working for the Community was recognized as capable of being taken into account for pension purposes. Against this the Commission has claimed that it is not possible to approve, by reference to principles of natural justice, a solution which is not in accordance with positive law. It states in particular that this would conflict with case-law (Case 54/70 — Luigi Landra v Commission of the European Communities — judgment of 1 April 1971, [1971] ECR 311) in accordance with which in the calculation of years of pensionable service in accordance with Article 3 (c) of Annex VIII to the Staff Regulations periods of service as a member of the auxiliary staff cannot be taken into account. The Commission states that it should also be borne in mind that with the solution contended for by the applicant periods would be recognized as reckonable for pension purposes for which contributions had not been paid in accordance with Article 3 of Annex VIII to the Staff Regulations and that for these periods there would then be various claims to entitlement to an old-age pension. With regard to the case cited by the applicant of another employee for whom such a treatment was made available the Commission thinks that finally it should not be overlooked that that case was different inasmuch as there an appointment as official followed immediately after the period of employment as an expert. With regard to this contest it must certainly be admitted that it naturally appears extremely problematical to justify by reference to the principles which have been mentioned a solution which according to the wording of the provisions applicable is excluded. However, in consideration of the fact that the written law of official employment, in spite of all its nuances, does not contain an exactly appropriate solution for every situation, I do not regard such an attempt a priori as inadmissible. It is true that extreme caution and reserve are required. Such a procedure can really only be contemplated in extremely exceptional cases in which, when all the circumstances are taken into account, a purely legalistic result would obviously be unjust. In addition care must naturally be taken to ensure that the requirements of the written law are affected as little as possible. In the present case it is significant that the applicant, obviously on organizational and budgetary grounds, was left in a precarious situation for an unreasonably long period of time. It was clear at a very early stage — as has been shown — that she was to be permanently employed and it is incontestable that she performed duties of importance to the Communities. It is also acknowledged that the applicant took part in a competition for a post corresponding to her duties, that she emerged as top of the list, but that the post which was the subject of the competition was not assigned to her but — as was grossly incorrect — to another candidate and subject to a change of duties. Last but not least, it should be borne in mind that the applicant is not asking for a retroactive change in her status with all the consequences involved but merely raising the question of the calculation of her pension. In this situation there should be no hesitation to regard her claim for equal treatment in principle as well founded. I regard this as justified at any rate from the period in which it was regarded as proved by her successful participation in a competition that sne could be appointed to a post as an official. It would be difficult to justify more farreaching results in favour of the applicant on the other hand by reference to the principles in question here — although what has been said with regard to the claim to establish liability on the part of the administration naturally remains true. It would therefore hardly be justifiable to declare the recommended partial settlement as permissible with effect from 1963 — and in any case exception cannot be taken to the manner in which her administrative status was settled up to the end of 1962. In this respect too the case of another expert quoted by the applicant can hardly be of assistance, for not only does it show the unusual feature that an appointment as official followed immediately after the period of employment as an expert but also the retroactive regularization covered a period of only roughly two and a half years. Over and above that it also seems necessary to me — and this relates to the taking into account of the requirements of written law — to take care that no unjustifiable advantages are conferred on the applicant as a result of the retroactive equality of treatment for which she contends. However, in this respect no problems should arise since the applicant has expressly declared herself ready to make back payment of contributions for the periods in question on the basis of the payments to be made by officials and temporary employees and to assign to the Community any claims which she may have as against the Belgian social insurance which she has earned as a member of the auxiliary staff. If effect is given to all this — and naturally the judgment quoted by the Commission in Case 54/70 is not affected — the result would be that the applicant has a claim for equal treatment not only in relation to the period in which an unoccupied post corresponding to her duties was available in the Information Office but over and above that for the subsequent period (1966 to 1968 and eleven months in 1972), for which there was no such post and for which it is not absolutely certain whether in that respect it is possible to speak of a wrongful act or omission. 4. Thus it may be stated that the refusal of the Commission to recognize the periods of service performed by the applicant as an expert or as a member of the auxiliary staff for the calculation of her pension is unlawful in so far as it concerns the period from the beginning of 1964. On this understanding and taking into account the necessity to make back payments of contributions and to avoid the applicant's being entitled to claim for the period in question both payments from the Belgian social insurance and payments of pension under Community law, the statements made by the administration of the Commission referred to in the applicant's complaint should be annulled. As regards the costs of the action, as in my view the applicant has to a considerable extent won her case, I should regard it as appropriate to order the Commission to pay two thirds of her costs. ( ) Translated from the German.

Ms D. Gill : The claimant challenges the lawfulness of a decision of the defendant of 9 August 2013 to certify his asylum and human rights claims as clearly unfounded under s.94(2) of the Nationality, Immigration and Asylum Act 2002 (the "2002 Act"). The effect of the certification (if upheld) is that the claimant may only bring an appeal against the defendant's decision of the same date and contained in the same notice, to refuse to vary his leave to remain and to remove him from the United Kingdom, after he has left the United Kingdom. The outcome of the claimant's case on the certification issue will determine the lawfulness of directions issued for the claimant's removal from the United Kingdom. Although the original grounds challenged the certification of the human rights claim in terms which included a challenge to the certification of the claimant's article 8 claim, the grounds in support thereof were very limited and did not raise any of the legal arguments Mr Rees sought to raise at the hearing and that were based on MF (Nigeria) v SSHD [2013] EWCA Civ 1192, R (Nagre) v. SSHD [2013] EWHC 720 (Admin) and MM (Lebanon) and Others v. SSHD [2014] EWCA Civ 985. As a consequence, significant amendment of the original grounds would have been necessary. No application to amend the grounds was made at any point, nor was any prior notice given of any proposed grounds. Mr. Rees did not seek to pursue the challenge to the certification of the article 8 claim advanced in the original grounds. The case therefore proceeded as a challenge limited to the two issues specifically mentioned in the grant of permission, i.e. whether the defendant had adequately considered the issue of sufficiency of protection and internal relocation against the background of the specific threat to the claimant given that the threat to the claimant had not been disputed or questioned by the defendant. Whilst these issues primarily concern the asylum claim, they are also relevant to the claimant's Article 3 claim, as this was based on the same factual matrix. Immigration history The claimant is a national of Pakistan, born on 1 April 1991. He entered the United Kingdom on 10 October 2011 with a Tier 4 student visa valid until 12 November 2013. In March 2013, he stopped attending college. On 18 April 2013, the defendant decided to curtail his leave so as to end on 17 June 2013. On 11 June 2013, he contacted the Asylum Screening Unit to make an appointment to lodge an asylum claim. He lodged his asylum claim on 24 June 2013. Basis of asylum claim The decision to certify was based on the claimant's evidence given at his screening interview of 24 June 2013 ("SIR") (C54-C70), his asylum interview of 15 July 2013 ("AIR") (C162-C191) and documentary evidence at C76-C161 (the documents at C192-C270, which were before the defendant, concerned the article 8 claim). The evidence that was before the defendant may be summarised as follows: The claimant and his family lived in Nowshera. His father was the chairman of the Awami National Party (ANP) for the Nowshera district and a former "Nazim" (mayor) of the Nowshera town. On 21 December 2012 (i.e. after the claimant's arrival in the United Kingdom as a student), his father was shot by unknown gunmen and seriously injured. His father was taken to a hospital where he received treatment. Following the shooting, the police began an investigation. The investigations were continuing as at the date of the asylum interview. At the end of January 2013, his father was discharged from hospital. He returned home to convalesce. In May 2013, his father received a threatening letter saying that he was lucky to have survived the attack, that he would not escape in the future and that the claimant and his siblings would be also be targeted "if come across". The claimant said that he did not know who had attacked his father. He did not know who had sent the threatening letter. However, he suspected that those responsible may have been either political opponents of his father or his maternal uncles who had fallen out with his father over a business deal in the past (AIR, qns 12-14, 45, 48-57, 78 and 81). The claimant's family told him about the threatening letter. They told him that it was not safe for him to return to Pakistan. He feared that, if he returned to Pakistan, he would be killed by the same people who had attacked his father. As his father was unable to work, he could not afford to pay his tuition fees. His college would not extend the time for him to pay his fees beyond March 2013 (qns 42-44 on C178-C179). In March 2013, he stopped attending college. The defendant's assessment and the certification decision As to sufficiency of protection, the defendant referred to the test explained in Horvath v. SSHD [2000] UKHL 37. She then cited at length various passages from a Country of Origin Information report ("COIR") for Pakistan dated 7 December 2012 (the "2012 COIR"). These included passages concerning how the police force in Pakistan is organised; that police effectiveness varied greatly by district, ranging from reasonably good to ineffective (top of page 4); and that the police in Pakistan are perceived to be corrupt as a matter of course and thought to be largely, if not solely, responsible for the breakdown of law and order in the country. The defendant concluded that the evidence showed that there was an established police force within Pakistan. The defendant took the view that, as the police force had an established hierarchy, there was a structured approach available to the claimant if he were to experience problems on his return to Pakistan (para 14 of the decision letter). She then set out passages from the 2012 COIR concerning the avenues for bringing complaints against the police in Pakistan. At para 15 of the decision letter, she concluded that acts of corruption, bribery and violations of human rights by police officers in Pakistan arose from failures of discipline and supervision and that those found guilty of such offences are held accountable for their actions. She considered that such behaviour was not a concerted policy on the part of Pakistan's government and was not condoned by the government. She considered that there were avenues of complaint available to the claimant if he were unsatisfied with the response of the police. At para 16 of the decision letter, the defendant noted that the police in Pakistan were investigating the attack on the claimant's father and that the claimant's own evidence demonstrated that there was a functioning police force that was willing and able to help him upon his return to Pakistan. The defendant noted that the claimant had stated that he did not know who had shot his father and sent the threatening letter but that he suspected that it could be either political opponents of his father or his maternal uncles who did not get on with his father. However, the defendant considered that the claimant had not demonstrated that either of these agents had significant power or influence in Pakistan given that his father had been able to remain at his home since his discharge from hospital in January 2013 without experiencing any further physical harm. The defendant thus concluded that there was a sufficiency of protection available to the claimant in Pakistan and that he had not demonstrated a sustained and systemic failure of state protection in Pakistan. With regard to AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC), the defendant did not accept that the claimant required protection above the level that the Pakistani authorities were able to provide. As to internal relocation, the defendant quoted at para 19 of the decision letter from the 2012 COIR at length. She concluded that Pakistan was a large, highly populated country where citizens could freely move. She concluded that, if the claimant experienced problems on return to Pakistan or if he wished to avoid problems in his home area of Nowshera, he could relocate to another area of Pakistan such as Karachi or Hyderabad which were 878 and 775 miles respectively away from Nowshera and had populations of approximately 11.6 million and 1.15 million people respectively. At his asylum interview (qn 78), the claimant had stated that he could not relocate to Karachi because, if the attack on his father was politically motivated, there were "political people" all over the country. The defendant considered (para 21) that the claimant's suspicion that the attack on his father was politically motivated was pure speculation. In any event, even if the attack was politically motivated, she considered that the claimant had not shown that the people who had attacked his father had either the desire or the resources to locate him if he were to relocate to a big city such as Karachi or Hyderabad. At his interview (qn 79), the claimant had sated that he could not relocate to another part of Pakistan because he would be unable to leave his property and shops in Nowshera and live elsewhere in Pakistan. The defendant rejected that explanation (para 21), observing that the claimant was living in the United Kingdom away from his family's property. Given that the claimant was a well-educated, resourceful and healthy young man who was fluent in Urdu, Pashtu and English, the defendant did not accept that it would be unreasonable for the claimant to relocate to another area of Pakistan, such as Karachi or Hyderabad, to escape his localised problems. The "clearly unfounded test" The "clearly unfounded" test was considered by the Court of Appeal in ZL & VL v. SSHD & another [2003] EWCA Civ 25 in the context of the transitional provisions in section 115 of the 2002 Act which are in materially identical terms to s.94 of the 2002 Act. The Court considered the proper approach for the decision maker to take in determining whether a claim is clearly unfounded. At para 57, the Court of Appeal said that the decision maker will: "(i) consider the factual substance and detail of the claim (ii) consider how it stands with the known background data (iii) consider whether in the round it is capable of belief (iv) if not, consider whether some part of it is capable of belief (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not." In R (Bagdanavicius) v. SSHD [2003] EWCA Civ 1605, the clearly unfounded test was said to be whether the claim "is so lacking in substance that the appeal would be bound to fail". The onus rests on the person alleging that his removal from the United Kingdom would constitute a breach of the United Kingdom's obligations under the Refugee Convention or article 3, to show a real risk of persecution or substantial grounds for believing that he would face a real risk of being subjected to treatment contrary to article 3. The relevant legal principles as to sufficiency of protection and internal relocation The key case on the issue of sufficiency of protection is Horvath v. SSHD [2001] AC 489, where Lord Hope said (at page 500): "in order to satisfy the fear tests in a non-statute agent case, the applicant for refugee status must show that the persecution which he fears consists of acts of violence or ill-treatment against which the state is unable to unwilling the provide protection…" As to the level of protection required, Lord Hope said: "… the answer to it also is to be found in the principle of surrogacy. The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals…." Lord Clyde approved of the following formulation presented in the Court of Appeal in the same case: "… there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders." "… inefficiency and incompetence is not the same as unwillingness, that there may be various sound reasons why criminals may not be brought to justice, and that the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the state is unwilling to afford protection. "It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of a democracy." Mr Rees accepted that the country guidance cases of the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) (and its predecessors) establish that there is in general a sufficiency of state protection in Pakistan. As at the date of the defendant's decision in the instant case, the most recent of UTIAC's cases which considered the country evidence was AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC). Although AW was not specifically designated by UTIAC as a country guidance case, UTIAC considered the question whether there was systemic insufficiency of state protection in Pakistan. At para 34, the Tribunal (Lord Bannatyne and Senior Immigration Judge Storey) had regard to the case of AH (sufficiency of protection – Sunni Extremists) Pakistan CG [2002] UKIAT 05862) and KA and Others (Domestic Violence – Risk on Return) Pakistan CG [2010] UKUT 216 (IAC) and concluded that it could not be said that general insufficiency of state protection in Pakistan had been established. Mr Rees accepted that the general conclusion in AW applied and that there was in general a sufficiency of protection in Pakistan. AW is an example of a case in which the claimant succeeded in showing that was insufficient protection in his particular circumstances notwithstanding that there was systemic sufficiency of state protection. The Tribunal's reasons for reaching the conclusion that the authorities in Pakistan would be unlikely to provide the appellant in that case with the additional protection which he required in his particular circumstances were set out at paras 38 and 39 of the determination. As to internal relocation, the question is whether it would be unduly harsh to expect a person to move to a part of the country where he would be safe, with sufficient protection, and which he could reach safely and without undue hardship: Robinson v. SSHD [1998] QB 929. In deciding whether an internal relocation option is unduly harsh, the comparison is between the claimant's circumstances in his or her home area and the proposed place of relocation and not between conditions in the country of asylum and the proposed alternative location in the home country: Januzi v SSHD [2006] UKHL 5. I turn now to deal with the claimant's case on the defendant's assessment of the issues of sufficiency of protection and the internal flight alternative The claimant's case and my assessment of it It is said that the defendant had erred in failing to place "proper weight" on the COIR on Pakistan dated 9 August 2013 (the "2013 COIR"). The grounds quote at length from paras 8.6.1, 8.6.2, 9.05, 9.06, 9.12, 9.63, 15.17, 15.18, 15.20, 15.24 and 15.27 of the 2013 COIR. As the 2013 COIR was released only on the date of the decision letter, it was not referred to by the decision maker. However, Mr Harland accepted that, in relation to sufficiency of protection and internal flight, there were no material differences between the 2012 COIR and 2013 COIR. He was therefore content for me to consider the 2013 COIR. Mr Rees did not point to any material differences between the 2012 COIR and the 2013 COIR. The decision letter specifically quotes paras 9.05, 9.06, 9.12 and 9.63 of the 2012 COIR which were in the same terms of the same paragraphs in the 2013 COIR, as well as several other paragraphs from section 9 and section 18 of the report before the conclusion was reached that, although there was corruption, bribery and violations of human rights by police officers in Pakistan, these arise from failures of discipline and that there was in general systemic sufficiency of protection. That conclusion cannot be faulted, given the conclusion in AW and the acceptance by Mr Rees that the conclusion in AW, that there was in general a sufficiency of protection in Pakistan, applies. Mr Rees submitted that there was insufficient protection for the claimant in his particular circumstances. He relied upon three such factors: the fact that the claimant's father had a prominent position in politics; that his father's political party was the ANP and that a letter threatening the claimant and his siblings had been received. In original grounds, reliance was placed on the evidence of politically motivated violence (for example, at paras 8.6.1, 8.6.2, 9.05, 9.06, 9.12, 9.63, 15.17, 15.18, 15.20, 15.24 and 15.27 of the 2013 COIR) for the proposition that such evidence of politically motivated clashes between the Muttahida Qaumi Movement (MQM), Pakistan Peoples Party (PPP) and ANP parties, when taken together with the fact that claimant's father was a high profile political leader in Pakistan, means that it was plausible not only that the shooting incident was a politically motivated attack but also that the gunmen would have the ability and resources to locate the claimant wherever he were to return in Pakistan. However, reliance upon the assertion that there was a political motive behind the shooting incident and threatening letter ignores the fact that the evidence before the decision maker was that the claimant and his family had not had any problems in Pakistan before the shooting incident, notwithstanding the political background and activities of his father. Furthermore, the claimant's own evidence was that he did not know who had carried out the attack on his father and sent the threatening letter. He said that he suspected that it was either political opponents or his maternal uncles who did not get on with his father after a business deal in the past had gone wrong. He did not know if the people who had shot his father still wanted to kill him (qn 46 of the AIR). He said that the police were investigating the shooting incident and the threatening letter (qns 21 and 85 of the AIR). He said that he expected that his family will know for certain who was responsible when the police investigations were complete (qn 84 of the AIR). At qn 50 of his AIR, he said that his sister had said that the problems may have occurred because ANP leaders are targeted before elections. Thus, although the claimant and his sister did suggest that there might have been a political motive, the claimant repeatedly said he did not know who was behind the shooting incident and the threatening letter. The claimant's family did not experience any problems in the period of more than six months between the shooting incident and the claimant's screening interview in June 2013 other than the receipt of the threatening letter in May 2013. Taken together with the fact that he and his family had not experienced any problems prior to the shooting incident notwithstanding his father's political activities, the decision maker was fully entitled to take the view (para 21 of the decision letter) that it was speculation to suggest that there was a political motive. The suggestion that there was such a political motive was bound to fail before the First-tier Tribunal (FtT). Similarly, any suggestion that there was no reasonable likelihood of the claimant being able to access sufficient protection in his home area was bound to fail before the FtT, given that his father had not only approached the local police for assistance; the police were actively investigating the shooting incident and the threatening letter and that his parents and siblings (including his younger brother who had also been threatened in the threatening letter) continued to live in their home. This is so notwithstanding the claimant's evidence that his paternal uncles had supported his family since the shooting incident which is why he said they could not be attacked (qn 47 of the AIR). The fact that his father and siblings had not sought to evade any threat to them by relocating at any time during the period of more than six months between the date of the shooting incident and the claimant's screening interview sheds light on the degree to which they felt protected as well as the likelihood of any risk to the claimant materialising in his home area. For all of these reasons, I am satisfied that, on any legitimate view of the evidence that was before the decision maker, the claimant's case, that was insufficient protection for him in his home area, had no more than fanciful prospect of succeeding before the FtT. Further, and in any event, the claimant's assertion, that he could not safely relocate, was wholly without foundation on the evidence that was before the decision maker. The original grounds contended that the ability of his father's attackers to trace him in Pakistan is linked to his father's political prominence considered against the background material. The claimant has not explained how the ability of the attackers to trace him in Pakistan is linked to his father's prominent position in politics in Nowshera. There was only one newspaper article before the decision maker (page 104). This reported the shooting incident. There was nothing to suggest that the article had appeared in the national newspapers or (even if it had) that the claimant's father was known nationally. More importantly, there was no explanation before the decision maker how or why the link between the prominence of his father's position in politics in Nowshera was linked to the ability of the attackers to trace the claimant if he were to relocate. For all of these reasons, I am satisfied that, on any legitimate view of the evidence that was before the decision maker, the claimant's case, that he could not relocate safely to another part of Pakistan, such as Karachi or Hyderabad, was wholly without foundation and bound to fail before the FtT. Similarly, the claimant's case, that he could not relocate without undue hardship, stood no prospect whatsoever of succeeding before the FtT on the evidence that was before the decision maker. His claim that he could to relocate to another part of Pakistan because he would be unable to leave his property and shops in Nowshera could not succeed, given that he was living in the United Kingdom away from his family's property in Nowshera and that the evidence he gave was that his family were still living in Nowshera. Furthermore, as the decision maker noted, the claimant was a well-educated, resourceful and healthy young man who was fluent in Urdu, Pashtu and English. Mr Rees took issue with the fact that the decision maker had not assessed the credibility of the claimant's account and had not made findings of fact. However, for the reasons given above for rejecting the challenge on the issues of sufficiency of protection and internal relocation, I agree with Mr Harland that any failure to assess credibility was immaterial. Insofar as the claimant relies upon evidence that was not before the decision maker and which has been submitted since the decision of 19 August 2013, such evidence cannot be relied upon to impugn the lawfulness of the decision. In this respect, I refer (for example) to the fact that the claimant has now produced a further witness statement and further documentary evidence. He has now given additional reasons for the animosity between his maternal uncles and his father, stating that there were political differences as well as the dispute about a financial deal in the past; that his maternal uncles have influence in Pakistan; that an uncle was killed in 2014; and that his father was only able to continue living in Nowshera by remaining indoors and having his brothers and security guards to protect him. Conclusion The defendant's decision of 9 August 2013 23 April 2013 to certify the claimant's asylum claim and human rights claims as clearly unfounded was lawful. Directions set for his removal from the United Kingdom are therefore lawful. The claim is therefore dismissed. The claimant may only pursue any appeal against the refusal to vary leave and decision to removal dated 9 August 2013 after he has left the United Kingdom.

Mr Justice Silber : On 7 May 1997 Larry Johnson ("the defendant") was convicted at the Central Criminal Court of murdering Stephen Poutney ("the deceased"). He was sentenced to life imprisonment. The trial Judge (His Honour Judge Richard Hawkins QC) considered that the length of detention necessary to meet the requirements of retribution and general deterrence was 17 years. On 4 June 1997 Lord Bingham CJ recommended a term of 16 to 17 years. On 19 November 1997, the Secretary of State for the Home Department ("the Secretary of State") notified the defendant that he had fixed a term of 16 years as being the length of detention necessary to meet the requirements of retribution and general deterrence . The defendant has applied for a review of the minimum term pursuant to schedule 22 paragraph 3 of the Criminal Justice Act 2003 ("the 2003 Act"). I have received written submissions on behalf of the defendant, a statement by the sister of the deceased and a further statement on behalf of the defendant and I will take all these represenations into consideration The defendant has requested an oral hearing on the basis that the circumstances of this case are such that it would be unfair to the defendant to have his minimum term reset without oral representations in the light of the division of judicial opinion. In my view, there is very little division of judicial opinion in this case and I cannot accept this submission or any other of these submissions suggesting that this was an exceptional case. It is no different from the very many other applications which I and other High Court Judges have had to deal with when fixing minimum terms under the 2003 Act. In any event, I do not know what further submissions could be made at an oral hearing over and above those which have been made in writing on behalf of the defendant. In those circumstances, I have decided to deal with this matter on the basis of the written submissions and without an oral hearing. The defendant, who was born on 31 December 1973, was involved in a relationship with a girl which at the time of the murder was breaking up. The defendant went to a public house searching for her suspecting that she was going out with a doorman there. The defendant took with him a large knife placing it on the fence outside the public house. A time came when the defendant spoke with his girlfriend making a threat to kill the doorman. Later two doormen arrived and they spoke to the defendant and a friend of his. The defendant thereupon returned and stabbed one of the doorman to death and it is thought by the trial Judge that the defendant believed that the doorman was going out with his girlfriend. At the trial, the issues raised by the defendant ay trial were self-defence and defence of a friend, provocation and lack of intention. All of these defences were rejected by the jury. I am required when considering the seriousness of the offence and the period to be fixed to have regard to the matters set out in Schedule 21 of the 2003 Act. I am not permitted by statute to set a minimum term greater than the term that the Secretary of State would probably have notified under the practice followed by him before December 2002. Therefore I have to consider what period would have been notified under that practice and then proceed to consider what period would have been arrived at by applying the approach set out in the 2003 Act before imposing the lower of the two periods. The practice which would have been followed by the Secretary of State would have been the practice contained in the letter sent to Judges by Lord Bingham CJ on 10 February 1997 by which a period of 14 years would have been the period actually to have been served for the average, normal and unexceptional murder. In the submissions made by the defendant by his present solicitors, it is pointed out that the only aggravating factor would be the use of a dangerous weapon while the mitigating factors were (a) an intention by the defendant to cause serious bodily harm rather than to kill, (b)a lack of premeditation on the defendant's part and (c ) the deep and genuine remorse of the defendant. In my view, the aggravating features were (a) the defendant's decision to take the knife to the scene which showed a degree of preparation; (b) an attack by the defendant on a victim who in the trial Judge's view was totally unarmed when he was killed; and (c ) the defendant's previous convictions for violence. There was mitigating factors in the sense that (a) there was an intention to cause serious bodily harm rather than to kill and (b) the remorse of the defendant. I do not accept that there was a lack of premeditation as the defendant took a knife to the scene when he was not under any threat himself. In my view, the aggravating factors are more potent than the mitigating factors with the result that under the system which would have been in force at the time when the offence was committed, the Secretary of State is likely to have recommended a period of 16 years to meet the requirements of retribution and general deterrence. I must now consider if a lower figure could be reached under the provisions in the 2003 Act. The starting point would be 15 years. The same aggravating and mitigating factors as are set out in paragraph 10 would apply. The aggravating factors were more potent that the mitigating factors with the result that the likely period to be arrived at would be 17 years which is longer than the period of 16 years which I reached by adopting the practice of which would have been applied by the Secretary of State at the time of the offence. Thus I fix the minimum term at 16 years as from the 17 May 1997 but this should be less 11 months and 9 days spent in custody on remand. This means that as from 7 May 1997 the defendant has to serve 15 years and 21 days before he can be considered for parole.

SECOND SECTION CASE OF MEHMET ZEKİ DOĞAN v. TURKEY (Application no. 38114/03) JUDGMENT STRASBOURG 6 October 2009 FINAL 06/01/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mehmet Zeki Doğan v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 15 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 38114/03) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Zeki Doğan (“the applicant”), on 13 November 2003. 2. The applicant was represented by Mr M.A. Kırdök and Mrs M. Kırdök, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. On 13 May 2008 the Court declared the application partly inadmissible and decided to communicate to the Government the complaints concerning the use of the applicant's statements allegedly taken under duress by the Istanbul State Security Court and the lack of legal assistance to the applicant during his police custody. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS 4. The applicant was born in 1978 and is serving his prison sentence in the Edirne prison. 5. On 13 March 1998 the applicant was taken into police custody on suspicion of membership of an illegal organisation. On 15 March 1998 his statement was taken by the police and on 20 March 1998 he was released due to lack of evidence. 6. On 7 May 1998 the applicant was arrested once again on suspicion of injuring a third person and collecting money by force from third persons on behalf of an illegal organisation. On 12 May 1998 the applicant was interrogated by the police in the absence of a lawyer. On 14 May 1998 he was taken for a medical examination. The medical report stated that there was no trace of ill-treatment on his body. On the same day, the applicant was brought before the public prosecutor and subsequently the investigating judge. Before both officials, the applicant retracted his police statement, alleging that he had been forced to sign it. After the questioning was over, the investigating judge remanded the applicant in custody. On 25 May 1998 the public prosecutor at the Istanbul State Security Court filed an indictment, charging the applicant under Article 146 of the former Criminal Code with attempting to undermine the constitutional order. On 13 December 2001 the Istanbul State Security Court convicted the applicant of being a member of an illegal organisation and sentenced him to fifteen years, seven months and fifteen days' imprisonment, pursuant to Article 168 § 2 of the former Criminal Code. In convicting the applicant, the first instance court relied, inter alia, on the police statement of the applicant. 7. On 8 July 2002 the Court of Cassation quashed the judgment of the Istanbul State Security Court, holding that the applicant should have been convicted under Article 146 of the former Criminal Code. After re-examining the case file, on 12 November 2002 the Istanbul State Security Court convicted the applicant under Article 146 of the former Criminal Code and sentenced him to life imprisonment. On 5 May 2003 the Court of Cassation rejected the applicant's appeal. On 2 June 2003 the decision of the Court of Cassation was deposited with the Registry of the Istanbul State Security Court. THE LAW 8. Relying on Article 6 §§ 1 and 3 (c) of the Convention, the applicant complained that he had been denied the assistance of a lawyer during his police custody, and that his police statement, allegedly under duress, had been used for his conviction. 9. The Government maintained that the applicant had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, since at no stage of the domestic proceedings did he rely on the fact that he had been deprived of his right to legal assistance during police custody. In the alternative, they stated that the application was introduced outside the six months time-limit, since the applicant's police custody had ended on 14 May 1998 and, as of the first hearing on 23 July 1998, the applicant was represented by a lawyer. 10. The Court notes that the restriction imposed on the applicant's right of access to a lawyer was systemic, pursuant to section 31 of Law no. 3842, and applied to anyone held in police custody in connection with an offence falling under the jurisdiction of the State Security Courts. As a result this restriction applied as a blanket rule and the applicant could not request the benefit of legal assistance during his police custody. Accordingly, the Court rejects the Government's preliminary objection regarding the exhaustion of domestic remedies. As to the Government's contention that the applicant failed to comply with the six months time-limit, the Court recalls that, in assessing whether or not a trial was fair, regard should be had to the entirety of the proceedings (see John Murray v. the United Kingdom, 8 February 1996, § 63, Reports of Judgments and Decisions 1996‑I). In the present case, the applicant lodged his application with the Court within six months of the delivery of the final decision given by the Court of Cassation. He therefore lodged his application to the Court within the six month time-limit, as required by Article 35 § 1 of the Convention. Consequently, the Government's second objection cannot be upheld. 11. The Court notes that this remaining part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds and must therefore be declared admissible. 12. As regards the merits, the Court observes that the medical report dated 14 May 1998, which is not disputed by the applicant, stated that there was no sign of ill-treatment on the applicant's body. There is no other evidence which could lead to the conclusion that he had signed his police statement under duress. Nevertheless, it is an undisputed fact that the applicant did not have the assistance of a lawyer during this period. The Court therefore considers it appropriate to limit its examination solely to this matter. 13. The Court recalls that it has already examined the same grievance in the case of Salduz v. Turkey and found a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 ([GC], no. 36391/02, §§ 56-62, 27 November 2008). The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned Salduz judgment. There has therefore been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case. 14. As regards just satisfaction under Article 41 of the Convention, the applicant did not submit any claims for pecuniary or non-pecuniary compensation. He only requested a retrial. Based on a legal fee agreement, the applicant also requested 5,000 euros (EUR) in respect of legal fees and 400 Turkish liras (TRY) (approximately EUR 190) in respect of costs and expenses. 15. The Court considers that the most appropriate form of redress would indeed be the re-trial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should he so request (see, Salduz, cited above, § 72). 16. According to its relevant case-law and the documents in its possession, the Court also considers it reasonable to award the applicant the sum of EUR 1,000 in respect of costs and expenses. 17. The Court further finds it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares the remainder of the application admissible; 2. Holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance to the applicant while in police custody; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into Turkish liras at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 6 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident

COURT OF APPEAL FOR ONTARIO CITATION: Michail v. Ontario English Catholic Teachers’ Association, 2019 ONCA 319 DATE: 20190424 DOCKET: M49883 (C65674) Rouleau, Miller and Fairburn JJ.A. BETWEEN Myriam Michail Moving party and Ontario English Catholic Teachers’ Association, Marshall Jarvis, Bruno Muzzi, Fern Hogan, Joanne Schleen, Shelley Malone, and Sheila Brescia, London District Catholic School Board and Ontario Labour Relations Board Respondents Myriam Michail, in person Christopher Perri, for the Ontario English Catholic Teachers’ Association Aud Ranalli, for the Attorney General of Ontario Liam Ledgerwood, for the London District Catholic School Board Aaron Hart, for the Ontario Labour Relations Board Heard: March 20, 2019 REASONS FOR DECISION [1] The central issue in this motion to review is whether parties in this court are entitled to obtain and disseminate audio recordings of proceedings in this court on their own terms. The answer is no. Background [2] The moving party, Myriam Michail, is a former employee of the London District Catholic School Board. In 2010, she had a dispute with her former employer. The Ontario English Catholic Teachers’ Association (“OECTA”), her union, became involved on Ms. Michail’s behalf. Ms. Michail became dissatisfied with steps taken by the OECTA and filed an application with the Ontario Labour Relations Board (“OLRB”) complaining of unfair representation. That application was unsuccessful. [3] The course of proceedings since that time has been complex and irregular. An overview is provided in the reasons of this court dated October 25, 2018 and reported at 2018 ONCA 857. For the purposes of this motion, the following overview is sufficient. Ms. Michail brought an application for judicial review of the decisions of the OECTA and the OLRB before a single judge of the Superior Court, rather than the Divisional Court as would have been appropriate. Various procedural orders were made by the Superior Court in an attempt to regularize the process. Ms. Michail appealed those interlocutory orders to this court, and also brought a motion seeking, among other things, various exemptions from compliance with the Rules of Civil Procedure , R.R.0. 1990, Reg. 194, in relation to the appeal. She was granted an extension of time to file her materials, but the balance of the motion was dismissed. The respondents then brought a motion to quash the appeal on the grounds that this court lacked jurisdiction over appeals from interlocutory orders of the Superior Court. That motion was successful and the appeal was quashed by this court, with reasons reported at 2018 ONCA 857. [4] Ms. Michail then brought another motion before a single judge of this court, seeking several orders chiefly related to the audio recordings from the hearings of the two earlier motions. She sought orders: 1. dispensing with the requirement that she sign a standard undertaking in order to obtain the release of audio recordings of the hearings of the motion of August 30, 2018, and the appeal of October 18, 2018; 2. permitting her to transcribe the proceedings; 3. directing the publication on the court’s website of the reasons of Paciocco J.A. dated September 4, 2018; and 4. permitting her to challenge the constitutional validity and applicability of s. 136 of the Courts of Justice Act, R.S.O. 1990, c. C.43, specifically ss. 136(1)(a)(i), (b), (c), and 136(4). [5] That motion was heard in writing by Brown J.A. and dismissed, with reasons reported at 2018 ONCA 950, and is the subject of the present motion to review. Ms. Michail renews the arguments she made before the motion judge, and further argues that the motion judge erred in his holding on jurisdiction. Specifically, she argues that he erred in finding he did not have jurisdiction to grant the relief sought – an order exempting her from the requirement that she provide an undertaking not to publish the audio recordings – because there was no longer a live appeal before the court. She argued that if a judge of this court had no jurisdiction to consider her motion for an exemption from the practice direction regarding the use of electronic devices in court, then there would be no forum in which she could raise that issue. [6] Although we agree with Ms. Michail that the motion judge in fact had jurisdiction to decide her motion, the motion to review is nevertheless dismissed for reasons set out below. Request to video record the hearing of the motion to review [7] At the outset of the hearing of this motion to review, Ms. Michail requested permission to video record the hearing of the motion and disseminate that recording. Ms. Michail took the position that the constitutional principle that proceedings of the courts be open to the public (the “open courts” principle) requires the court to permit video recording of its proceedings and dissemination of those recordings, subject to exceptions where justified. Accordingly, she argued, she was not required to provide any reason or justification for her request. In the alternative, she argued that video recording and publication was necessary in this instance as evidence of her experience in the court room. This is required, she argued, to keep judges and lawyers accountable to the public. She also argued that publication of the recording is necessary for public education. [8] We dismissed the request. [9] Video recording of proceedings in courts in Ontario are governed by s. 136(1) of the Courts of Justice Act . Section 136(1) establishes a general prohibition against video recording, subject to exceptions provided in s. 136(3). That subsection provides that the general prohibition does not apply to a video recording “made with the authorization of the judge”. A judge is given statutory jurisdiction to authorize a video recording in three circumstances: (a) where required for the presentation of evidence or the making of a record or for any other purpose of the court hearing; (b) in connection with any investitive, naturalization, ceremonial or other similar proceeding; or (c) with the consent of the parties and witnesses, for such educational or instructional purposes as the judge approves. [10] The moving party’s principal submission was that she has a constitutional right to video record and disseminate the proceedings, subject to the court satisfying her that there is a compelling reason in the particular circumstance of this proceeding not to do so. As we understand it, the submission was not a constitutional challenge to s. 136, but rather grounded in the argument that all statutory grants of discretion must be exercised in accordance with the principles underlying the constitution. She argues that the open courts principle requires that video recording, streaming, and archiving be permitted. [11] We do not agree. The open courts principle is one constitutional principle among many and is not automatically dispositive. Judicial discretion in this instance, like all exercises of judicial discretion, must be exercised in a manner that conforms to the requirements of the rule of law: Roncarelli v. Duplessis , [1959] S.C.R. 121. This includes the requirement that the exercise not be arbitrary, and that it respect authoritative precedents and rules established in advance by other institutions. Judges have a wide discretion to authorize video recording under s. 136(3), but there must be some reason for it that relates to the circumstances of the particular case: R. v. Dunstan , 2017 ONCA 432, at para. 55. What the moving party is seeking is, in effect, to create a default authorization for video recording. This would be contrary to the Act . Proposals to amend the Act to allow video recording of hearings of motions and appeals, as the moving party pointed out, have been made from time to time. Whatever the merits of those proposals, they have not been adopted legislatively, and are not law. [12] In the alternative, the moving party also offered reasons for her demand. These were evidently framed so as to bring the demand within the exceptions in s. 136(3)(a) and (c): that a video recording was required for “the making of a record or for any other purpose of the court hearing”, and for educational purposes. [13] With respect to educational purposes, she argued that it would benefit the people of Ontario generally, and those with an interest in labour law particularly, to be educated by viewing her arguing her motion to review the motion judge’s decision. [14] With respect to “the making of a record or for any other purpose of the court hearing”, she argued that a record of the proceedings was needed to document any abuse of process that might occur during the hearing. [15] In our view the moving party has not established that this is an appropriate case in which we should exercise the discretion provided by s. 136(3). [16] Courts have interpreted s. 136(3) as providing broad authority to authorize video recording where it facilitates the presentation of evidence or otherwise assists in the presentation of a party’s case at trial: Restoule v. Canada (Attorney General) , 2018 ONSC 114, at para. 36; Dunstan , at para. 52. In the unusual circumstances of Restoule , broadcasting and archiving of video recordings of the trial were permitted.  Unlike the present motion, which is at root a dispute between private parties with little if any broader significance, the issues in Restoule are public law disputes of great public significance – the interpretation of treaties signed in 1850, and Crown liability flowing from them. It was anticipated that the evidence to be presented would be significant: The evidence already collected in the expert reports of the witnesses may be the best curated collection of the history of the events leading up to these treaties ever assembled. In addition, the evidence from Elders, Chiefs, and ethno-historians on the lives, culture and beliefs of the Great Lakes Anishinaabe constitutes a major collection in itself. [17] Most significantly, many of the treaty beneficiaries reside in remote and isolated communities spread out over a vast area of land. The extraordinary step of holding the proceedings in four separate communities was itself determined not to be an adequate response to the problem of lack of access to the proceedings for those affected. Accordingly, the motion judge in Restoule determined that live stream broadcasting and archiving of the proceedings was necessary “for providing a process that is perceived to be fair by the parties”, coming within the discretion provided by s. 136(3)(a) to grant an order “for any other purpose of the court hearing.” [18] The moving party’s motion has nothing in common with Restoule . An idiosyncratic and unsubstantiated distrust in the legal system does not generate an entitlement to create a video record of proceedings on demand under s. 136(3)(a). This court is not a court of record, and it is not clear what record the moving party wished to create. Unlike in Restoule , her appeal has been quashed and there is no proceeding in existence. And unlike in Restoule , the purpose for which she seeks a video recording is unrelated to the substance of the hearing itself. [19] The argument that a video recording was sought for public education purposes under the exception set out in s. 136(3)(c) likewise fails. The moving party’s argument rests on reading “education” as encompassing the generation and dissemination of any piece of information. This is too broad a reading. The moving party is not engaged in education or instruction in the sense intended by the statute. The motion to review the motion judge’s decision [20] This court makes digital audio recordings of its proceedings for internal use. These recordings are not governed by s. 136, which addresses the actions of third parties in making recordings. This court makes these recordings pursuant to its inherent power to govern its own process. As set out in s. 17 of the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario , the court makes the recordings available to the parties upon request, for personal use only, and on the condition that the person requesting the recording sign an undertaking agreeing to respect the limits on the permitted uses of the recording. [21] Section 17 of the Practice Direction prohibits dissemination of the digital audio recording, but also provides that the prohibition is subject to a court order to the contrary. In our view, the Practice Direction allows for an application to be made to a single justice of this court, for an order dispensing with the requirement that the digital audio recording not be disseminated. The moving party’s motion was therefore properly before the motion judge. However, for the reasons given above with respect to the video recording, the motion is properly dismissed. The moving party did not provide any reason that would justify releasing her from the obligation not to disseminate. [22] The motion judge made no error in dismissing the motion for an order that certain reasons for decision be posted to the court’s website. As the motion judge noted, it is left to the individual motion judge to decide whether or not to publish his or her reasons on the court’s website. The operational decisions of this court are not subject to review. [23] With respect to the proposed challenge to the constitutional validity of the s. 136 of the Courts of Justice Act , the motion judge made no error in dismissing the motion for lack of jurisdiction. A constitutional challenge to a statute cannot be brought in this court in the absence of a valid appeal. As the appeal had been quashed, the motion judge made no error in dismissing the motion. DISPOSITION [24] The motion is dismissed. Costs are awarded to the respondent London District Catholic School Board in the amount of $1,000 inclusive of disbursements and HST. “Paul Rouleau J.A.” “B.W. Miller J.A.” “Fairburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ludwig v. Ludwig, 2019 ONCA 680 DATE: 20190830 DOCKET: C66504 Tulloch, Roberts and Miller JJ.A. BETWEEN Nils Christian Ludwig Applicant/Appellant and Jennifer Dee Ludwig Respondent/Respondent Steven M. Bookman and Gillian Bookman, for the appellant Ken J. Birchall, for the respondent Patric Senson and Sheena Scott, for the Office of the Children’s Lawyer Heard: June 3, 2019 On appeal from the order of Justice Denise M. Korpan of the Superior Court of Justice, dated January 4, 2019, with reasons reported at 2019 ONSC 50. Tulloch J.A.: I.        OVERVIEW [1] This appeal concerns the Convention on the Civil Aspects of International Child Abduction , Can. T.S. 1983 No. 35 (“ Hague Convention ”). The appellant, Nils Christian Ludwig, and the respondent, Jennifer Dee Ludwig, are spouses who raised their four children in Germany. They then moved with their children to Ontario. Following this move, the appellant and respondent separated. The appellant wanted to return to Germany with the children. The respondent wanted to remain in Ontario with the children. The appellant commenced an application under the Hague Convention seeking the children’s return to Germany. The application judge concluded that the children were habitually resident in Ontario and dismissed the appellant’s application. The appellant appeals from this decision. [2] The central issue in this case is whether the children were habitually resident in Ontario or in Germany. Under the Hague Convention , where the court finds the children to be habitually resident determines whether or not the removal or retention of the children was wrongful and thus whether the court must order the children’s return. If the children were habitually resident in Ontario, then there is no wrongful retention and the Hague Convention does not apply. If the children were habitually resident in Germany, then, subject to the exceptions that the Hague Convention provides, the court must order the return of the children to Germany. [3] This appeal presents this court with an opportunity to consider and apply the new approach to habitual residence that the Supreme Court of Canada adopted in Office of the Children’s Lawyer v. Balev , 2018 SCC 16, [2018] 1 S.C.R. 398. In Balev , the Supreme Court rejected the parental intention model that Ontario courts had previously used to determine habitual residence. In its place, the Supreme Court adopted the hybrid model, which considers both parental intention and the circumstances of the children in determining where the children are habitually resident. Accordingly, I offer some comments in this judgment to set out and explain the proper approach to a Hague Convention application and how to apply the hybrid model. [4] I would dismiss the appeal. I conclude that the application judge correctly stated and applied the hybrid model. She was entitled to make the factual findings that she did. She did not err in considering the children’s wish to remain in Ontario as an indicator of the strength of their links to Ontario. Nor did she consider the evidence and submissions of counsel for the Office of the Children’s Lawyer (“OCL”) as opinion evidence. II.       FACTS [5] The appellant and the respondent are the parents of four children: N. (15 years old), I. (13 years old), D. (12 years old), and P. (nine years old). The appellant is a German citizen and the respondent is a Canadian citizen. They and their children lived almost exclusively in Germany since the appellant and respondent married in 2001. The children are dual citizens but only had German passports. [6] The parents and their children moved to Ontario on August 3, 2017. Prior to the move, the parents purchased an Ontario home and began negotiations to buy a coffee shop business in Ontario. These negotiations were ongoing for several months following the move but ultimately proved unsuccessful. The parents left some belongings in Germany but brought most belongings and important possessions to Ontario. They also spent substantial sums renovating their Ontario home and purchasing home furnishings, cars, and landscaping equipment. The appellant entered Canada as a visitor and lacked a work permit. The children had obtained extended visas which were to expire on September 30, 2018. [7] The parents exchanged numerous text messages both before and after the move. In the messages, both parents expressed uncertainty about the duration of the move to Ontario and whether and when they would return to Germany. [8] The children soon developed ties to Ontario. They successfully completed the 2017-2018 school year in Ontario and did well in school. They made friends and enrolled in advanced classes, sports, and other activities. In particular, they developed close ties with their maternal extended family, which also resided in Ontario. [9] The parents separated in March 2018. After the separation, the appellant made plans to return to Germany. On July 23, 2018, the respondent told the appellant that she intended to remain in Canada with the children. Four days later, she issued a divorce application in Ontario that included a claim for custody of the children. [10] In August 2018, the appellant commenced an application under the Hague Convention for the return of the children to Germany. Before the hearing of the application, Grace J. ordered the involvement of the OCL. His order gave the OCL “full power to act for the…child(ren).” Campbell J. subsequently ordered that OCL counsel could advise the court of the children’s views and preferences from the counsel table, as the parties had agreed. [11] Before the application hearing, OCL counsel (not Mr. Senson or Ms. Scott) met with and interviewed the children and provided a letter to both parties summarizing the children’s views and preferences. The letter stated that N., I., and D. wished to remain in Ontario, while P. did not express any concrete views or preferences. OCL counsel stated that she included a discussion of the consistency, clarity, and independence of the children’s views and preferences in the letter because she had an obligation to consider those factors in taking a position on behalf of the children. She stated that she had “no concerns” about both the clarity of all four children’s views and the independence of the views of N. and I. III.      STATUTORY PROVISIONS [12] The Ontario Legislature adopted the Hague Convention into Ontario law via s. 46(2) of the Children’s Law Reform Act , R.S.O. 1990, c. C.12. Articles 1, 3, 8, 12, 13, and 20 of the Hague Convention are most relevant to this case. These provisions read as follows: Article 1 The objects of the present Convention are - a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Article 3 The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Article 8 Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence. Article 20 The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. IV.     DECISION OF THE APPLICATION JUDGE [13] The application judge ruled that the children were habitually resident in Ontario and dismissed the appellant’s application. She articulated the hybrid approach from Balev by quoting extensively from the majority decision. She then approached her analysis in two steps: 1) When did the retention at issue take place? 2) Immediately prior to the retention, in which state were the children habitually resident? [14] In step one, the application judge found that the retention at issue took place immediately prior to September 2018. She based this finding on the appellant’s allegation in his Hague Convention application that the children were to return to Germany by September 2018. [15] In step two, the application judge first determined that she could not find a shared parental intention to return to Germany after a time-limited stay in Ontario with an expiry date. She emphasized the facts that the parents brought most of their belongings and important possessions to Ontario and spent significant sums on renovating their Ontario home. She relied on text messages tending to show the parents were undecided on whether or when to return to Germany. In addition, the application judge highlighted the appellant’s signing of a form registering one of the children in an advanced class for the 2018-2019 Ontario school year, as well as the appellant’s suggestion that the respondent should get the children covered under OHIP. [16] The application judge next compared the circumstances of the children in Germany and Ontario and determined that their habitual residence was Ontario. She found that the children’s family environment and social environment in Germany and Canada were similar. She accepted that the children’s experiences in Germany were of longer duration. However, she emphasized that their experiences in Canada were more immediate and were for a significant period of time. The children were integrated into and doing well in their Ontario schools. The application judge found as a fact that the children have a closer relationship with their extended maternal family in Canada than with their extended paternal family in Germany. She also referred to the wish of the three elder children to remain in Canada. Balancing all these factors, the application judge concluded that the children’s lives were centered in Canada immediately prior to September 2018. Accordingly, she dismissed the appellant’s application. V.      ISSUES [17] The following issues arise on this appeal: 1. Were the application judge’s reasons inadequate? 2. Did the application judge misapply the hybrid model from Balev ? 3. Did the application judge err in determining the children’s habitual residence? 4. Did the application judge err by permitting OCL counsel to give evidence and advance legal argument from the counsel table? 5. Did the application judge err by permitting the respondent’s counsel to give evidence that was not in the record? VI.     ANALYSIS A. understanding the hague convention analytical framework [18] Before analyzing the appellant’s specific grounds of appeal, it is appropriate for me to provide some general comments on the analytical framework that governs Hague Convention proceedings, especially the hybrid model for determining habitual residence that the Supreme Court adopted in Balev . I offer these comments as useful guidance to litigants, lawyers, and judges seeking to understand and apply the proper approach to Hague Convention proceedings. (1) Objects of the Hague Convention [19] The Hague Convention has two objects: to enforce custody rights and to secure the “prompt return” of children who have been wrongfully removed or retained: Balev , at para. 24; Hague Convention , Article 1. The object of prompt return serves three purposes: it protects against the harmful effects of wrongful removal or retention, it deters parents from abducting the child in the hope of being able to establish links in a new country that might award them custody, and it aims at rapid resolution of the merits of a custody or access dispute in the forum of a child’s habitual residence: Balev , at paras. 25-27. The Hague Convention is not concerned with determining rights of custody on the merits: Balev , at para. 24. In fact, Article 16 expressly prohibits a court charged with a Hague Convention proceeding from determining the merits of custody rights until the court has determined that a child is not to be returned. [20] The Hague Convention aims to achieve its two objects by permitting any person, institution, or other body that claims that a child has been wrongfully removed or retained to apply for the return of the child to the country in which the child is habitually resident: Article 8. If the person alleged to have wrongfully removed or retained the child refuses to return the child, then it falls to the court to decide whether the child should be returned. (2) Analytical Framework for Hague Convention Proceedings [21] There are two stages to a Hague Convention application: determining the habitual residence of the child, and, if the child is found to be habitually resident in the state of the applicant, determining if one of the exceptions to ordering return applies. If the child is not found to be habitually resident in the state of the applicant, then the Hague Convention does not apply and there is no need to consider the exceptions: see Balev , at para. 36. (a) Habitual Residence [22] Habitual residence is central to the Hague Convention because it defines when a removal or retention of a child is wrongful. As Article 3(a) of the Hague Convention provides, the removal or retention of a child is only wrongful if it is in breach of custody rights under the law of the state in which the child was “ habitually resident immediately before the removal or retention” (emphasis added). For example, in this case, the application judge’s finding that the children were habitually resident in Ontario immediately prior to the date of the respondent’s retention of the children in Ontario led her to conclude that this retention was not wrongful, as it did not breach custody rights under Ontario law. Conversely, if the application judge had found that the children were habitually resident in Germany immediately prior to the date the respondent retained the children in Ontario, the application judge would have had to find the retention was wrongful. It would have been in breach of the appellant’s custody rights under German law for the respondent to retain the children in Ontario. [23] I would endorse the two-step approach to habitual residence that the application judge took in this case. Under this approach, the first step is to determine when the alleged wrongful removal or retention took place, and the second step is to determine in which state the children were habitually resident immediately prior to that removal or retention. (i) Step One: Date of Alleged Wrongful Removal or Retention [24] The first step of analysis is for the court to determine the date of the alleged wrongful removal or retention. This date is central to the analysis because the court assesses in which country the child was habitually resident immediately prior to this date. A child’s attachment to a country that is developed after the date of alleged wrongful removal or retention is only relevant to the Article 12 “settled in” exception: Balev , at para. 67. As I will later explain, this date also determines whether the Article 12 “settled in” exception can apply. [25] Identifying the date of alleged wrongful removal or retention does not imply a finding that there has been a wrongful removal or retention. At this first step of the analysis, the wrongfulness of the removal or retention is merely an allegation. All that is required at this step is to fix a date to conduct the habitual residence analysis. Contrary to the appellant’s arguments, it was perfectly consistent for an application judge to find a date of alleged wrongful retention at this first step, and then to ultimately find that there was no shared parental intention and that the respondent’s retention of the children in Ontario was not wrongful. (ii) Step Two: Determining Habitual Residence [26] The second step of the habitual residence analysis requires the court to determine where the child was habitually resident immediately before the date of the alleged wrongful removal or retention. As I will explain, in Balev the Supreme Court changed the approach that Ontario courts had previously employed to determine habitual residence. [27] Prior to the Supreme Court’s decision in Balev , Ontario courts applied a parental intention approach to habitual residence. As this court explained in Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.), at para. 8, leave to appeal refused, [2005] S.C.C.A. No. 132, a child’s habitual residence was tied to that of the child’s custodians and was determined by the custodians’ “settled intention” to stay in a place for a particular purpose. Under this approach, neither parent could unilaterally change a child’s habitual residence without the other’s consent. Likewise, time-limited travel that both parents agreed to could not change the child’s habitual residence: Balev. v. Baggott , 2016 ONCA 680, 133 O.R. (3d) 735, at paras. 39-40, 42, rev’d 2018 SCC 16, [2018] 1 S.C.R. 398. [28] In Balev , the majority of the Supreme Court rejected both the parental intention approach and an alternative child-centred approach. The majority recharacterized parental intention as one relevant factor among many, instead of the controlling factor, and warned against “over-reliance” on this factor: at paras. 45 and 63. It specifically rejected the rules this court had adopted that one parent’s unilateral actions are incapable of changing a child’s habitual residence and that a child’s habitual residence could not change in the case of time-limited travel that both parents agreed to: at paras. 46, 72-73. However, the court also rejected the child-centred approach that the OCL had proposed in its submissions in Balev . Under this child-centred approach, parental intention would be irrelevant and the sole focus would be the child’s acclimatization in a given country: Balev , at para. 41. [29] Instead of the parental intention or child-centred approaches, the court adopted a hybrid model that combined parental intention and the circumstances of the children. The court stressed that under the hybrid approach, the application judge must look at “all relevant considerations,” including both parental intention and the circumstances of the children: at paras. 4, 42. The court stated that the hybrid approach would best fulfill the object of prompt return that animates the Hague Convention : at para. 59. Unlike both the parental intention and child-centred approaches, the hybrid approach would allow the court to consider all relevant factors without relying on formulaic approaches: at para. 65. [30] The aim of the hybrid approach is to determine the “focal point of the child’s life – the family and social environment in which its life has developed – immediately prior to the removal or retention”: at para. 43. To determine the focal point of the child’s life, the majority required judges to consider the following three kinds of links and circumstances: 1) The child’s links to and circumstances in country A; 2) The circumstances of the child’s move from country A to country B; and, 3) The child’s links to and circumstances in country B. [31] The majority went on to outline a number of relevant factors courts may consider in assessing these three kinds of links and circumstances. Considerations include the child’s nationality and “the duration, regularity, conditions and reasons for the [child’s] stay,” along with the circumstances of the parents and parental intention: at paras. 44-45. However, the list of relevant factors is not closed and the application judge must consider the “entirety of the child’s situation”: at para. 47. The child is the focus of the analysis and parental intention is only relevant as a tool to assess the child’s connections to a given country: at para. 68. [32] Certain factors may be more relevant where the child is an infant or is very young. Where a child is an infant, the child’s environment is “essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of”: Balev , at para. 44. Accordingly, the circumstances of the parents, including parental intention, may be especially important in the cases of infants or young children: para. 45. [33] Balev establishes that habitual residence is a question of fact or mixed fact and law and that an application judge’s determination of habitual residence is subject to deference. The court specifically stressed that the hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions”: at para. 47. The application judge must consider the entirety of the child’s situation and no one factor necessarily dominates the analysis: at paras. 44, 47. (b) Application of Exceptions [34] If the court determines that the child was habitually resident in the country of the applicant at the time of the alleged wrongful removal or retention, Article 12 of the Hague Convention provides that the court “shall order the return of the child.” However, Articles 12, 13, and 20 also outline five exceptions to this obligation to return the child. These exceptions come into play only after habitual residence is determined: see Balev , at para. 66. In Balev , at para. 29, the Supreme Court summarized these exceptions as follows: 1) The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a)); 2) There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b)); 3) The child of sufficient age and maturity objects to being returned (Article 13(2)); [1] 4) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and, 5) The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12). [35] Because the arguments in this case touched on the third and fifth exceptions, namely the child’s objections and the “settled in” exception, I will provide further comment on these two exceptions. (i) The “Settled In” Exception [36] First, Article 12 provides the “settled in” exception. As the Supreme Court held in Balev , at para. 66, its function is to provide a “limited exception” to the court’s obligation to return wrongfully removed or retained children to their habitual residences. The court’s discretion to refuse return under the “settled in” exception under Article 12 becomes available if the following two conditions are met: 1) The applicant has commenced return proceedings one year or more following the date of the wrongful removal or retention; and, 2) It is demonstrated that the child is now settled in its new environment. [37] Under the “settled in” exception, the court must assess the children’s connection to the country they are in at the time of the hearing of the application, not immediately before the date of wrongful removal or retention: Balev , at para. 67. This difference in timing can be significant. The “settled in” exception thus accounts for the possibility that a child will develop closer ties to the jurisdiction in which the child has been wrongfully removed or retained in the period of time that follows the date of the wrongful removal or retention: Balev , at para. 67. As the Supreme Court stated in Balev , at para. 66, “It may be that on the hybrid approach habitual residence favours return of the child, but that the one-year period and settling-in indicate that the child should not be uprooted and returned to his or her place of habitual residence.” (ii) The Objections Exception [38] Second, Article 13(2) gives the court the discretion to refuse to order the return of a child of sufficient age and maturity who objects to that return. As the Supreme Court held in Balev , at para. 77, the party opposing return must meet a two-part test to be able to invoke the court’s discretion to refuse return: 1) The child has reached an appropriate age and degree of maturity at which the child’s views can be taken into account; and, 2) The child objects to return. Both of these elements are questions of fact: Balev , at para. 78. [39] Even if the party opposing return can prove both of these elements, the court is not required to refuse to order the child’s return. Instead, the court has a discretion to do so. In Balev , at para. 81, the Supreme Court stated that the court should consider the following factors adopted from the House of Lords’ decision In re M (Abduction: Rights of Custody) , [2007] UKHL 55, [2008] 1 A.C. 1288, at para. 46, when deciding whether to exercise its discretion: 1) The nature and strength of the child’s objections; 2) The extent to which the objections are authentically the child’s own or the product of the influence of the abducting parent; 3) The extent to which the objections coincide or are at odds with other considerations relevant to the child’s welfare; and, 4) General Hague Convention considerations. The general Hague Convention considerations include the overarching objectives of the Hague Convention , namely to secure the prompt return of wrongfully removed or retained children to their country of habitual residence and to ensure that custody rights are respected, as well as the goal of deterring child abduction: Balev , at paras. 24, 26; In re M , at para. 42. (c) Summary of the Governing Analytical Framework for Hague Convention Applications [40] For ease of reference, I will summarize the governing analytical framework for Hague Convention applications below. Stage One: Habitual Residence 1) On what date was the child allegedly wrongfully removed or retained? 2) Immediately before the date of the alleged wrongful removal or retention, in which jurisdiction was the child habitually resident? In determining habitual residence, the court should take the following approach: a) The court’s task is to determine the focal point of the child’s life, namely the family and social environment in which its life has developed, immediately prior to the removal or retention. b) To determine the focal point of the child’s life, the court must consider the following three kinds of links and circumstances: i) The child’s links to and circumstances in country A; ii) The circumstances of the child’s move from country A to country B; and iii) The child’s links to and circumstances in country B. c) In assessing these three kinds of links and circumstances, the court should consider the entirety of the circumstances, including, but not restricted to, the following factors: i) The child’s nationality; ii) The duration, regularity, conditions and reasons for the child’s stay in the country the child is presently in; and iii) The circumstances of the child’s parents, including parental intention. End of Stage One: Two Outcomes 1) If the court finds that the child was habitually resident in the country in which the party opposing return resided immediately before the alleged wrongful removal or retention, then the Hague Convention does not apply and the court should dismiss the application. 2) If the court finds that the child was habitually resident in the country of the applicant immediately before the wrongful removal or retention, then the Hague Convention applies and the court should proceed to stage two of the analysis. Stage Two: Exceptions At this stage, the court shall order the return of the children unless it determines that one of the following exceptions applies: 1) The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a)); 2) There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b)); 3) The child of sufficient age and maturity objects to being returned (Article 13(2)); a) Has the party opposing return met the threshold to invoke the court’s discretion to refuse return? i) Has the child reached an appropriate age and degree of maturity at which the child’s views can be taken into account; and ii) Does the child object to return? b) Should the court exercise its discretion to refuse to return the child? In considering whether to exercise its discretion to refuse return, the court should consider: i) The nature and strength of the child’s objections; ii) The extent to which the objections are authentically the child’s own or the product of the influence of the abducting parent; iii) The extent to which the objections coincide or are at odds with other considerations relevant to the child’s welfare; and iv) General Hague Convention considerations. 4) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); or 5) The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12). B. Treatment of specific grounds of appeal (1) Were the application judge’s reasons inadequate? [41] The appellant submits that the application judge’s reasons are inadequate because she reached bald conclusions without grounding them in the evidence. In particular, the appellant submits that the application judge failed to explain the evidence and legal principles she relied on to make her findings on both parental intention and habitual residence. [42] I reject this argument. Reasons are adequate if they allow the parties, the general public, and the reviewing court to know whether the judge properly considered the applicable law and evidence: Lawson v. Lawson (2006), 81 O.R. (3d) 321 (C.A.), at para. 9. These reasons meet that standard. [43] The application judge set out the law and the analytical framework from Balev . She surveyed and analyzed the relevant evidence before she made the findings on both parental intention and habitual residence that the appellant objects to. Read in context, her reasons explain why she made those findings and ground those findings in the evidence. For instance, she rooted her finding on parental intention in numerous pieces of evidence, such as the fact that the parties brought their most important possessions to Ontario. Likewise, she explained her finding on habitual residence by considering factors such as the children’s integration into Ontario schools, their relationship with their extended maternal family in Ontario, and the three elder children’s preference to remain in Ontario. (2) Did the application judge misapply the hybrid model from Balev ? [44] The appellant argues that the application judge applied the wrong legal test.  He submits that while the application judge stated that she was applying the hybrid model from Balev , she actually applied the child-centred model that Balev rejected. He also submits that the application judge failed to address the children’s links and circumstances in Germany and Ontario and the circumstances of the children’s move from Germany to Ontario as Balev requires. [45] I also reject this argument. As the appellant acknowledges, the application judge correctly set out the law and analytical framework from Balev . She then applied the hybrid model and considered the very factors that the appellant alleges she failed to consider. At paras. 91-92 of her reasons, the application judge specifically compared the children’s life in Germany to their life in Ontario and found that their family and social environments were similar in both countries. She also considered the circumstances of the children’s move from Germany to Ontario. Indeed, she analyzed the reasons for the move and concluded that she could not find a shared parental intention that the move would be for a time-limited stay with a return date. (3) Did the application judge err in determining the children’s habitual residence? [46] The appellant’s third argument is that the application judge made factual and legal errors in determining that the children were habitually resident in Ontario. He alleges the application judge made numerous factual errors. He also submits that the application judge made two legal errors in which she conflated the habitual residence stage of analysis and the application of the exceptions to return.  According to the appellant, the application judge first improperly considered evidence that the children were settling-in to Ontario following the date of the alleged wrongful retention. Second, she erred by treating the children’s views and preferences as objections to their return under Article 13(2) of the Hague Convention . [47] I also reject this argument. The application judge did not commit the factual errors the appellant alleges. Nor did the application judge err in law by conflating the circumstances of the children with the settling-in of the children. Finally, she legitimately considered the children’s views and preferences for purposes relevant to the test for habitual residence. (a) Alleged Factual Errors [48] The appellant alleges a variety of factual errors. These can be grouped under the following five categories: 1. The application judge erred in determining the date of the alleged wrongful retention; 2. The application judge erred in finding that there was no shared parental intention that the move to Ontario was time-limited and had an expiry date; 3. The application judge erred in analyzing the views and preferences of the children; 4. The application judge erred by failing to resolve the forum shopping issue; and 5. The application judge failed to appreciate the significance of the custody rights the appellant possessed over the children. [49] I do not accept these arguments. [50] First, the application judge’s finding that the date of the alleged wrongful retention was immediately prior to September 2018 was reasonable. The appellant himself stated in his Hague Convention application that he consented to the children staying in Canada until the start of the 2018-2019 school year. [51] Second, the application judge did not commit a palpable and overriding error in finding that there was no shared parental intention. There was abundant evidence that the application judge considered which supported her finding on this issue. For instance, the parents brought most of their belongings and important possessions to Ontario and spent significant sums on home renovations in Ontario. The appellant suggests that the application judge should have placed more weight on other pieces of evidence, including pre-separation text messages and the immigration status of the children and the appellant. Yet it is not the role of this court to second-guess the weight the application judge gave to the pieces of the evidence which were before her: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 23. [52] Third, the application judge did not make any palpable and overriding error in her analysis of the views and preferences of the children. The appellant submits that the application judge failed to consider the influence of the respondent and her family on the children as well as the reason for the changes in the children’s views and preferences. However, it was open to the application judge to assign the weight she deemed appropriate to the views and preferences of the children despite the possibility that their views may have been influenced. I agree with the appellant that the views and preferences of the children are not determinative, but there is no indication that the application judge considered them as determinative. She also considered the children’s family and social environment and their experiences in both Canada and Germany to draw a conclusion on habitual residence. [53] Nor is there any merit to the fourth and fifth alleged factual errors. Both parties accused each other of forum shopping. This issue was peripheral to the main issues before the application judge and she was not required to resolve it as it was not material to her ultimate determination: see Wasinski v. Norampac Inc. , 2016 ONCA 309, 31 C.C.E.L. (4th) 1, at para. 31. As for the appellant’s custody rights over the children, the application judge and the parties accepted that the appellant and respondent had joint custody rights over the children. Nothing turned on this issue. (b) Alleged Legal Errors (i) Alleged Settling-In Error [54] The appellant submits that the application judge erred in law by considering the settling-in of the children in order to determine their habitual residence. He submits that the court cannot consider the children’s settled in environment in determining habitual residence when less than one year has passed from the date of the wrongful removal or retention. [55] I do not accept this argument. [56] As I have explained, the “settled in” exception applies if the applicant commences a return proceeding more than one year after the date of the wrongful removal or retention and it is demonstrated that the child is now settled in its new environment. [57] In Balev , the dissent argued, at para. 121, that it would be improper to “consider evidence that speaks to the strength or quality of the child’s connections to each jurisdiction” when determining habitual residence if the evidence of shared parental intent was clear. In the dissent’s view, considering the strength or quality of the child’s connection to each jurisdiction was only permitted under the “settled in” exception, which follows a determination of habitual residence. [58] The majority disagreed. As the majority explained at para. 66 of Balev , the majority saw “no conflict” between the hybrid approach and the “settled in” exception. For the majority, it was conceivable under the hybrid approach that evidence of settling-in could indicate that the child should not be returned even if habitual residence favoured the return of the child. Likewise, at para. 67, the majority emphasized that habitual residence and the “settled in” exception each addresses a different point in time. For habitual residence, the crucial moment is immediately prior to the date of the alleged wrongful removal or retention. In contrast, the “settled in” exception considers the links a child develops to a country following the date of the wrongful removal or retention. [59] It follows that the appellant’s argument must be rejected. In considering the strength and quality of the children’s connections to Ontario, the application judge did not conflate habitual residence with the “settled in” exception. Instead, she did what Balev required her to do, namely to consider all of the children’s relevant links to and circumstances in Ontario. The application judge also repeatedly made clear that she was analyzing the children’s links to and circumstances in Ontario immediately prior to the September 2018 date of alleged wrongful retention, and not subsequent to that date. (ii) Alleged Error in Considering Views and Preferences of the Children [60] The appellant also submits that the application judge erred in law by treating the children’s views and preferences as objections to their return under Article 13(2) of the Hague Convention . The application judge thus conflated the determination of habitual residence with the Article 13(2) exception for “objections.” Yet this exception is only engaged after the court determines habitual residence. [61] Again, I reject this argument. The appellant is correct to stress the important distinction between the determination of habitual residence and the Article 13(2) exception. However, he has not shown that the application judge made the error he alleges. The application judge legitimately considered evidence of the children’s views and preferences for purposes relevant to the test for habitual residence. [62] It is proper for an application judge to consider the child’s views and preferences as a relevant factor in determining habitual residence. Balev requires the application judge to analyze “all relevant links and circumstances” that connect a child to each country: at para. 43. A child’s views and preferences may be one such relevant link or circumstance. Balev teaches that the list of potentially relevant factors is not a closed list: at para. 47. Accordingly, the fact that the majority did not specifically enumerate a child’s views and preferences as a relevant factor in Balev does not bar the application judge from considering those views and preferences. [63] A child’s views and preferences may be relevant to the concerns that animate the hybrid approach. As Balev teaches, at para. 43, the focus of the hybrid approach is the child’s links to and circumstances in the two countries and the circumstances of the move between those two countries. A child’s views and preferences may shed light on their links to a particular country or their circumstances in that country. For instance, if a child wishes to remain in country A because the child has made friends and social connections in country A, the child’s preference to remain in that country provides evidence of the strength of the child’s friendships and social connections, a relevant link to country A. [64] However, courts should not consider views and preferences at the habitual residence stage in a manner that would stray into the Article 13(2) “objections” exception or assessing the best interests of the child. As stated previously, a return order is not a custody determination and the application judge does not have jurisdiction to consider the best interests of the child as a judge would at a custody hearing: Thomson v. Thomson , [1994] 3 S.C.R. 551, at p. 578. Likewise, the Article 13(2) “objections” exception, not the habitual residence stage, is designed to allow the court to give the child “a say in where the child lives”: Balev , at para. 34. [65] In this regard, I would note that children’s views and preferences may sometimes be motivated by factors that are not tied to the criteria for determining habitual residence but are more relevant to Article 13(2) objections or the ultimate determination of access and custody. A child’s views and preferences may have little to do with their links to and circumstances in a given country and may exclusively concern the child’s perceived interests. For instance, a child may wish to remain in a given country because it offers greater economic or educational opportunities when the child reaches the age of maturity. A court could take such a wish into account when considering a child’s objection to return under Article 13(2). Likewise, this wish would be relevant to a court charged with determining the best interests of the child to make a custody or access order. Yet a child’s belief that a given country offers greater economic or educational opportunities in the future offers little assistance to the court in determining whether that country is the “focal point of the child’s life” immediately before the date of the alleged wrongful removal or retention: Balev , at para. 43. [66] In this case, it was open to the application judge to consider the children’s views and preferences as evidence of their circumstances in and links to Ontario. It is true that some of the reasons two of the children gave for wishing to remain in Ontario pertained more to best interests of the child or Article 13(2) “objections” than to the concerns that animate the hybrid approach to habitual residence. For instance, N. and I. indicated that they were doing better in school in Ontario than in Germany, and N. expressed his view that he would have a better chance of attending university in Ontario than in Germany. Yet the three older children also gave reasons for wishing to stay in Ontario that were relevant to their links to Ontario. All three referred to their ties to their maternal extended family as a reason, and I. and D. referenced the friends they had made in Ontario as well. [67] When the application judge’s reasons are read in context, it is clear that she considered the children’s views and preferences as evidence of their circumstances in and links to Ontario, not as Article 13(2) objections. The application judge specifically instructed herself that the issue before her was not the best interests of the children. Before referring to the children’s views and preferences, the application judge emphasized their close relationship with their maternal extended family in Canada. This was one of the principal reasons the children gave for wishing to remain in Canada. The application judge did not highlight N.’s view that he would have a better chance of attending university in Ontario than in Germany. Accordingly, the most reasonable reading of the application judge’s reasons is that she considered the children’s views and preferences as evidence of the children’s circumstances in Ontario and the strength of the links connecting them to Ontario. (4) Did the application judge err by permitting OCL counsel to give evidence and advance legal argument from the counsel table? [68] The appellant further argues that the application judge erred by permitting OCL counsel to exceed the parameters of her court-ordered role. The appellant points to two errors. First, he submits that the application judge erred by permitting OCL counsel to give evidence and advance legal argument on behalf of the children at the application hearing. Second, he maintains that the application judge erred by permitting OCL counsel to give evidence on the consistency, clarity, and independence of the children’s views and preferences when she was not qualified as an expert. (a) Role of OCL Counsel [69] I reject the appellant’s argument that the OCL counsel exceeded the parameters of her role.  The appellant’s submission misunderstands the role of OCL counsel. OCL counsel is not a mere cypher for the children’s views or a passive participant in the proceedings. As this court recently confirmed in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner) , 2018 ONCA 559, 141 O.R. (3d) 481 (“ OCL v. IPC ”), at paras. 69, 98-100, 114, leave to appeal refused, [2018] S.C.C.A. No. 360, OCL counsel acts as the legal representative of the OCL’s child clients and owes them fiduciary duties of loyalty, good faith, and attention to their interests. It follows, as this court established in Strobridge v. Strobridge , that OCL counsel may call evidence and make submissions on behalf of the children: (1994), 18 O.R. (3d) 753 (C.A.), at p. 764. [70] That is what occurred in this case. Grace J.’s order gave OCL counsel “full power to act for the…child(ren),” including the rights to call evidence and make legal submissions. Campbell J.’s subsequent endorsement did not purport to rescind Grace J.’s order. Instead, Campbell J. merely specified the mode of presentation of the children’s evidence, namely that OCL counsel would present this evidence from the counsel table on consent. This court approved of this mode of presentation of the evidence in Strobridge v. Strobridge at p. 764. (b) OCL Counsel Did Not Give Opinion Evidence [71] I also reject the second error the appellant alleges. While it would have been improper for OCL counsel to give opinion evidence, she did not do so, and the application judge did not treat her evidence or submissions as opinion evidence. [72] I agree with the appellant that it would have been improper if OCL counsel had overstepped her role by giving opinion evidence. OCL counsel was a lawyer, not a clinician. She was not qualified as an expert. Nor did any expert clinician accompany her when she met with the children. In RM v. JS , 2013 ABCA 441, 369 D.L.R. (4th) 421, the issue was whether it was proper for counsel for the child in a Hague Convention case to inform the court that the child’s views seemed independent. The Alberta Court of Appeal held that this was improper. Counsel could not give opinion evidence about the independence of the child’s views because counsel was not qualified as an expert, counsel lacked the relevant expertise, and counsel’s non-expert opinion evidence would not be of use to the court: at para. 26. The same was true of OCL counsel in this case. [73] The Alberta Court of Appeal’s holding in RM that it is improper for counsel for the child to proffer opinion evidence is consistent with this court’s decisions in Strobridge and Ojeikere v. Ojeikere , 2018 ONCA 372, 140 O.R. (3d) 561. In Strobridge , at p. 764, this court held that while OCL counsel can make submissions on the evidence, “counsel is not entitled to express his or her personal opinion on any issue, including the children’s best interests.” Likewise, in Ojeikere , at para. 50, this court discounted the opinion evidence of an OCL clinician in relation to children she had interviewed because the OCL clinician was not qualified as an expert. This court cited approvingly Children’s Aid Society of Toronto v. C.J.W. , 2017 ONCJ 212, at paras. 21-22. In that case, the court emphasized that an individual retained to advise the court of the child’s views and preferences, but not qualified as an expert, may only advise the court of both what the child said and the individual’s direct observations of the child. This individual may not offer an interpretation of what the child’s statements mean. [74] However, I also agree with the OCL that OCL counsel had a duty to ascertain the consistency, clarity, and independence of the children’s views and preferences. OCL counsel must ascertain the consistency, clarity, and independence of a child client’s articulated views in order to determine whether to take a position that mirrors those views: see Jewish Family and Child Services of Greater Toronto v. J.K. , 2014 ONCJ 792, 74 R.F.L. (7th) 487, at para. 29. This court recognized the existence of this duty in OCL v. IPC : at paras. 69 and 80.  At para. 80, Benotto J.A. adopted the following passage from the reasons of Mesbur J. in Catholic Children’s Aid Society of Toronto v. S.S.B. , 2013 ONSC 4560, 35 R.F.L. (7th) 178, at para. 21: When [the Children’s Lawyer] takes a position on behalf of a child, child’s counsel will ascertain the child’s views and preferences. In doing so, it will consider the independence, strength and consistency of the child's views and preferences; the circumstances surrounding those views and preferences, and all other relevant evidence about the child’s interests. [75] Furthermore, as I have already explained, OCL counsel has the right to make submissions on behalf of the children. This of course includes the right to make submissions that the children’s views and preferences are clear, consistent, and independent. [76] The question is thus whether OCL counsel stayed within the bounds of assessing the consistency, clarity, and independence of the children’s views to determine what position to take and then make submissions to the court on those factors, or whether she stepped into the realm of giving opinion evidence. As this court held in Strobridge , at p. 764, while OCL counsel “is entitled to…make submissions on all the evidence…counsel is not entitled to express his or her personal opinion on any issue.” [77] I reject the appellant’s submission that OCL counsel purported to give opinion evidence in the letter she provided summarizing the children’s views and preferences. At the application hearing, the appellant’s counsel acknowledged that it was proper for OCL counsel to set out her assessment of the clarity, consistency, and independence of the children’s views in the letter. That assessment was relevant to OCL counsel’s ability to take a position on behalf of the children. As the appellant’s counsel stated in relation to the letter: I’m not questioning the issue that [OCL counsel] found that the older three children had a level of maturity to, to be able to express their views and preferences. … [T]hat was her job…Whatever is in that, that letter is accepted by the [appellant]. [78] I agree. The letter from OCL counsel was not intended for use as opinion evidence. Instead, the letter clearly indicated that the purpose of the statements about the clarity, consistency, and independence of the children’s views was to inform OCL counsel’s own assessment of what position to take on behalf of the children. [79] I also reject the appellant’s argument that OCL counsel’s use of the phrase “I found that…” in the letter indicated that OCL counsel was giving opinion evidence. The use of “I found that…” at one place in the letter was perhaps an unfortunate choice of words. Yet it was clear from the context that OCL counsel was not purporting to offer opinion evidence but instead simply setting out the factors that informed her assessment of what position to take on behalf of the children. [80] The appellant further submits that OCL counsel crossed the line and gave inadmissible opinion evidence in her submissions at the application hearing. He argues that OCL counsel framed her submissions as opinion evidence. [81] I reject this submission. I have reviewed the transcript. OCL counsel did submit that the children’s views were clear, consistent, and independent. She was entitled to do so. However, she did not cross the line into giving opinion evidence. She prefaced her references to clarity, consistency, and independence with the phrase “I submit.” She was entitled to refer to the evidence of the children’s views and preferences in support of her submissions that the children expressed their views clearly, consistently, and independently. Furthermore, in her reply submissions, OCL counsel clearly indicated that her remarks on the clarity, consistency, and independence of the children’s views were intended as submissions. [82] In any case, even if I had concluded that OCL counsel crossed the line into giving opinion evidence, I am not convinced that any prejudice to the appellant would have flowed from this. The application judge did not analyze the clarity, consistency, and independence of the children’s views in any detail, and there is no indication in her reasons that she improperly relied on the comments of OCL counsel as opinion evidence. (5) Did the application judge err by permitting the respondent’s counsel to give evidence that was not in the record? [83] The appellant’s final submission is that the application judge erred by permitting the respondent’s counsel to advance statements of fact regarding the parties and their children that were not in the record. The appellant argues that this produced an injustice. [84] I reject this argument. I agree with the OCL that this issue has no bearing on the application judge’s decision. The application judge did not expressly rely on any of the evidence that the respondent’s counsel allegedly tendered. The appellant is unable to point to any connection between such evidence and the application judge’s decision. Accordingly, there is no prejudice to the appellant from any error. VII.    DISPOSITION [85] Accordingly, I would dismiss the appeal. The parties agree that this is not a case for costs. Released: “MT” AUG 30 2019 “M. Tulloch J.A.” “I agree. L.B. Roberts J.A.” “I agree. B.W. Miller J.A.” [1] As the Supreme Court explained in Balev , at para. 5, fn. 1, “Although this provision is not numbered in the Hague Convention (unlike Article 13(a) and Article 13(b)), it is generally referred to as Article 13(2).”

Lord Justice Wall: This is an application by TC and SM for permission to appeal against an order made by HHJ Daley, sitting in the Liverpool County Court on 23 April of this year. The judge refused their application for permission to oppose an application for adoption, which is being made in relation to their daughter, whom I will only call C, who was born on 6 June 2006 and is thus now two years old. This is a very sad case. Miss C has altogether had four children, and I only mention the history because I played some part in it when I sat at first instance. Her first child was a little boy called M, born on 30 June 1998. He died very young, and I had to investigate the circumstances in which he died. There is in the papers I have seen a judgment which I gave on 19 April 2000 in which I made a number of findings about M. At that point I was concerned with Miss C's second child, B, who was born on 4 January 2000. Initially I made a care order in relation to B and the idea was that B would live with his mother under the care order. However, for reasons I need not go into today, that plan did not work and the result was, when the matter came before me on 11 December 2002, I refused Miss C's application to discharge the care order and made a freeing order in relation to B. He was subsequently adopted, as was Miss C's third child, L, who was born on 29 March 2003. On 11 November 2003 L's case came before HHJ Daley, sitting in Liverpool, and she made a care order in relation to him and freed him for adoption My understanding is that L and B have been adopted together. In these proceedings HHJ Daley was concerned with Miss C's fourth child, also her second child by Mr M, C, who, as I have already said, was born on 6 June 2006. On 23 April 2007, in a judgment which is recorded and which I have read, the judge heard contested care proceedings in relation to C, together with the application by the local authority for a placement order under the 2002 Adoption and Children Act. The judge granted those applications, with the result that on 25 May C was placed with her prospective adopters, where she has remained. Miss C and Mr M appealed or sought permission to appeal against HHJ Daley's decision. Initially the application came before my Lord, Ward LJ. He adjourned it to the full court with the appeal to follow if permission was granted. The result was there was a full hearing and on 9 October of last year the application for permission to appeal was refused. The effect of a placement order combined with the care order means that Miss C and Mr M can only oppose the prospective adoption with the judge's permission and it was of course that application which came before the judge in April 2008. I need to explain a number of things before I go any further. The first is that I asked Miss C at the very outset of the proceedings today whether she was content that I should hear the case, given that I had dealt with B and M. She was content that I should do so, and I think I can say without offending any of the rules that it is clear from all the papers that Miss C is not now today the woman she was when I dealt with her back in 2000 and 2002; she has undoubtedly matured. However, common theme of the proceedings, really going back to 2000, was that although Miss C was not mentally ill in any way, she suffered from certain personality defects, which are not her fault, based entirely on her upbringing (or lack of it), with the result that what she needed in order to come to terms with her very difficult past was an extensive process of psychotherapy. I do not think I am being unfair to Miss C when I say she was initially resistant to that, but latterly she has embraced it and so when the matter came before HHJ Daley in April, Miss C had been having quite a long series of sessions with a psychologist. I also have to explain to Miss C and to Mr M that sitting as I now do in the Court of Appeal, I cannot go behind any of the orders made previously by this court on 9 October or prior to 9 October. This court refused Miss C and Mr M's application for permission to appeal and therefore I start from the premise -- I have to start from the premise, my powers do not allow me to do anything else but to start from the premise -- that there was a care order in relation to C; that she was made the subject of a placement order; and that she was placed with prospective adopters on 25 May 2007. These are the facts from which I have to start. Equally, I have to explain that the circumstances in which C was removed from her mother at birth, about which Miss C makes very vigorous complaint, as does Mr M, are not matters I have investigated or can investigate. I have to start, as I say, from the premise that the order made on 23 April 2007 was properly made and that it was the subject of an unsuccessful application for permission to appeal. Furthermore, when I come to look at what HHJ Daley did on 23 April 2008 my powers are once again similarly limited. The questions I have to ask myself are: did the judge get the law wrong? Has she made an error of law or is it arguable that she made an error of law? And if she did not make an error of law, is it arguable that she has exercised her discretion in a way which would entitle this court to interfere with it? HHJ Daley knew the case well. That is a matter of criticism from particularly Mr M this morning, although Miss C joined in to an extent. Miss C and Mr M have the distinct impression that the judge is biased against them, that she is only interested in what Mr M described as I think adoption statistics or adoption targets and that she wanted to get the case out of court as quickly as possible. She was biased in favour of social services; she did not give them a fair hearing. It is right to say that the Court of Appeal when it heard the matter in October did not agree with that analysis and thought that the criticisms which Miss C and Mr M made of the judge unfair. That again is something which I cannot get behind. So when I look at what HHJ Daley did, the first thing I have to ask myself is, did she get the law wrong? The law is very clear because, as I indicated, section 47(5) of the 2002 Act empowers the court to give permission to parents to oppose a prospective adoption if there has been a change in the circumstances since the original order for placement was made. The question what that section means has been to this court, and in this court it was decided that there was a two-stage process. The first stage was to ask, has there been a change of circumstances? If the answer to that question is "no", that is the end of the matter because the case does not even get off the ground. However, if there has been a change of circumstances then the judge has a discretion. The change of circumstances unlocks the door to discretion and the judge can exercise the discretion to allow the parents to defend if the judge decides that such a course is in the best interests of the child. The first point is that the judge went straight to that case, which she cites at paragraph 8 of her judgment. She reads out the relevant paragraphs from it and she applies the law in relation to it. So it is plain to me, and it has to be plain to me as a lawyer, that she has not got the law wrong. She has applied the right test. So she had to decide: has there been a change of circumstances? In answering that question, the judge looked carefully at the various matters which were placed before her by Miss C and Mr M, all of which are in her judgment and which she wrote carefully down and recorded, and she decided that there had been in one respect, in one major respect, an important respect, a change of circumstances. This was that Miss C had embraced the idea of psychotherapy and had had a number of sessions with a particular psychologist, Dr O. The judge said in terms in paragraph 12 of her judgment that this was: "In the context of this case for [Miss C] following my placement order to embark upon, engage upon, sustain and further commit to psychotherapeutic sessions is a tremendous step forward for her personally and I have nothing but praise for her courage in so doing." So the judge came to the conclusion that that was a change of circumstances within section 47(5) which opened the door to the exercise of discretion. So to that extent she found very much, if I may put it in this way, in Miss C's favour. So Miss C got over the first hurdle. The second hurdle was the welfare of C, and in relation to that the judge weighed and had to weigh a number of different factors. The first was of course the progress which the mother Miss C had made and, as I say, she thought that was a tremendous step forward: indeed today that has been further emphasised to me by two letters from the consultant psychiatrist who had previously treated Miss C, effectively discharging her from secondary mental health services: one letter is addressed to her, one letter is addressed to the GP. They are both dated 17 July so they could not have been before the judge, but the letter to the GP is very positive about Miss C and indeed today she has told me that she has changed, in her words, "a hell of a lot", and she has kept down a job. She has not changed in some aspects of her personality because she still describes herself as being a fairly lively person, but she says she has changed dramatically in relation to her recognition of the past and her ability to care for C and no-one, least of all the judge, doubted the love which both Miss C and Mr M have for their daughter, even though of course they have not seen her effectively since very shortly after she was born. So the judge having decided the door to discretion was open, she then had to balance in the equation the various factors; and from Dr O's report, which was before her, she took one particular phrase: "there is still a very long way to go". She commented that, in her view of this report, the psychotherapeutic intervention, important as it was and "tremendous step" that it was, was only in its early stages. Dr O, she thought, did not, nor could he, come up with a prognosis for what she would describe as "success". And she added: "It's only [Miss C] who considers herself sufficiently 'under control' to parent in August of 2008" (which was the anticipated time for the psychotherapeutic sessions to reach their culmination, although unfortunately apparently it appears that Dr O was on some form of leave -- sick leave or holiday I am not sure which -- but which means that the sessions have been suspended). And the judge added: "His report, with the greatest of respect, does not say [that she was 'under control'] and in the context of this case I view the assertion that she will be up, ready and completely competent psychologically speaking to parent in August 2008 as being, quite frankly, unrealistic." The judge then looked at the other factors she had discussed earlier in the judgment and thought that they were unchanged. She thought Mr M was still angry and was still very critical of the local authority and unlikely to co-operate with the local authority, Then, finally, she turned to C herself and said C was nearly two (she is of course now two); D had never lived with her parents; her primary attachments had been with foster carers; and that in those circumstances, however desperate the mother may be to care for her, and however she may feel (that is, how the mother may feel) that the bond with her daughter has not been broken and never will be broken; and however heartbreaking the situation was for Miss C, the position in relation to the child was that the bond would be with, initially, the foster parents and now, in the year that she has been there, with the adopters. And since C was rising two, delay was not in her interests. Why, the judge asked, should C wait for what was still, sadly, an uncertain possibility, namely that Miss C would be in a position in the future to care for her? The judge reached the conclusion that to deny C permanence -- which was what the original care plan proposed, and the Court of Appeal had confirmed -- without a positive psychological outcome within time limits appropriate and acceptable to the young child was contrary to her interests. Finally, as she had to, she balanced the respective rights to respect for family life held by Miss C and Mr M on the one hand and by the child on the other, and came to the view that C's right to respect for family life prevailed. So, balancing all those factors together, she came to the conclusion that she had to refuse permission to apply to defend the adoption proceedings. Miss C this morning and Mr M have both put in statements, which of course I have read, and Miss C and Mr M have both addressed me in court this morning. I feel desperately sorry about this case and I quite understand Miss C when she says: "If you are against me, I am going to go to Europe because Europe is the only place that will understand the question of human rights." I understand all of that but I have to explain to her, as I explained earlier, that my function is very limited. The judge did not get the law wrong. She had to balance a series of factors and she came to a conclusion which was plainly open to her. In other words, she was entitled to reach it. If I had been sitting where she was who knows whether or not I would have reached the same decision. I may have done. I do not know. But that is not the question. The question I have to ask myself is: is it arguable that the judge has exercised her discretion in such a way that this court could properly interfere with it? I have come to the clear conclusion that she has not exercised her discretion improperly and that, were I to adjourn this case to be heard by the full court, it would simply be adding to the delay and increasing the heartache and so, with regret but nonetheless quite clearly, I have come to the view that this application must be refused. I will however make a copy of my remarks in this judgment available at public expense to Miss C and Mr M so that they may consider them and if, as is their right, they take the matter to Europe, no doubt the European Court will consider them as well. Order: Application refused

FIFTH SECTION CASE OF MAKARA AND OTHERS v. UKRAINE (Application no. 40934/06 and 249 other applications) JUDGMENT STRASBOURG 12 December 2013 This judgment is final. It may be subject to editorial revision. In the case of Makara and others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Boštjan M. Zupančič, President, Ann Power-Forde, Helena Jäderblom, judges, and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 19 November 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in 250 applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian naionals, a company based in Ukraine and a Moldovan national, whose details are specified in the appended tables (“the applicants”). 2. The Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy. 3. On 25 April 2013 the applications were communicated to the Government. 4. The Moldovan Government, having been informed of their right to intervene in the proceedings in respect of the applicant in application no. 63044/11 (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), did not manifest the wish to exercise that right. 5. On 25 October 2013 the son of the applicant in application no. 75234/11 informed the Court that his father, Andriy Ivanovych Kolomiyets, had died on 24 June 2013. Mr Sergiy Andriyovych Kolomiyets expressed his wish to maintain the application of the deceased father. THE FACTS THE CIRCUMSTANCES OF THE CASE 6. On the dates set out in the appended tables domestic courts and labour disputes commissions delivered decisions according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour. The decisions became final and enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time. 7. Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non-enforcement issues. THE LAW I. AS TO THE LOCUS STANDI OF Mr SERGIY ANDRIYOVYCH KOLOMIYETS (SON OF THE APPLICANT IN APPLICATION No. 75234/11) 8. The Court notes that application no. 75234/11 concerns a property right which is in principle transferable to the heirs, and that there are next of kin of the deceased applicant who wish to pursue the application. In these circumstances the Court considers that Mr Sergiy Andriyovych Kolomiyets, the son of the deceased applicant, has standing to continue the present proceedings in his stead (see, among other authorities, Mironov v. Ukraine, no. 19916/04, § 12, 14 December 2006). II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 9. The applicants complained about the lengthy non-enforcement of the decisions given in their favour and about the lack of effective domestic remedies in respect of those complaints. They relied on, expressly or in substance, Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1. A. Applications set out in Appendix 1 10. In view of the similarity of the applications listed in Appendix 1 in terms of the principal legal issue raised, the Court finds it appropriate to join them. 11. The Court notes that in several applications the Government made specific comments on the admissibility of the case, including that the judgment had been enforced, that the applicant had not suffered any significant disadvantage, that the applicant was not entitled to sums of money claimed, that the application was an abuse of the right of petition, that the applicants had lost interest in the case, or that the State was otherwise not responsible for the delay. The Court has considered these submissions as they have been made, notes that they are similar to submissions which have been made in previous cases and finds that, for similar or related reasons, they do not affect the outcome of the present case. 12. The Court further notes that the complaints of the applicants enumerated in Appendix 1 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 13. The Court finds that the domestic decisions set out in Appendix 1 were not enforced in due time, for which the State authorities were responsible. 14. Having regard to its well-established case-law on the subject (see Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § §§ 56-58 and 66-70, 15 October 2009), the Court finds that in the applications listed in Appendix 1 there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the prolonged non-enforcement of the decisions in the applicants’ favour. It also considers that there has been a violation of Article 13 of the Convention in that the applicants did not have an effective domestic remedy to redress the damage created by such non-enforcement. B. Applications set out in Appendix 2 15. In view of the similarity of the applications listed in Appendix 2 in terms of the principal legal issue raised, the Court finds it appropriate to join them. 1. Applications nos. 25461/10, 42826/11 and 43547/11 16. In their observations in respect of applications nos. 25461/10, 42826/11 and 43547/11 the Government submitted that the relevant domestic decisions had been fully enforced within reasonable periods of time. They claimed, in particular, that the enforcement had been completed within ten (application 25461/10) and four months (applications nos. 42826/11 and 43547/11). They noted in respect of application no. 43547/11 that as the judgment at issue had been rendered in favour of the applicant’s deceased father, the applicant could claim to be victim of the alleged violation as from 21 May 2011, the date on which the applicant had been recognized as a judgment creditor by a domestic court. The Government, therefore, maintained that these applications were manifestly ill-founded. The applicants failed to refute the Government’s contentions. 17. The Court observes that the applicant in application no. 43547/11 inherited the judgment debt on 27 January 2011 and, accordingly, he could claim to be victim of the non-enforcement from that date, with respect to violation of Article 1 of Protocol No. 1 (see Lopatyuk and Others v. Ukraine, nos. 903/05 and others § 14-15, 17 January 2008). In any event, the duration of the enforcement in his favour amounted to eight months only. The Court, therefore, agrees with the Government’s position that the length of enforcement in these three applications was not excessive and that the applications are manifestly ill-founded within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 of the Convention (see Andreyenko and Others v. Ukraine (dec.), no. 22312/03, 19 June 2007; Zbaranskaya v. Ukraine (dec.), no. 43496/02, 11 October 2005). 2. Applications nos. 32650/11, 45331/11, 71028/11 and 75042/11 18. The Government argued that in the above applications the delays in enforcement concerned the payment of relatively small awards (between UAH 38,40 (around EUR 4) in application no. 32650/11 and UAH 876 (around EUR 81) in application no. 71028/11. They contended that the applicants had not suffered a significant disadvantage in view of the pettiness of those amounts. The applicants did not argue. 19. The Court recalls that it has previously found a lack of “significant disadvantage” in the cases, where the amount in question was equal or inferior to roughly EUR 500 (see, for instance, Gururyan v. Armenia (dec.), no. 11456/05, 24 January 2012; Ștefănescu v. Romania (dec.), no. 11774/04, 12 April 2011). The Court agrees that in present cases the applicants did not suffer any significant disadvantage as a result of the non-enforcement of the judgments at issue. 20. The Court also notes that “the respect for human rights”, as defined in the Convention and the Protocols thereto, does not require examination of the present complaint on the merits, as the problem of non-enforcement of final decisions has already been addressed in the Court’s pilot judgment against Ukraine adopted in the case of Yuriy Nikolaevich Ivanov v. Ukraine (see Yuriy Nikolayevich Ivanov v. Ukraine, cited above) and in a number of other cases examined against Ukraine, which are moreover currently examined under “the well-established case-law procedure”. 21. The Court further notes that the applicants’ cases were duly considered by the domestic tribunals within the meaning of Article 35 § 3 (b) with the decisions favourable to the applicants. 22. In view of the foregoing, the Court concludes that applications nos. 32650/11, 45331/11, 71028/11 and 75042/11 should be rejected as inadmissible in accordance with Article 35 § 3 (b) of the Convention. 3. Application no. 38898/11 23. The Government submitted that according to the findings of an inquiry carried out by the Ukrainian authorities the judgment of the Zamostyanskyy District Court of Vinnytsya dated 11 December 2006 had been forged. The Court was also informed that in March 2012 criminal proceedings as to the forgery of the abovementioned judgment had been instituted. The Government also recalled that the issue of non-enforcement of the judgment of 11 December 2006 had been subject to the Court’s examination in the framework of the case of Igor Volodymyrovych Pechonka and 5 Other applications against Ukraine ([Committee], no. 3834/10, 2 April 2013), in which the applicants’ complaints had been rejected as a whole as an abuse of the right of application. The applicant did not reply to the submissions of the Government. 24. The Court comes to the same conclusions in this application and declares it inadmissible as an abuse of the right of application pursuant to Article 35 §§ 3 and 4 of the Convention. 4. Application no. 66805/11 25. The Government submitted that by the judgment of the Leninskyy District Court of Lugansk of 5 January 2005 the debtor, a local Military Enlistment Office, had been ordered to recalculate the applicant’s military pension taking into account rates of additional increases determined by the bylaws applicable at the time. They claimed that the debtor had recalculated and paid the applicant’s pension according to the above bylaws until 31 December 2007. The Government further argued that from 1 January 2008 the applicant had lost legitimate expectations as to payment of his pension in the amount envisaged by the judgment of 5 January 2005 on account of changes to legislation regulating calculation of military pension, on whose provisions the judgment at issue had been based. The Government further maintained that the applicant’s complaints were fully unsubstantiated and that he had brought his application before the Court more than 3 years after the changes to legislation. They considered that, given the above the application was manifestly ill-founded. The applicant argued. 26. The Court observes that applicant did not challenge before national courts the authorities’ refusal from 1 January 2008 to pay him the pension in the amount provided by the judgment of 5 January 2005. Accordingly, the matter whether the changes to legislation referred to by the Government were capable of justifying the termination of such payments was not subject to examination by the domestic courts. It follows that the applicant’s complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 27. Some of the applicants raised other complaints under the Convention, which the Court has examined carefully. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 28. It follows that those complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 30. In the present case, the Court considers it reasonable and equitable (see Kononova and Others v. Ukraine [Committee], no. 11770/03 and 89 other applications, § 24, 6 June 2013; Tsibulko and Others v. Ukraine [Committee], no. 65656/11 and 249 other applications, § 19, 20 June 2013; Pysarskyy and Others v. Ukraine [Committee], no. 20397/07 and 164 other applications, § 24, 20 June 2013) to award 2,000 euros (EUR) to each of the applicants in Appendix 1. This sum is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses. 31. The Court further notes that the respondent State has an outstanding obligation to enforce the decisions which remain enforceable. 32. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join the applications set out in Appendix 1; 2. Declares admissible the complaints of the applicants, listed in Appendix 1, under Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 about the lengthy non-enforcement of the decisions given in their favour and about the lack of effective domestic remedies in respect of those complaints and declares inadmissible the remainder of the applications; 3. Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1; 4. Holds that there has been a violation of Article 13 of the Convention; 5. Holds (a) that within three months the respondent State is to enforce the domestic decisions in the applicants’ favour which remain enforceable, and is to pay EUR 2,000 (two thousand euros) to each applicant or his or her estate in the applications enumerated in Appendix 1 in respect of pecuniary and non-pecuniary damage, and costs and expenses, plus any tax that may be chargeable to the applicants on the above amounts, which are to be converted into the national currency at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 6. Decides to join the applications set out in Appendix 2, and to declare them inadmissible. Done in English, and notified in writing on 12 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsBoštjan M. Zupančič Deputy RegistrarPresident APPENDIX 1 (admissible applications) APPENDIX 1 (admissible applications) No. Application no. and date of introduction Applicant name date of birth place of residence Relevant domestic decision 40934/06 28/09/2006 Larisa Nikolayevna MAKARA 31/07/1958 Vesele Mykhaylivskyy District Court of the Zaporizhzhya Region, 18/07/1995 1912/08 24/12/2007 Irina Vladimirovna KOSTYANIKOVA 16/03/1960 Krasnyy Luch Krasnyy Luch Court, 18/05/2005 36173/08 30/06/2008 Ivan Gryorovych GORDEYUK 07/10/1938 Lviv 1) Shevchenkivskyy District Court of Lviv, 13/12/2007 2) Lviv Circuit Administrative Court, 13/10/2008 3) Lviv Administrative Court of Appeal, 02/02/2010 4) Galytskyy District Court of Lviv, 29/07/2010 5) Shevchenkivskyy District Court of Lviv, 29/07/2010 37658/09 24/06/2009 Kateryna Sergiyivna FRANOVSKA 07/09/1956 Zhytomyr 1) Pecherskyy District Court of Kyiv, 23/08/2005 2) Zhytomyr Circuit Administrative Court, 05/10/2007, quashed by the Higher Administrative Court on 19/07/2011 3) Zhytomyr Circuit Administrative Court, 21/11/2007 50090/09 03/08/2009 Viktor Ivanovych MYKHAYLOVSKYY 27/09/1959 Zhytomyr 1) Pecherskyy District Court of Kyiv, 23/08/2005 2) Zhytomyr Circuit Administrative Court, 05/10/2007, quashed by the resolution of the Higher Administrative Court of Ukraine on 19/07/2011 3) Zhytomyr Circuit Administrative Court, 21/11/2007 57108/09 15/10/2009 Lyubov Myroslavivna BABIRAD 01/10/1965 Sambir 1) Sambir Court, 22/04/2009 2) Sambir Court, 18/06/2009 61775/09 04/11/2009 Aleksandr Aleksandrovich TIMOSHENKO 11/02/1982 Oleksandriya Oleksandriya Court, 27/12/2007 36695/10 25/05/2010 Oleksandra Fedorivna SHAGA 04/12/1951 Chernigiv 1) Novozavodskyy District Court of Chernigiv, 18/12/2009 2) Kyiv Administrative Court of Appeal, 19/02/2009 45184/10 07/07/2010 Oleksandr Ivanovych VLASENKO 05/11/1974 Rozsoshentsi 1) Kyyivskyy District Court of Poltava, 30/03/2009 2) Kyyivskyy District Court of Poltava, 31/03/2010 46174/10 02/08/2010 Valentina Pavlovna IGNATOVA 21/05/1947 Krupske, Makiyivka Chervonogvardiyskyy District Court of Makiyivka, 23/12/2002 49967/10 17/08/2010 Yuriy Alekseyevich USOV 07/07/1949 Kherson Dniprovskyy District Court of Kherson, 06/07/2009, as amended by the Kherson Regional Court of Appeal, 02/12/2009 72622/10 16/11/2010 Volodymyr Yuriyovych TKACHUK 04/08/1967 Zhytomyr Korolyovskyy District Court of Zhytomyr, 26/09/2003 24651/11 08/04/2011 Ivan Fedorovych PANCHENKO 16/08/1944 Tetiyiv Tetiyiv Court, 29/11/2007 28494/11 27/04/2011 Lidiya Grigoryevna VORONKOVA 08/01/1952 Pavlograd Pavlograd Court, 03/11/2006, as amended by the Dnipropetrovsk Regional Court of Appeal on 10/05/2007 28950/11 28/04/2011 Yelena Vitalyevna MASLAK 01/01/1965 Kostyantynivka Kostyantynivka Court, 09/02/2001 32420/11 17/05/2011 Grygoriy Ivanovych SKRYPNIK 01/01/1965 Lysychansk 1) Labour Disputes Commission of the Remontno Mekhanichnyy Zavod, OJSC, 23/11/2004 2) Lysychansk Court, 18/02/2011 32423/11 17/05/2011 Tetyana Ivanivna SKRYPNYK 20/01/1959 Lysychansk 1) Labour Disputes Commission of the Remontno Mekhanichnyy Zavod, OJSC, 23/11/2004 2) Lysychansk Court, 18/02/2011 33576/11 20/05/2011 Vladyslav Vasylyovych POTIYENKO 01/01/1965 Tetiyiv Tetiyiv Court, 28/11/2007 35171/11 30/05/2011 Anatoliy Filippovich KHODAK 29/08/1961 Khmelnytskyy Military Court of the Khmelnytskyy Garrison, 23/02/2004 35400/11 17/05/2011 Lyubov Ivanovna GAVRISH 23/05/1961 Knyagynivka Krasnyy Luch Court, 21/06/2005 35406/11 17/05/2011 Larisa Ivanovna RUDNEVA 28/12/1969 Vakhrusheve Krasnyy Luch Court, 10/06/2005 35428/11 17/05/2011 Lyudmila Petrovna LOMAKINA 05/06/1961 Krasnyy Luch Krasnyy Luch Court, 10/08/2005 36698/11 03/06/2011 Yaroslav Fedorovich STASYUK 06/12/1958 Sosnivka Chervonograd Court, 22/08/2005 36932/11 09/06/2011 Vasyl Matviyovych VITCHYNKIN 18/01/1949 Berezan Berezan Court, 04/10/ 2007 36939/11 09/06/2011 Nadiya Oleksiyivna VITCHYNKINA 05/03/1952 Berezan Berezan Court, 04/10/2007 36968/11 10/06/2011 Galyna Mykhaylivna DESNENKO 13/12/1953 Oleksandriya Oleksandriya Court, 27/12/2007, as amended by the Dnipropetrovsk Administrative Court of Appeal, 04/11/2008 37138/11 04/06/2011 Viktor Ananiyovych SHEIN 23/08/1936 Yakovlivka 1) Tsentralno-Miskyy District Court of Gorlivka, 25/04/2003 2) Tsentralno-Miskyy District Court of Gorlivka, 11/03/2004 37458/11 31/05/2011 Andriy Oleksiyovych TELESHUN 06/02/1959 Oleksandriya Oleksandriya Court, 18/08/2009 37753/11 09/06/2011 Stepan Yakovych POLISHCHUK 01/01/1954 Telizhentsi Tetiyiv Court, 17/12/2007 37760/11 14/06/2011 Gennadiy Viktorovych MATYUSHYN 28/01/1963 Zhytomyr Korolyovskyy District Court of Zhytomyr, 13/05/2010 38132/11 11/06/2011 Yegor Yegorovych NOVOKHATSKYY 15/03/1952 Lugansk Zhovtnevyy District Court of Lugansk, 25/02/2010 38379/11 14/06/2011 Rygyna Eduartivna MURGA 05/10/1931 Mazinky Pereyaslav-Khmelnytskyy Court, 19/02/2008 38858/11 17/06/2011 Oleksandr Mykhaylovych LOMYKO 23/07/1951 Lugansk Artemivsk Court, 05/03/2009 38925/11 17/06/2011 Nina Pavlivna BUBENKO 01/12/1926 Bovkun Tarashcha Court, 31/07/2008 39240/11 10/06/2011 Gennadiy Glebovich LATYGOVSKIY 15/01/1950 Perevalsk Perevalsk Court, 18/09/2000 39260/11 15/06/2011 Vasyl Oleksandrovych SHEVCHUK 01/01/1957 Sofipol Tetiyiv Court, 29/11/2007 39269/11 03/06/2011 Mariya Nikolayevna SAYEVSKAYA 07/05/1955 Konotop Konotop Court, 26/11/2007 39772/11 06/06/2011 Yuriy Stanislavovich DYUKHIN 02/03/1963 Konotop Kharkiv Administrative Court of Appeal, 03/04/2009 39773/11 08/06/2011 Mykhaylo Vasylovych KOTYUK 01/01/1949 Oleksandriya 1) Oleksandriya Court, 31/03/2009 2) Oleksandriya Court, 31/03/2009 39951/11 07/06/2011 Leonid Oleksiyovych ZHOLUD 17/05/1948 Oleksandriya 1) Oleksandriya Court, 31/03/2009 2) Oleksandriya Court, 31/03/2009 40071/11 16/06/2011 Ivan Mykhaylovych TARAN 18/07/1941 Khmelnytskyy Khmelnytskyy Court, 06/03/2008 40073/11 14/06/2011 Vladimir Kimovich ZINCHENKO 04/03/1963 Oleksandrivka Oleksandrivka Court, 10/04/2007 40094/11 20/06/2011 Oleksandr Vasylyovych GODUNOV 14/03/1956 Artemivsk Artemovsk Court, 02/04/2008 41182/11 22/06/2011 Aleksandr Nikolayevich BOYKO 02/08/1947 Dubovyazivka Konotop Court, 24/09/2007 41293/11 24/06/2011 Raisa Valeryanovna CHERNYKH 02/10/1956 Krasnyy Luch Krasnyy Luch Court, 13/07/2005 41456/11 24/06/2011 Alla Borisovna CHEREMKA 19/05/1963 Vakhrusheve Krasnyy Luch Court, 16/05/2005. 41712/11 02/07/2011 Petro Valentynovych GRYGORYEV 04/12/1932 Kyiv Dniprovskyy District Court of Kyiv, 25/02/2010 42261/11 21/06/2011 Igor Volodymyrovych STRIGIN 30/07/1959 Oleksandriya 1) Oleksandriya Court, 21/05/2009 2) Oleksandriya Court, 21/05/2009 42266/11 03/06/2011 Igor Yaroslavovych STEFANIV 25/10/1967 Kremenchuk 1) Avtozavodskyy District Court of Kremenchuk, 01/10/2008 2) Avtozavodskyy District Court of Kremenchuk, 13/01/2010 42270/11 01/07/2011 Ivan Ananiyovych YARMAK 28/09/1938 Kyiv Fastiv Court, 06/03/2008 42272/11 01/07/2011 Oleksandr Petrovych MYKHAYLENKO 21/10/1946 Markhalivka Fastiv Court, 05/03/2008 42316/11 01/07/2011 Oleksandr Ivanovych GURYANOV 23/03/1934 Kyiv Fastiv Court, 18/03/2008 42322/11 01/07/2011 Gennadiy Grygorovych SAMKO 09/10/1936 Kyiv Fastiv Court, 06/03/2008, quashed by the Kyiv Administrative Court of Appeal on 02/07/2013 42709/11 05/07/2011 Oleksandr Volodymyrovych KOZLOV 16/04/1927 Zhytomyr Zhytomyr Circuit Administrative Court, 15/10/2007 42722/11 09/06/2011 Mykola Ivanovych KUZUB 06/03/1950 Kyiv Kyiv City Court of Appeal, 25/08/2010 43118/11 05/07/2011 Vasyl Stepanovych DEMENTIYENKO 27/10/1927 Zhytomyr Zhytomyr Circuit Administrative Court, 15/10/2007 43123/11 01/07/2011 Vitaliy Mykolayovych SVITANKO 15/11/1980 Kyiv 1) Krasnyy Luch Court, 03/11/2005 2) Krasnyy Luch Court, 24/03/2006 43767/11 02/07/2011 Vladimir Ilyich KOLESNYK 21/09/1948 Konotop Konotop Court, 26/11/2007, as amended by the Kharkiv Administrative Court of Appeal on 09/12/2008 44417/11 13/07/2011 Alla Vasylivna SOLOMKA 25/11/1973 Sarny Rivne Circuit Administrative Court, 20/08/2008 44653/11 13/07/2011 ENERGO, PAT Manevychi Volyn Regional Commercial Court, 10/01/2005 44675/11 07/07/2011 Roman Ivanovych LAZARCHUK 21/08/1969 Energodar Energodar Court, 02/06/2010 44687/11 08/07/2011 Olena Volodymyrivna DAVYDENKO 08/03/1980 Bilgorodka Kyevo-Svyatoshynskyy District Court of the Kyiv Region, 06/07/2009 44694/11 07/07/2011 Tetyana Moyseyivna MELNYK 16/03/1942 Odesa Odesa Regional Court of Appeal, 06/06/2007 44845/11 04/07/2011 Igor Viktorovych NABATCHYKOV 12/04/1961 Zhytomyr Zhytomyr Circuit Administrative Court, 27/02/2009 44956/11 01/07/2011 Yuriy Ivanovich DAVYDENKO 25/10/1968 Konotop Konotop Court, 21/01/2009 45016/11 06/07/2011 Tamara Prokopivna REDKINA 18/04/1936 Bobrovytsya Bobrovytsya Court, 27/02/2002 45073/11 05/07/2011 Sergey Vitalyevich UGRYUMOV 11/10/1960 Konotop Konotop Court, 28/07/2010 45089/11 13/07/2011 Semen Danylovych USENKO 21/09/1940 Zhytomyr Bogunskyy District Court of Zhytomyr, 26/04/2010 45110/11 15/07/2011 Mariya Mykolayivna LOZIVSKA 26/01/1944 Ploske 1) Tarashcha Court, 17/06/2008 2) Tarashcha Court, 17/06/2008 45672/11 12/07/2011 Sergey Vladimirovich SEMAKIN 02/04/1958 Oleksandriya Oleksandriya Court, 20/12/2007, as amended by the Dnipropetrovsk Administrative Court of Appeal on 04/11/2008 45681/11 04/05/2011 Vladimir Ivanovich BATLUK 01/10/1949 Konotop Konotop Court, 26/01/2009 45729/11 13/07/2011 Olena Mykhaylivna MYKHAYLYTSKA 17/09/1975 Sarny Rivne Circuit Administrative Court, 20/08/2008 45885/11 08/07/2011 Andriy Dmytrovych DZIKUNSKYY 01/01/1954 Tetiyiv Tetiyiv Court , 26/11/2007 46157/11 15/07/2011 Yuriy Valeriyovych POLISHCHUK 01/01/1985 Tetiyiv Tetiyiv Court, 26/11/2007 46328/11 08/07/2011 Vitaliy Viktorovych GUSYEV 11/03/1961 Novograd-Volynskyy 1) Zhytomyr Circuit Administrative Court, 07/08/2007 2) Zhytomyr Circuit Administrative Court, 15/08/2007 46450/11 17/06/2011 Ivan Semenovych BOYKO 02/04/1931 Khmelnytskyy Ida Sergiyivna FEDYAYEVA 17/10/1926 Khmelnytskyy Khmelnytskyy Circuit Administrative Court, 01/12/2008 46655/11 19/07/2011 Vitaliy Mykolayovych DATSKO 08/03/1969 Kalynivka Zamostyanskyy District Court of Vinnytsya, 07/12/2006 46843/11 22/07/2011 Petro Andriyovych OSYKA 01/01/1958 Sofipol Tetyiv Court, 29/11/2007 47231/11 20/07/2011 Sergiy Grygorovych SHLYAKHTYCHENKO 01/01/1965 Tetiyiv Tetiyiv Court, 06/02/2008 47388/11 21/07/2011 Yuriy Grygorovych CHUZHA 07/01/1952 Uzhgorod 1) Uzhgorod Court, 01/03/2007 2) Uzhgorod Court, 14/05/2007 47472/11 25/06/2011 Nina Petrivna MOZGOVA 19/01/1947 Svitlovodsk Svitlovodsk Court, 04/10/2007 47629/11 25/07/2011 Oksana Anatoliyivna SOBOLEVSKA 15/01/1978 Poltava Poltava Regional Court of Appeal, 31/08/2010 47792/11 22/07/2011 Lyubov Pavlovna GURSKAYA 31/10/1953 Kostyantynivka Kostyantynivka Court, 23/11/2004 47873/11 22/07/2011 Andrey Aleksandrovich FILATOV 23/12/1980 Kostyantynivka Kostyantynivka Court, 03/03/2003 47887/11 22/07/2011 Irina Aleksandrovna KOLESNIKOVA 17/03/1979 Illicha Labour Disputes Commission of “Zavod Avtosklo", State Enterprise, 19/03/2001 47899/11 22/07/2011 Lyubov Vladimirovna LUKINA 04/06/1948 Kostyantynivka Kostyantynivka Court, 17/09/2002 47910/11 22/07/2011 Yelena Vladimirovna TOLOKONINA 05/07/1958 Kostyantynivka Kostyantynivka Court, 18/02/2002 47921/11 22/07/2011 Irina Viktorovna SVINTSOVA 03/05/1974 Kostyantynivka Kostyantynivka Court, 19/11/2004 47932/11 22/07/2011 Viktoriya Petrovna MIROSHNICHENKO 24/04/1972 Kostyantynivka Kostyantynivka Court, 05/04/2001 47979/11 22/07/2011 Valeriy Fedorovich SHOSTAK 17/03/1955 Kostyantynivka Kostyantynivka Court, 15/06/2001 48008/11 22/07/2011 Olga Petrovna KRASILINA 20/04/1957 Kostyantynivka 1) Kostyantynivka Court, 08/04/2003 2) Kostyantynivka Court, 08/04/2003 48042/11 22/07/2011 Nikolay Naumovich TOPCHIY 08/08/1935 Kostyantynivka Kostyantynivka Court, 27/02/1998 48059/11 22/07/2011 Mikhail Kuzmich PAVLISHCHEV 19/02/1947 Kostyantynivka Kostyantynivka Court, 21/06/2001 48080/11 22/07/2011 Irina Mikhaylovna KOZUB 26/09/1961 Kostyantynivka Kostyantynivka Court, 30/10/2001 48109/11 22/07/2011 Natalya Vasilyevna ALTUKHOVA 08/03/1957 Kostyantynivka 1) Labour Disputes Commission of “Zavod Avtosklo", State Enterprise, 1997 2) Labour Disputes Commission of “Zavod Avtosklo", State Enterprise, 2001 48121/11 22/07/2011 Irina Anatolyevna KAVERINA 02/12/1967 Kostyantynivka Kostyantynivka Court, 30/03/2001 48148/11 22/07/2011 Inna Viktorovna BONDYUK 17/10/1977 Kostyantynivka Kostyantynivka Court, 25/01/2001 48156/11 22/07/2011 Natalya Sergeyevna KANDYBKA 25/06/1963 Kostyantynivka Kostyantynivka Court, 18/02/2002 48162/11 23/07/2011 Viktor Nikolayevich GAYVORONSKIY 15/09/1949 Vakhrusheve 1) Krasnyy Luch Court, 26/10/2009 2) Krasnyy Luch Court, 26/10/2009 3) Krasnyy Luch Court, 26/10/2009 48167/11 08/07/2011 Pavlo Mykhaylovych LYTVYN 08/06/1961 Chernigiv Chernigiv Circuit Administrative Court, 14/07/2008 48204/11 22/07/2011 Yelena Viktorovna ANENKOVA 08/10/1960 Kostyantynivka Kostyantynivka Court, 27/12/2002 48218/11 22/07/2011 Lyudmila Mikhaylovna DROKINA 28/12/1946 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Enterprise, 1998 2) Labour Disputes Commission of “Zavod Avtosklo", State Enterprise, 2001 48280/11 22/07/2011 Oleg Aleksandrovich MAKEYEV 30/07/1941 Kostyantynivka Kostyantynivka Court, 06/09/2002 48291/11 19/07/2011 Oksana Stepanivna ROMANYUK 28/01/1976 Sokal Sokal Court, 26/06/2009, as amended by judgment of Lviv Regional Administrative Court, 18/01/2011 48354/11 22/07/2011 Ivan Mikhaylovich CHEREVATENKO 01/06/1958 Kostyantynivka Labour Disputes Commission of “Zavod Avtosklo", State Enterprise, 2001 50547/11 05/08/2011 Sergiy Anatoliyovych SEMENCHENKO 09/05/1961 Lugansk 1) Artemivskyy District Court of Lugansk, 21/11/2008 2) Artemivskyy District Court of Lugansk, 11/12/2008 53745/11 15/08/2011 Grygoriy Mykhaylovych TROYANOVSKYY 22/01/1957 Novoselytsya Khotyn Court, 10/08/2007 54166/11 12/07/2011 Alla Mykolayivna ZAVOROTNYA 30/09/1974 Svitlovodsk Svitlovodsk Court, 01/10/2010 54753/11 03/08/2011 Volodymyr Anatoliyovych CHICHIL 13/06/1962 Poltava Kyiv Circuit Administrative Court, 05/03/2010 54758/11 03/08/2011 Sergiy Yuriyovych MARTYEV 05/10/1960 Poltava Kyiv City Circuit Administrative Court, 01/03/2010, quashed by the same court on 08/10/2012 56282/11 30/08/2011 Anatoliy Anatolyevich AZARDOVICH 26/12/1958 Simferopol Zaliznychnyy District Court of Simferopol, 30/10/2007, as amended by the Higher Administrative Court of Ukraine on 09/02/2012 59128/11 29/08/2011 Oleksandr Mykolayovych KVASHA 01/01/1964 Tetiyiv Tetiyiv Court, 06/12/2007 59135/11 12/09/2011 Lyudmyla Volodymyrivna REDCHYTS 29/12/1979 Gunychi Ovruch Court, 02/11/2009 59154/11 12/09/2011 Kseniya Volodymyrivna KOVALCHUK 19/09/1975 Zarichchya Ovruch Court, 09/12/2009 59259/11 14/09/2011 Lyudmyla Fedorivna PASYUK 24/12/1970 Ovruch Ovruch Court, 25/05/2009 59277/11 15/09/2011 Mykhaylo Ivanovych YEGORCHENKOV 11/02/1957 Donetsk 1) Kuybyshevskyy District Court of Donetsk, 29/05/2009 2) Kuybyshevskyy District Court of Donetsk, 17/08/2010 59340/11 09/09/2011 Volodymyr Dorofiyovych ZAGORUYKO 01/01/1951 Tetiyiv Tetiyiv Court, 06/12/2007 59394/11 13/09/2011 Oleksandr Ivanovych TYMOSHENKO 03/08/1962 Vasylkiv Vasylkiv Court 20/12/2010 59545/11 14/09/2011 Tofilya Petrivna KOBERSKA 22/01/1956 Shumsk 1) Lviv Administrative Court of Appeal of 23/02/2009, as amended by judgment of the Higher Administrative Court of 30/09/2009 2) Lviv Administrative Court of Appeal, 15/09/2011 59579/11 10/09/2011 Volodymyr Yuriyovych MELNYK 23/02/1934 Kyiv Solomyanskyy District Court of Kyiv, 09/11/2009 59592/11 13/09/2011 Galyna Gavrylivna SAVENKO 03/01/1938 Shchaslyve Boryspil Court, 18/12/2007 60160/11 17/09/2011 Vasyl Vasylyovych BURKO 13/08/1957 Derevnya Chervonograd Court, 04/11/2005 61240/11 01/09/2011 Vladimir Leonidovich GRISHANKOV 15/01/1956 Dniprodzerzhynsk Dniprovskyy District Court of Dniprodzerzhynsk, 12/10/2010 61260/11 22/09/2011 Mykola Yevdokymovych BUZYNOVSKYY 14/06/1940 Tarashcha Tarashcha Court, 13/02/2008 62605/11 27/09/2011 Volodymyr Oleksiyovych KROKHMAL 01/01/1951 Tetiyiv Tetiyiv Court, 26/11/2007 62840/11 28/09/2011 Vladimir Nikolayevich KISHKINOV 11/02/1956 Kryvyy Rig Shyroke Court of Dnipropetrovsk Region, 22/07/2010 62866/11 27/09/2011 Sergey Leonidovich BOBROV 14/03/1958 Ovruch Ovruch Court, 02/09/2009 62991/11 21/09/2011 Ivan Ivanovych VOLYK 06/10/1949 Zaporizhzhya Komunarskyy District Court of Zaporizhzhya, 03/02/2006 63044/11 19/09/2011 Semen Nikolayevich KAPSHUK 16/06/1958 Dezgmyzha Bolgrad Court, 18/08/2006 63112/11 23/09/2011 Oleksandr Viktorovych KORNUS 15/05/1967 Gorodyshche Kyiv Administrative Court of Appeal, 02/02/2010 63514/11 21/09/2011 Oleksandr Volodymyrovych KUZNETSOV 01/01/1938 Tetiyiv Tetiyiv Court, 29/11/2007 63788/11 30/09/2011 Gasanag Guseyn Ogly AGAYEV 02/07/1957 Debaltseve 1) Debaltseve Court, 16/07/2002 2) Debaltseve Cour, 21/03/2008 63999/11 15/09/2011 Volodymyr Mykhaylovych BARANOVSKYY 11/02/1958 Ovruch Zhytomyr Circuit Administrative Court, 30/07/208 64002/11 16/09/2011 Galyna Ivanivna BARANOVSKA 27/05/1961 Ovruch Zhytomyr Circuit Administrative Court, 30/07/2008 64008/11 04/10/2011 Natalya Sergeyevna BOBROVA 13/08/1958 Ovruch 1) Ovruch Court of Zhytomyr Region, 24/03/2010 2) Ovruch Court, 02/09/2009 64074/11 30/09/2011 Viktor Nikolayevich PAVLICHENKO 26/04/1953 Sevastopol 1) Leninskyy District Court of Sevastopol, 9/12/2008 2) Leninskyy District Court of Sevastopol, 16/12/2008 3) Leninskyy District Court of Sevastopol, 6/07/2009 64346/11 22/09/2011 Sergey Mikhaylovich SHESHKIN 14/12/1969 Donetsk Proletarskyy District Court of Donetsk, 19/11/2008 64767/11 22/09/2011 Valeriy Andriyovych KOZHYN 16/08/1962 Zhytomyr Nina Gavrylivna KRASNOKUTSKA 24/04/1951 Zhytomyr 1st applicant: 1) Bogunskyy District Court of Zhytomyr, 22/03/2010 2nd applicant: 2) Bogunskyy District Court of Zhytomyr, 18/03/2010 both applicants 3) Bogunskyy District Court of Zhytomyr, 15/11/2010 both applicants 4) Bogunskyy District Court of Zhytomyr, 15/06/2011 65863/11 29/09/2011 Nikolay Mikhaylovich DYMCHENKO 03/02/1956 Vakhrusheve Krasnyy Luch Court, 16/05/2005 66389/11 20/09/2011 Mykhaylo Ivanovych MAGUSHYNETS 20/11/1933 Makariv Makarivka Court of Kyiv Region, 31/05/2010 66429/11 18/10/2011 Oleksandr Oleksandrovych POLISHCHUK 31/05/1952 Tarashcha 1) Tarashcha Court,13/12/2007 2) Tarashcha Court, 28/05/2010 66538/11 18/10/2011 Ganna Oleksandrivna POLISHCHUK 05/03/1923 Tarashcha 1) Tarashcha Court,18/01/2008 2) Tarashcha Court, 31/05/2010 66648/11 13/10/2011 Viktor Gotgoldovych GAUS 18/08/1951 Kramatorsk Kramatorsk Court, 29/04/2009 66650/11 13/10/2011 Volodymyr Ivanovych SHESTAKOV 03/01/1959 Kramatorsk Kramatorsk Court, 28/05/2009 66672/11 18/10/2011 Olga Matviyivna MAKAROVA 10/07/1925 Novograd-Volynskyy Zhytomyr Circuit Administrative Court, 11/09/2008 66704/11 14/10/2011 Anatoliy Mykolayovych LEVKIVSKYY 07/11/1959 Levkovychi Ovruch Court, 29/10/2010 66715/11 14/10/2011 Mykola Leonidovych SHVAB 21/09/1961 Poliske 1) Ovruch Court, 11/08/2009 2) Ovruch Court, 16/09/2010 66842/11 29/09/2011 Valentina Anatolyevna PUKHALSKAYA 05/12/1957 Knyagynivka Krasnyy Luch Court, 18/07/2005 66850/11 29/09/2011 Yelena Gennadyevna KOROVINA 23/06/1977 Vakhrusheve Krasnyy Luch Court, 01/06/2005 66903/11 29/09/2011 Natalya Borisovna MIROSHNICHENKO 13/02/1971 Knyagynivka Krasnyy Luch Court, 11/10/2007 66923/11 06/10/2011 Sergey Mikhaylovich BORISENKO 07/04/1976 Vakhrusheve Krasnyy Luch Court, 16/06/2005 66933/11 06/10/2011 Andrey Vasilyevich IVANOV 25/10/1972 Vakhrusheve Krasnyy Luch Court, 16/05/2005 66961/11 24/05/2011 Nikolay Andreyevich ZAKHARENKO 13/12/1946 Artemivsk 1) Donetsk Regional Court of Appeal, 20/08/2010 2) Artemivsk Court, 02/09/2010 67391/11 20/09/2011 Sergiy Matviyovych KOVALCHUK 07/11/1962 Gorodets Ovruch Court, 23/07/2010 67396/11 20/09/2011 Leonid Romanovych ROSLYK 21/09/1967 Bigun Ovruch Court, 15/05/2009 67399/11 20/09/2011 Tamara Mykhaylivna ROSLYK 03/10/1968 Bigun Ovruch Court, 15/05/2009 67769/11 24/10/2011 Georgiy Lukych KRAMCHANYN 17/09/1955 Ovruch Ovruch Court, 07/07/2009 67774/11 24/10/2011 Olga 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20/12/2007 70004/11 31/10/2011 Volodymyr Orestovych GORNYTSKYY 12/05/1944 Sambir Sambir Court, 05/06/1996 70021/11 04/11/2011 Vera Nikolayevna IVAKINA 13/10/1952 Lugansk Donetsk Administrative Court of Appeal, 13/03/2009 70084/11 04/11/2011 Sergey Nikolayevich SHARYY 30/11/1969 Lugansk Lugansk Circuit Administrative Court, 16/04/2009 70156/11 01/11/2011 Alla Aleksandrovna GOLODNYUK 01/01/1963 Kripenske Lugansk Regional Court of Appeal, 13/12/2010 70369/11 04/11/2011 Boris Anatolyevich SHUKAYEV 15/05/1962 Chervonopartyzansk 1) Sverdlovsk Court, 6/05/2008 2) Sverdlovsk Court, 16/04/2009 70432/11 28/10/2011 Yuriy Vasylyovych FEDOROV 19/08/1939 Khmelnytskyy Khmelnytskyy Court, 10/04/2009 70436/11 01/11/2011 Nina Semenovna SHYBALKINA 01/01/1948 Krasnyy Luch Krasnyy Luch Court, 30/04/2010 70472/11 04/11/2011 Oleg Gennadiyovych KYSELYOV 24/10/1964 Simferopol Zheleznodorozhnyy District Court of Simferopol, 19/01/2005 70503/11 01/11/2011 Nikolay Stepanovich TUPAKHIN 18/04/1957 Lugansk 1) 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Administrative Court, 13/11/2008 as amended by the Kyiv Administrative Court of Appeal on 22/12/2009 76530/11 05/12/2011 Galyna Petrivna PYLYPCHUK 24/11/1951 Ovruch Ovruch Court, 15/09/2010 76611/11 05/12/2011 Anatoliy Ivanovych ALYEYNIKOV 15/11/1937 Lugansk Leninskyy District Court of Lugansk, 04/11/2009 76773/11 07/12/2011 Nataliya Mykolayivna KOVTUNOVYCH 24/10/1964 Ovruch 1) Zhytomyr Circuit Administrative Court, 05/03/2009 2) Ovruch Court, 16/08/2010 76821/11 03/12/2011 Yuriy Andriyovych TITOV 08/09/1951 Shyrokyy Lugansk Circuit Administrative Court, 05/09/2008 77089/11 01/12/2011 Vera Konstantinovna PAPUSH 20/02/1942 Mariupol Zhovtnevyy District Court of Mariupol, 31/08/2010 77108/11 08/12/2011 Vasyl Oleksandrovych SAVCHUK 19/10/1974 Lystvyn Ovruch Court, 23/02/2010 77132/11 29/11/2011 Volodymyr Gnatovych KHALEPA 26/07/1947 Novograd-Volynskyy 1) Zhytomyr Circuit Administrative Court, 13/03/2008 2) Zhytomyr Circuit Administrative Court, 14/08/2008 77147/11 06/12/2011 Vitaliy Mykolayovych VASYANOVYCH 19/09/1976 Korosten 1) Korosten Court, 23/12/2009 2) Korosten Court, 26/02/2010 3) Korosten Court, 25/05/2010 77325/11 06/12/2011 Lidiya Opanasivna YEGOROVA 30/09/1958 Kaniv 1) Kaniv Court, 04/02/2008 2) Kaniv Court, 24/03/2008 3) Kaniv Court, 28/12/2009 4) Kaniv Court, 18/04/2011 77535/11 07/12/2011 Tamara Viktorovna KRIVONOS 01/01/1938 Sevastopol Sevastopol Circuit Administrative Court, 27/01/2010 77536/11 28/11/2011 Volodymyr Vitsentiyovych YUZEFOVYCH 28/03/1971 Kyiv Shevchenkivskyy District Court of Kyiv, 19/02/2010 77543/11 08/12/2011 Leonid Yuriyovych KOTSERUBA 27/04/1959 Orativ Vinnytsya Circuit Administrative Court, 17/08/2007 78821/11 09/12/2011 Yevgena Dmytrivna VASYLYEVA 07/11/1926 Khmelnytskyy Khmelnytskyy Court, 05/12/2008 78914/11 09/12/2011 Igor Yaroslavovych SHEVCHENKO 16/04/1964 Drogobych 1) Drogobych Court, 16/03/2006 2) Drogobych Court, 29/12/2010 2643/12 21/12/2011 Lidiya Mykolayivna MOGYLEVETS 05/10/1957 Ovruch Ovruch Court, 17/02/2009 23972/12 19/04/2012 Vasyl Semenovych POTAPCHUK 26/06/1951 Vasyshcheve 1) Kharkiv District Court of Kharkiv Region, 20/04/2010 2) Kharkiv District Court of Kharkiv Region, 31/05/2011 3) Kharkiv District Court of Kharkiv Region, 30/09/2011 24061/12 12/04/2012 Oleksandr Pavlovych GRYGORENKO 12/04/1958 Zaporizhzhya Leninskyy District Court of Zaporizhzhya, 28/01/2011 27160/12 29/04/2012 Lyubov Ivanivna KOSTENKO 04/06/1950 Tarashcha Tarashcha Court, 31/08/2010 28170/12 25/04/2012 Oleksandr Petrovych TRETYAK 23/04/1960 Svitlovodsk Svitlovodsk Court, 30/07/2009, as amended by the same court on 30/11/2009 11635/13 07/07/2009 Nadiya Volodymyrivna PARKHOMENKO 10/05/1954 Nova Kakhovka Nova Kakhovka Court, 23/04/2008 APPENDIX 2 (inadmissible applications) APPENDIX 2 (inadmissible applications) No. Application no. and date of introduction Applicant name date of birth place of residence Relevant domestic decision 25461/10 19/03/2010 Oleksandr Ivanovych BEREZA 27/08/1956 Vinnytsya Zamostyanskyy District Court of Vinnytsya, 25/09/2009 32650/11 03/05/2011 Petro Grygorovych KONVISAROV 09/05/1947 Vinnytsya Vinnytsya Circuit Administrative Court, 14/12/2009 38898/11 15/06/2011 Yuriy Mykolayovych KYSELYOV 27/11/1962 Starokostyantyniv Zamostyanskyy District Court of Vinnytsya, 11/12/2006 42826/11 04/07/2011 Ganna Pavlivna IVAKHNO 28/02/1941 Yagotyn Yagotyn Court, 04/02/2010 43547/11 07/07/2011 Bogdan Mykhaylovych YAROTSKYY 27/02/1956 Ostriv Sokal Court, 03/09/2009, as amended by the Lviv Regional Court of Appeal on 16/02/2010 45331/11 09/07/2011 Tetyana Volodymyrivna LYSENKO 11/12/1981 Sosnivka Chervonograd Court, 10/08/2009 66805/11 24/10/2011 Valeriy Ivanovych SOYMIN 14/04/1953 Kharkiv Leninskyy District Court of Lugansk, 5/01/2005 71028/11 10/11/2011 Alena Ivanovna TOKARYUK 05/02/1985 Odesa Odesa Circuit Administrative Court, 10/07/2009, as amended by the Odesa Administrative Court of Appeal on 28/04/2010 75042/11 26/11/2011 Vladimir Yevdokimovich GAPON 19/03/1936 Zaporizhzhya Ordzhonikidzevskyy District Court of Zaporizhzhya, 30/12/2010

Judgments - Her Majesty's Revenue and Customs (Respondents) v Stringer and others (Appellants) HOUSE OF LORDS SESSION 2008-09 [2009] UKHL 31 on appeal from: [2005] EWCA Civ 441 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Her Majesty's Revenue and Customs (Respondents) v Stringer and others (Appellants) Appellate Committee Lord Hope of Craighead Lord Rodger of Earlsferry Lord Walker of Gestingthorpe Lord Brown of Eaton-under-Heywood Lord Neuberger of Abbotsbury Counsel Appellants: Christopher Jeans QC Michael Ford (Instructed by Thompsons) Respondents: John Cavanagh QC Adam Tolley (Instructed by Inland Revenue Solicitors Office) Hearing date: 30 OCTOBER 2006 and 30 APRIL 2009 ON WEDNESDAY 10 JUNE 2009 HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Her Majesty's Revenue and Customs (Respondents) v Stringer and others (Appellants) [2009] UKHL 31 LORD HOPE OF CRAIGHEAD My Lords, I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury. I agree with them, and for the reasons they give I would allow the appeals, set aside the order of the Court of Appeal and restore the order of the Employment Appeal Tribunal. LORD RODGER OF EARLSFERRY My Lords, The appellant, Mr Keith Ainsworth, complains that his former employers, Her Majesty's Revenue and Customs ("the Revenue"), wrongly made a deduction from his wages. Workers have been making complaints of this kind for centuries. More surprisingly, perhaps, for centuries also, the legislature used the Truck Acts to try to prevent employers from making arbitrary deductions - for example, for errors or misconduct - which would deprive the workers of the substance of their earnings. The case law on the subject was not always consistent and eventually Parliament passed the Truck Act 1896 which prescribed what deductions were permissible and in what circumstances. The long history of the legislation is conveniently set out in the speech of Lord Ackner in Bristow v City Petroleum [1987] 1 WLR 529, 532-535. Bristow was the last case to be heard by this House under the Truck Acts for, by the second half of the twentieth century, it was widely recognised that the legislation needed to be updated. The existing Acts were therefore repealed and replaced by Part I of the Wages Act 1986. In 1996 Part I was re-enacted as Part II of the Employment Rights Act 1996 ("the 1996 Act"). The 1996 Act was a consolidation Act, which was passed on 22 May 1996 and came into force three months later. Although the current legislation is modern, Parliament remains concerned to regulate the deductions which employers are entitled to make from an employee's wages. Section 13(1) of the 1996 Act accordingly provides: "An employer shall not make a deduction from wages of a worker employed by him unless - (a)  the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b)  the worker has previously signified in writing his agreement or consent to the making of the deduction." Subsection (3) then goes on to explain what can count as a deduction from wages: "(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion." By subsection (4), subsection (3) does not apply to a deficiency which is simply due to an error in computing the gross amount of the wages properly payable. Subject to subsection (4), any failure by an employer to pay any amount of wages properly payable to an employee amounts to a deduction from his wages for the purposes of section 13(1): Delaney v Staples [1991] IRLR 112, 113-115, paras 1-15, per Nicholls LJ. If a worker considers that his employer has made a deduction from his wages in contravention of section 13, he is entitled to complain to an employment tribunal: section 23(1)(a). Section 23(2) contains a time-limit of three months for presenting such a complaint. But subsection (4) allows the tribunal to consider a complaint presented within a reasonable time after that period if it is satisfied that it had not been reasonably practicable for the complaint to be presented within the three-month period. In addition, section 23(3) allows a complaint in respect of a series of alleged deductions to be made within three months of the last deduction in the series. For reasons which will be fully explained in the speech of my noble and learned friend, Lord Walker of Gestingthorpe, Mr Ainsworth complains that the total amount of wages paid by the Revenue to him in November 2002 was less than the total amount of the wages properly payable to him at that time. He argues that, because he was paid less than he was due, the Revenue was in breach of section 13(1). He therefore made an application to his local employment tribunal on 9 January 2003, one stated basis for his complaint being "unlawful deduction from wages". That was an application in terms of section 23(1)(a) and it was brought within the three-month period allowed by section 23(2). Mr Ainsworth also specified another basis for his application. I must come back to that. Section 13(1) of the 1996 Act applies only to deductions from "wages". The contention for the Revenue is that the sum in question - which concerns holiday pay - does not count as "wages". More particularly, they argue that it does not fall within the definition of "wages" in section 27(1) and (2) of the 1996 Act: "(1) In this Part "wages", in relation to a worker, means any sums payable to the worker in connection with his employment, including— (a)  any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise, (b)  statutory sick pay under Part XI of the Social Security Contributions and Benefits Act 1992, (c)  statutory maternity pay under Part XII of that Act, (ca)  statutory paternity pay under Part 12ZA of that Act, (cb)  statutory adoption pay under Part 12ZB of that Act, (d)  a guarantee payment (under section 28 of this Act), (e)  any payment for time off under Part VI of this Act or section 169 of the Trade Union and Labour Relations (Consolidation) Act 1992 (payment for time off for carrying out trade union duties etc.), (f)  remuneration on suspension on medical grounds under section 64 of this Act and remuneration on suspension on maternity grounds under section 68 of this Act, (g)  any sum payable in pursuance of an order for reinstatement or re-engagement under section 113 of this Act, (h)  any sum payable in pursuance of an order for the continuation of a contract of employment under section 130 of this Act or section 164 of the Trade Union and Labour Relations (Consolidation) Act 1992, and (j)  remuneration under a protective award under section 189 of that Act, but excluding any payments within subsection (2). (2) Those payments are— (a)  any payment by way of an advance under an agreement for a loan or by way of an advance of wages (but without prejudice to the application of section 13 to any deduction made from the worker's wages in respect of any such advance), (b)  any payment in respect of expenses incurred by the worker in carrying out his employment, (c)  any payment by way of a pension, allowance or gratuity in connection with the worker's retirement or as compensation for loss of office, (d)  any payment referable to the worker's redundancy, and (e)  any payment to the worker otherwise than in his capacity as a worker." If the Revenue's contention is correct, Mr Ainsworth has no remedy under the 1996 Act. That does not mean, of course, that he or any worker in a similar position is without a remedy. It just means that his remedy must be found elsewhere, viz under the Working Time Regulations 1998 ("the 1998 Regulations") which confer the statutory right to holiday pay that Mr Ainsworth is claiming. The origin of the 1998 Regulations lies in Council Directive 93/104/EC of 23 November 1993, concerning certain aspects of the organisation of working time. The directive, the policy of which was opposed by the British Government, was adopted under article 118a of the Treaty establishing the European Community. That article provided that Member States are to pay particular attention to encouraging improvements, especially in the working environment, as regards the health and safety of workers. Measures under it could be adopted by Qualified Majority Voting under article 189c. The then Government considered that the directive did not fall within the scope of article 118a. It should have been adopted, the Government contended, on the basis of article 100 or article 235 - both of which required a unanimous vote of the Council. The challenge to the validity of the directive on this, and certain other, grounds, failed, except in one minor respect. The European Court of Justice gave judgment upholding the directive on 12 November 1996: United Kingdom v Council of the European Union (Case C-84/94) [1997] ICR 443. The time for transposing the directive into national law expired ten days later, on 23 November 1996. In fact, the 1998 Regulations, which effected the transposition, did not come into force until 1 October 1998. The 1993 directive was replaced by Council Directive 2003/88/EC of 4 November 2003, concerning certain aspects of the organisation of working time, but that change has no practical importance for the present dispute. Article 7 of the 1993 Directive, which is identical to article 7 of the 2003 Directive, provided: "1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice. 2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated." Article 7(1) was transposed into the law of Great Britain in regulations 13 and 16 of the 1998 Regulations, while article 7(2) was transposed in regulations 13(9)(b) and 14. Article 7(1) is designed to ensure that every worker is entitled to at least four weeks' annual leave (regulation 13) and that he is paid while he is on leave (regulation 14). Article 7(2) first makes it plain that, ordinarily, an employer cannot avoid the obligation to give his workers paid annual leave by paying them an allowance in lieu of leave (regulation 13(9)(b)). This reflects the underlying philosophy of the directive, that it is necessary for the health and safety of workers that they should have a minimum entitlement to leave and that they should be paid so that they are in a position to take it. See, for instance, Robinson-Steele v RD Retail Services Ltd (Cases C-131 and 257/04) [2006] ICR 932, 958, paras 48-50, and p 959, para 58. Article 7(2) makes an exception, however, and permits, indeed requires, an allowance in lieu of annual leave to be paid where the worker's employment comes to an end at a stage when he has not taken his leave, or part of his leave, for that year. Since the worker is no longer employed, he cannot, of course, take the annual leave in question, but article 7(2) gives him a right to an allowance in lieu of the leave. The directive left it to Member States to give effect to that right in a way that fitted the scheme of their employment legislation. But the Court of Justice spelled out the basic requirements of article 7(2) in its decision on the reference in these proceedings: Schultz-Hoff v Deutsche Rentenversicherung Bund; Stringer v Her Majesty's Revenue and Customs (Cases C-350/06 and C-520-06), paras 60 and 61: "60 According to the case-law of the Court, Directive 2003/88 treats entitlement to annual leave and to a payment on that account as being two aspects of a single right. The purpose of the requirement of payment for that leave is to put the worker, during such leave, in a position which is, as regards remuneration, comparable to periods of work (see Robinson-Steele and Others, paragraph 58). 61 It follows that, with regard to a worker who has not been able, for reasons beyond his control, to exercise his right to paid annual leave before termination of the employment relationship, the allowance in lieu to which he is entitled must be calculated so that the worker is put in a position comparable to that he would have been in had he exercised that right during his employment relationship. It follows that the worker's normal remuneration, which is that which must be maintained during the rest period corresponding to the paid annual leave, is also decisive as regards the calculation of the allowance in lieu of annual leave not taken by the end of the employment relationship." The aspect of article 7(2) which gives a worker an entitlement to an allowance in lieu of leave at the end of his employment was transposed into British law as regulation 14 of the 1998 Regulations: "(1) This regulation applies where— (a) a worker's employment is terminated during the course of his leave year, and (b) on the date on which the termination takes effect ('the termination date'), the proportion he has taken of the leave to which he is entitled in the leave year under regulation 13(1) differs from the proportion of the leave year which has expired. (2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3). (3) The payment due under paragraph (2) shall be— (a) such sum as may be provided for the purposes of this regulation in a relevant agreement, or (b)   where there are no provisions of a relevant agreement which apply, a sum equal to the amount that would be due to the worker under regulation 16 in respect of a period of leave determined according to the formula— (A x B) - C where—A is the period of leave to which the worker is entitled under regulation 13(1); B is the proportion of the worker's leave year which expired before the termination date, and C is the period of leave taken by the worker between the start of the leave year and the termination date. (4) A relevant agreement may provide that, where the proportion of leave taken by the worker exceeds the proportion of the leave year which has expired, he shall compensate his employer, whether by a payment, by undertaking additional work or otherwise." The formula in regulation 14(3) is straightforward: in effect, the worker receives a proportion of the total amount of pay relating to his annual leave that corresponds to the proportion of the leave year for which the worker has been employed at the time his employment comes to an end. So, if he has worked for three months without taking leave, he gets a quarter of the total pay relating to his annual leave; if he has worked for six months, he gets half etc. Where the worker has already taken some leave, the payment in lieu is reduced accordingly. No criticism is made of the transposition. If a worker considers that his employer has failed to pay him any sum due under regulation 14(2), he can make an application to an employment tribunal under regulation 30(1)(b) of the Regulations: "A worker may present a complaint to an employment tribunal that his employer - … (b) has failed to pay him the whole or any part of any amount due to him under regulation 14(2) or 16(1)." Regulation 30(2) provides, however, that an employment tribunal is not to consider such a complaint unless it is presented within three months beginning with the date on which it is alleged that the exercise of the right should have been permitted, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months. These limits correspond to the limits in section 23(2) of the 1996 Act. But regulation 30 does not contain an equivalent of section 23(3), extending the time-limit where there has been a series of deductions. Mr Ainsworth was employed by the Revenue from 1976 until 4 November 2002 when his employment was terminated. From December 2000 he was absent from work due to sickness. His leave year ran from 1 November until 31 October and so, when his employment ended, he was just four days into his 2002-2003 leave year. He had not taken any leave during those four days. Mr Ainsworth therefore contended that, when his employment was terminated, under regulation 14(2) he was entitled to a payment in lieu of leave calculated by reference to those four days, in accordance with regulation 14(3). The Revenue declined to pay Mr Ainsworth any sum under regulation 14 because he had been off sick during the four days of the leave year. Therefore, in his application to the employment tribunal he included a complaint of a breach of the "Working Time Regulations". (He also complained of matters relating to earlier periods of employment, but those complaints are no longer live and are not relevant for present purposes.) The employment tribunal found in favour of Mr Ainsworth. The relevant part of their decision was that the Revenue "made an unauthorised deduction from the wages of the applicant by failing to make a payment representing holiday accrued and untaken upon the termination of his employment and the respondents are directed to pay the applicant the sum of £16.14." This was plainly a decision upholding Mr Ainsworth's complaint, under section 23 of the 1996 Act, of an unauthorised deduction from his wages, contrary to section 13(1). The Revenue now accept that, in the light of the ruling of the European Court of Justice, they were obliged by regulation 14(2) of the 1998 Regulations to pay Mr Ainsworth the sum in question. So, as they accept, he would have been entitled to succeed in his complaint brought under regulation 30 of the 1998 Regulations. The Revenue contend, however, that Mr Ainsworth was not entitled to make a complaint to the employment tribunal under section 23 of the 1996 Act and so the tribunal had no jurisdiction to make the order that they did. The Revenue argue that a payment under regulation 14 does not fall within the definition of "wages" in section 27 of the 1996 Act and so, even if an employer fails to pay such a sum, he does not make a deduction from "wages", contrary to section 13(1) of the Act. So Mr Ainsworth's only remedy was under regulation 30 of the 1998 Regulations. The Court of Appeal not only held that Mr Ainsworth was not entitled to any payment under regulation 14, but also upheld the contention for the Revenue that his only remedy for an alleged breach of regulation 14 was a complaint under regulation 30: [2005] ICR 1149, 1158-1159, paras 21-24. Mr Ainsworth appeals to this House. As already explained, the Revenue accept that Mr Ainsworth's appeal on his entitlement to a payment under regulation 14 must be allowed. And, actually, he himself gained nothing by presenting his complaint relating to the period from 1 to 4 November 2002 under section 23 of the 1996 Act as well as under regulation 30 of the 1998 Regulations. Not only was Mr Ainsworth's application in respect of that complaint lodged in time, but, in addition, it relates to a single deduction, rather than to a series of deductions - so he had no occasion to invoke any extended time-limit under section 23(3) for presenting his application. But the appellant's counsel, Mr Jeans QC, told the House that the decision of the Court of Appeal - that no complaint about a deduction of holiday pay due under the 1998 Regulations could be brought under section 23 of the 1996 Act - had led to successive applications being made to employment tribunals to avoid the time-limit in regulation 30, in relation to a series of deductions of payments allegedly due under regulation 16. The applicants were incurring unnecessary expense and the tribunal system was being cluttered up with unnecessary applications. But for the Court of Appeal's decision, the applicants in question could have relied on the extended time-limit in section 23(3) and made one application within three months of the last deduction in the series. On that narrative I accept that the point is one of practical importance which the House should decide. Since the time-limit was said to give rise to the practical issue behind this aspect of the appeal, counsel tended to come back to that aspect in their submissions. Naturally, Mr Jeans emphasised the inconvenience of the successive applications. For his part, Mr Cavanagh QC suggested that Parliament might have chosen not to include any sums due under regulation 14 or 16 in the definition of "wages" in section 27 of the 1996 Act in order to make sure that all complaints relating to holiday pay were brought promptly. I consider that it would be unwise, however, to concentrate on the time-limits. The real issue is much broader: whether a failure to pay sums due under regulations 14 and 16 of the 1998 Regulations is properly regarded as the kind of impermissible deduction from wages that Parliament wanted to prevent by enacting section 13 of the 1996 Act. If it is, then employees have the benefit of the system provided by the 1996 Act, which includes the extended time-limit in section 23(3). But if a failure to pay the sums is not properly regarded as this kind of impermissible deduction from wages, then employees have to content themselves with the provisions of the 1998 Regulations - including the shorter time-limit in regulation 30(2). The time-limits do not dictate the interpretation of the definition of "wages" in section 27; rather, the correct interpretation of "wages" determines which statutory régimes apply and, hence, which time-limits apply. So the case turns on the interpretation and application of section 27. Before turning to that section, a minor point which surfaced in the judgment of the Court of Appeal can be disposed of quickly. Section 205(2) of the 1996 Act provides that the remedy of a worker in respect of a contravention of section 13 is by way of a complaint under section 23 "and not otherwise". In something of a throwaway line, Maurice Kay LJ suggested, [2005] ICR 1149, 1159, para 24, that, if the failure to pay the sum due under regulation 14 could indeed be treated as a violation of section 13 of the 1996 Act, then the effect of section 205(2) would be that the only remedy for that failure would be under section 23. In other words, thus interpreted, the provision would prevent the worker from raising proceedings under regulation 30 of the 1998 Regulations. For the Revenue, Mr Cavanagh rightly accepted that the argument was fallacious. Section 205(2) simply prescribes that a complaint of a violation of section 13(1) must be made to an employment tribunal under section 23 - and not, for example, by proceedings in the ordinary civil courts. But if the aggrieved employee wishes to present his complaint simply as a failure by his employer to pay a sum due under regulation 14, nothing in section 205(2) prevents him from making that complaint under regulation 30. Section 205(2) is accordingly irrelevant for present purposes. Section 27 came before this House in Delaney v Staples [1992] 1 AC 687 where it was held that payments in lieu of notice, being payments relating to the termination of employment rather than to the provision of services by the employee, were not "wages" within the meaning of what is now section 27. Lord Browne-Wilkinson, who gave the only substantive speech, said, at p 692A-C, that it was important to approach the definition of "wages" in the section: "bearing in mind the normal meaning of that word. I agree with the Court of Appeal that the essential characteristic of wages is that they are consideration for work done or to be done under a contract of employment. If a payment is not referable to an obligation on the employee under a subsisting contract of employment to render his services it does not in my judgment fall within the ordinary meaning of the word 'wages'. It follows that if an employer terminates the employment (whether lawfully or not) any payment of wages in respect of the period after the date of such termination is not a payment of wages (in the ordinary meaning of that word) since the employee is not under obligation to render services during that period." Applying that approach, it seems to me that payment in respect of annual leave, as envisaged by regulation 16, is plainly part of the consideration which the employee receives in return for the work done, or to be done, under his contract of employment. So, leaving aside the express inclusions and exclusions, payment in respect of statutory annual leave falls to be regarded as coming within the normal meaning of the word "wages" in section 27. The payment which is due under regulation 14 is, at first sight at least, slightly different. The payment is described as a "payment in lieu of leave" and therefore has something of the flavour of compensation for leave not taken - the compensation taking the form of a liquidated sum calculated according to the formula in regulation 14(3). But, as the passage from the judgment of the European Court in these proceedings, quoted at para 12 above, suggests, the purpose of the payment is, in effect, to make sure that the worker whose employment is terminated and who cannot take the period of leave in question, at least receives the pay which he is due in respect of that leave. True enough, the right to the payment accrues only when the worker's employment has been terminated and, in Delaney v Staples [1992] 1 AC 687, 697E-F, Lord Browne-Wilkinson said that the basic concept of wages excludes "all payments in respect of the termination of the contract save to the extent that such latter payments are expressly included in the definition in section 7(1) [of the Wages Act 1986]". But he was there contrasting payments in respect of termination of the employment (such as payments in lieu of notice) with "payments in respect of the rendering of services during the employment". As the method of calculation adopted in regulation 14(3) makes plain, the payment in lieu of leave is one which the worker has earned by working for the relevant proportion of the leave year. So, even though he receives it only when his employment has been terminated, just like any other final payment of wages, it is part of the consideration for the services which he has previously performed under his contract of employment. The payment therefore falls within the normal meaning of the word "wages" and the interpretation of section 27 must be approached on that basis. Although counsel concentrated on section 27(1), the definition of "wages" extends over subsections (1) and (2) - with further clarification being given in subsection (3). Presumably to avoid subsection (1) becoming overloaded, the draftsman has split the definition into two subsections. But both the express inclusions in subsection (1) and the express exclusions in subsection (2) have to be considered. Given that the definition contains both, in Delaney v Staples [1992] 1 AC 687, 695B, Lord Browne-Wilkinson held that "there is no room for an argument that by expressly excluding certain items the draftsman was indicating that such items would otherwise be payments 'in connection with' the employment." Reversing the point, given the specific exclusions as well as inclusions, I am not disposed to attach any considerable weight to the Revenue's argument that the inclusion of payments under certain specific statutory provisions implies that payments under the 1998 Regulations, which are not listed, are excluded from the scope of "wages". If they were intended to be excluded, why were they not added to subsection (2) by an appropriate amendment? With this caveat, I turn to look more closely at subsection (1). Counsel for Mr Ainsworth argued that sections 88 and 89 contained examples of payments under a statutory provision which would fall within the scope of the term "wages" in section 27, even though they were not expressly included in subsection (1). But the payments under those sections are payments which an employee is entitled to receive during the period of notice of termination of his employment, provided only that he is ready and willing to work (section 88(1)(a) and section 89(2)) or is unable to work for some legitimate reason (section 88(1)(b)-(c) and section 89(3)). In other words, they are not actually payments in consideration of services which the employee performs under his contract of employment. Following the reasoning of the House in Delaney v Staples [1992] 1 AC 687, 697E-F, they may therefore more properly fall to be regarded as payments in connection with the termination of employment and so as not amounting to "wages". It is unnecessary to decide the point; it is enough to say that the draftsman of section 27(1) may have taken that view. It would accordingly be rash to affirm positively either that payments under section 88 and 89 are impliedly included in an employee's wages for the purpose of section 27 or that the omission of any reference to these sections must have been due to an oversight on the part of the draftsman. Indeed since, as I go on to explain, the draftsman of the 1996 Act was alive to the need to make appropriate cross-references, an oversight on his part is not, perhaps, a plausible explanation. The House is, of course, concerned with a possible failure to amend section 27(1) when the 1998 Regulations were drafted. If Homer nodded, doubtless Solon did too. So there is always the possibility of a simple error. And, in fact, there happens to be positive evidence of a slip by Parliamentary counsel in updating the predecessor of section 27(1), section 7(1) of the Wages Act 1986. The 1996 Act began life as a consolidation Bill in the 1994-1995 Session. At that stage it was considered by the Joint Select Committee on Consolidation Bills under the chairmanship of Lord Lloyd of Berwick. The draftsman of the consolidation Bill explained to the committee that, when para 10 of Schedule 5 to the Trade Union Reform and Employment Rights Act 1993 added a new section 78 to the Employment Protection (Consolidation) Act 1978, a reference to that section should have been, but was not, included in section 7(1) of the 1986 Act. Clause 27(1)(h) of the consolidation Bill had been drafted to correct that oversight by including a reference to section 130, which was to re-enact section 78 of the 1978 Act. The committee accepted this explanation and section 27(1)(h) was accordingly enacted in that form. See the minutes of evidence attached to the Fourth Report of the Joint Select Committee, dated 7 June 1995. If such a mistake was made by Parliamentary counsel in the past, it is at least possible that the officials in the Department of Trade and Industry who were responsible for the 1998 Regulations failed to consider whether section 27(1) should be amended to include a reference to the regulations on payments in respect of annual leave. In the end, however, the dispute on interpretation must be resolved by reference to the words of section 27(1) as enacted. I have already indicated my view that a payment under regulation 14 falls within the normal meaning of "wages". More particularly, it is a sum payable to a worker in connection with his employment. So it comes squarely within the opening words of section 27(1). And, as Mr Jeans observed, there is nothing to take it out of the scope of those words. If one continues into paragraph (a), even if the right to the payment under regulation 14 was created as part of a scheme for improving the health and safety of employees, the payment itself must surely be classified as "holiday pay". Regulation 17 treats annual leave under the 1998 Regulations as being equivalent to annual leave under a contract of employment. This must include the entitlement under regulation 16 to pay during the period of leave. Indeed I understood Mr Cavanagh eventually to acknowledge that it was not possible to draw any plausible distinction between "holiday pay" under a contract and the kind of payment envisaged by regulation 14. In any event, the payment under regulation 14 would count as an "emolument". Mr Cavanagh conceded that, if the concluding words of para (a) had been "whether payable under his contract or under statute", then the regulation 14 payment would have been covered, even though the Regulations had been passed after the 1996 Act. So the eventual issue was whether the words "whether payable under his contract or otherwise" were capable of referring to a payment under a regulation passed after the 1996 Act. In my view, the words "or otherwise" are broad and are apt to cover holiday pay which is payable, whatever the source of the employer's legal obligation to make the payment. Plainly, the reference to holiday pay that is payable under the employee's contract is not confined to pay that was payable under contracts which existed at the time when the 1996 Act was passed. I can therefore see no reason why the immediately following words "or otherwise" should be confined to other sources of obligation, whether statutes or statutory instruments (or indeed something else entirely), which existed when the Act was passed. In my view, the words are ambulatory and so are apt to cover holiday pay that is payable under regulation 14 of the 1998 Regulations. I accordingly conclude that a failure to pay a sum due under regulation 14 is the kind of impermissible deduction from wages that Parliament wanted to prevent by enacting section 13 of the 1996 Act. In these circumstances I do not find it necessary to have regard to the principle of equivalence, but I respectfully agree with what Lord Walker and my noble and learned friend, Lord Neuberger, say about it. For these reasons, as well as for those to be given by Lord Walker and Lord Neuberger, with which I agree, I would allow the appeals and make the orders proposed by Lord Walker. LORD WALKER OF GESTINGTHORPE My Lords, The reference to the Court of Justice The Working Time Regulations 1998 SI 1998/1833 ("WTR") were made under the European Communities Act 1972 in order to transpose into national law the provisions of the Working Time Directive 1993/104/EC. As appears from its recitals, the Directive was intended to promote health and safety at work by restricting the working day and the working week and requiring workers to be given rest periods and paid holidays (described in the English-language version as annual leave). All the appellants formerly worked for the respondent Commissioners of Inland Revenue (now HM Revenue & Customs) but most had retired, or been required to retire, after long absences because of illness. The main issue in these appeals was the effect of the annual leave provisions, as transposed by paras 13-16 of the WTR, in relation to employees like the appellants who had been on long-term sick leave. Since the appeals raised an important issue of Community law the House decided, when the appeals came on for hearing on 30 October 2006, to make a reference to the Court of Justice under Article 234 of the Treaty. The Grand Chamber of the Court of Justice considered the reference together with another reference, raising the same issues, from Germany. On 30 January 2009 the Court gave judgment in both cases (Case C-350/06 Schultz-Hoff v Deutsche Rentenversicherung Bund, Case C-520/06 Stringer v HM Revenue and Customs) in terms favourable to the former employees. The Court of Justice's interpretation differed from that adopted by the Court of Appeal (IRC v Ainsworth [2005] ICR 1149), which had itself differed from the Employment Appeal Tribunal. Counsel agree that on the main issue the appropriate course for your Lordships is simply to allow the appeals and restore the orders of the Employment Appeal Tribunal. The jurisdiction issue Mr Ainsworth (who was an Inspector of Taxes based at Chester but became ill at the end of 2000) and some of the other appellants made their applications to the employment tribunal not only under the WTR but also under sections 13 (Right not to suffer unauthorised deductions) and 23 (Complaints to employment tribunals) of the Employment Rights Act 1996 ("ERA"). That gives rise to the only remaining issue before the House: whether a claim under the ERA was available to these appellants. That issue might be described as technical and in some cases (where an aggrieved employee applies to the employment tribunal promptly) it is of no more than academic interest. But it becomes a matter of practical importance if the normal three-month time limit for an application to the employment tribunal has expired since the complaint arose, and other grounds for extending the time limit are not available. That is because section 23 of the ERA permits (but regulation 30 (Remedies) of the WTR, the corresponding procedural provision, does not permit) an aggrieved employee to make a claim in respect of the whole of a "series" of deductions of which he complains if he acts within three months of the latest deduction in the series. (There is some case law about the meaning of "series", which has been fairly generously interpreted, but it is unnecessary to consider that point in these appeals.) The time limit point is of practical importance not only to employers and workers but also to those engaged in administering employment tribunals. Sometimes a point of principle about entitlement to holiday pay affects a large class of employees and arises every time any of them takes a few days' holiday. The sums involved may be relatively small on each occasion but if employees feel that they are not getting their full entitlement, and conciliation fails, they will wish to take the matter to an employment tribunal. This has been strikingly illustrated by the large number of small claims made by pilots employed by BA and other airlines in disputes over whether holiday pay should be calculated on basic pay alone, or should take account of flying time supplements and TAFB (time away from base) allowances: see British Airways plc v Williams [2008] EWCA Civ 281, 19 March 2009. For that reason the President of the Employment Appeal Tribunal readily gave the Revenue permission to appeal to the Court of Appeal on this issue as well as on the main issue which was referred to the Court of Justice, and the Court of Appeal decided to consider the point even though Mr Ainsworth's counsel submitted, at that stage, that the point was academic to his client and should not be argued. Since in allowing the appeal the Court of Appeal overruled the Employment Appeal Tribunal's decisions in List Design Group Ltd v Douglas [2002] ICR 686 and Canada Life Ltd v Gray [2004] ICR 673 it is clearly appropriate for your Lordships to consider the matter, even if it is no longer important to any of the appellants themselves. Employment tribunals and the WTR I must give a fuller account of the relevant provisions of the WTR and the ERA. But as this appeal is concerned with the jurisdiction and powers of employment tribunals they are the best starting point. Employment tribunals (renamed in 1998, having previously been industrial tribunals) are regulated mainly by the Employment Tribunals Act 1996 (formerly the Industrial Tribunals Act 1996). Their jurisdiction is entirely statutory, conferred by a wide range of primary and secondary legislation including the Equal Pay Act 1970, the Health and Safety at Work Act 1974, other statutes against discrimination and (most relevantly) the WTR and the ERA. Because the WTR are concerned primarily with health and safety, breaches of some of the provisions in Part II of the WTR, such as regulations 10 (Daily rest), 11 (Weekly rest period), 12 (Rest breaks) and 13 (Entitlement to annual leave) do not give rise to readily quantifiable monetary claims. If a worker works and receives a week's pay, when he should have had a week's holiday with pay, it is rest and recreation, not money as such, that he has lost. Consequently regulation 30 (Remedies) provides for statutory compensation to be awarded by the employment tribunal as is just and equitable in the circumstances, having regard to the employer's default and any loss sustained by the worker (see regulation 30(1)(a)(i), (3) and (4)). Some other claims under Part II, that is under regulations 14 (Compensation related to entitlement to leave) and 16 (Payment in respect of periods of leave), are liquidated in nature. For them the remedy is an order for payment of the amount due: see regulation 30 (1)(b) and (5). Mr Ainsworth's claim, so far as brought under the WTR, was brought under regulation 14 (Compensation related to entitlement to leave), the first two paragraphs of which are in the following terms: "(1) This regulation applies where - (a) a worker's employment is terminated during the course of his leave year, and (b) on the date on which the termination takes effect ('the termination date'), the proportion he has taken of the leave to which he is entitled in the leave year under regulation 13 differs from the proportion of the leave year which has expired. (2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3)." A worker with contractual rights cannot claim them on top of his rights under the WTR, but can opt for whichever rights are the more favourable. That is the effect of regulation 17 (Entitlements under other provisions): "Where during any period a worker is entitled to a rest period, rest break or annual leave both under a provision of these Regulations and under a separate provision (including a provision of his contract), he may not exercise the two rights separately, but may, in taking a rest period, break or leave during that period, take advantage of whichever right is, in any particular respect, the more favourable." The Working Time Directive required member states to transpose its provisions into national law by 23 November 1996. In the United Kingdom the Directive was a subject of great political controversy. When it was being negotiated the Conservative government opposed many of the proposals, including in particular the proposal for a maximum 48-hour working week from which employers and workers could not agree to opt out. The government went so far as to challenge, in proceedings before the Court of Justice, whether the Directive was under the Treaty (as it then stood) capable of being approved by only a qualified majority of the member states. The challenge was unsuccessful: Case C-84/94 United Kingdom v Council of the European Union [1996] ECR I-5755. The WTR were eventually made on 30 July 1998, over 20 months after the final date fixed by the Directive, and contained provisions facilitating the United Kingdom's derogation from the mandatory 48-hour week (see Article 17 of the Directive and Regulation 31 of the WTR, inserting a new section 45A in the ERA in order to comply with the conditions for derogation). The ERA The ERA is a consolidating Act. The immediate predecessor to Part II (Protection of wages) was the Wages Act 1986, but parts of it have much older roots, going back to the Truck Act 1831. Section 13, which is the first section in Part II, provides (so far as now relevant): "(1) An employer shall not make a deduction from wages of a worker employed by him unless - (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction. (2) defines "relevant provision" (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion." The purpose of section 13(3) is not immediately apparent but it has been interpreted as having two important effects. In Delaney v Staples [1991] 2 QB 47 the Court of Appeal (Lord Donaldson of Lymington MR, Ralph Gibson LJ and Nicholls LJ) relied on its predecessor (section 8(3) of the Wages Act 1986) for the conclusion that "a deduction from wages" can for this purpose cover a total failure to pay any wages when due (in that case, contractual commission and holiday pay). But the Court of Appeal also held that the employment tribunal had no jurisdiction to make an award in respect of an unliquidated contractual claim for a payment in lieu of notice. The House of Lords [1992] 1 AC 687 dismissed the ex-employee's claim on the latter point (on which the law has since been changed, in 1994, to give employment tribunals a limited jurisdiction to hear certain contractual claims for unliquidated sums). There was no cross-appeal against the Court of Appeal's decision as to the meaning of "a deduction from wages", nor was it challenged before your Lordships. The other decision of the Court of Appeal on section 13(3) is New Century Cleaning Co Ltd v Church [2000] IRLR 27. In that case the Court of Appeal (Beldam and Morritt LJJ, Sedley LJ dissenting) held, on unusual facts arising out of the way a team of window cleaners operated, that the effect of the words "properly payable by him to the worker on that occasion" excluded anything in the nature of an unliquidated claim from coming within section 13. Again, that decision has not been challenged before your Lordships. It is not directly relevant to Mr Ainsworth's claim but it shows that the very wide definition of "wages" in section 27 of the ERA (the last section in Part II) must in effect be filtered, for the purposes of a claim under section 13, by eliminating any unliquidated amounts. The definition of "wages" in section 27 (to which I now proceed) does contain some items (for instance, some of those in subsection (1)(e) and (f): see sections 60(3) and (4) and 70(6) and (7) of the ERA) which, like statutory compensation under regulation 30(3) and (4) of the WTR, cannot be quantified until the employment tribunal makes its own evaluative judgment on a claim. Section 27(1) provides as follows: "(1) In this Part 'wages', in relation to a worker, means any sums payable to the worker in connection with his employment, including -        (a)  any fee, bonus, commission, holiday pay or   other emolument referable to his     employment, whether payable under his contract or   otherwise,        (b)  statutory sick pay under Part XI of the Social   Security Contributions and Benefits Act 1992,        (c)  statutory maternity pay under Part XII of   that Act,          [(ca)  statutory paternity pay under Part 12ZA of   that Act,        (cb)  statutory adoption pay under Part 12ZB of   that Act,]        (d)  a guarantee payment (under section 28 of   this Act),        (e)  any payment for time off under Part VI of   this Act or section 169 of the Trade Union and   Labour Relations (Consolidation) Act 1992   (payment for time off for carrying out trade union   duties etc),        (f)  remuneration on suspension on medical   grounds under section 64 of this Act and        remuneration on suspension on maternity grounds   under section 68 of this Act,        (g)  any sum payable in pursuance of an order   for reinstatement or re-engagement under section   113 of this Act,        (h)  any sum payable in pursuance of an order   for the continuation of a contract of employment   under section 130 of this Act or section 164 of the   Trade Union and Labour Relations (Consolidation)   Act 1992, and        (j)  remuneration under a protective award under   section 189 of that Act, but excluding any payments within subsection (2). Subsection (2) then makes five general exclusions: (a) an advance by way of loan; (b) a payment of expenses; (c) a payment making provision on retirement or for loss of office; (d) a redundancy payment; and (e) any payment to the worker otherwise than in the capacity of a worker. Section 23 provides for complaints to employment tribunals by workers alleging breaches of a number of provisions, including section 13. It sets time limits as follows: "(2)  Subject to subsection (4), an [employment tribunal] shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with—        (a)  in the case of a complaint relating to a       deduction by the employer, the date       of payment of the wages from which       the deduction was made, or       (b)  in the case of a complaint relating to a payment         received by the employer, the date when the         payment was   received.      (3)  Where a complaint is brought under this section in respect     of—     (a)  a series of deductions or payments, or     (b)  a number of payments falling within subsection         (1)(d) and made in pursuance of demands for         payment subject to the same limit under section         21(1) but received by the employer on different         dates,      the references in subsection (2) to the deduction or payment are   to the last deduction or payment in the series or to the last of the   payments so received.        (4)  Where the [employment tribunal] is satisfied that it was   not reasonably practicable for a complaint under this section to be   presented before the end of the relevant period of three months,   the tribunal may consider the complaint if it is presented within   such further period as the tribunal considers reasonable." The correct construction of section 27 of the ERA It is common ground that section 13 of the ERA has a wide scope, extending to a variety of statutory and contractual entitlements to liquidated sums, provided always that they fall within the definition of "wages" in section 27. That definition is at the heart of these appeals. It is on its face a very wide definition. Section 27(1) starts with words of a generous ambit, "Any sums payable to the worker in connection with his employment..." The ambit of these words is cut down by the five general exclusions in section 27(2), but none of them has any possible application here. The wide opening words of section 27(1) are then followed (in the subsection as amended) by eleven paragraphs of specific inclusions, the first of which is itself in wide and general terms: "(a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise." The remaining ten paragraphs refer with differing degrees of particularity to various statutory entitlements, including statutory maternity pay (included in section 27(1)(c) as originally enacted) and statutory paternity and adoption pay (added as paragraphs (ca) and (cb) by amendments made by the Employment Act 2002). Mr Cavanagh QC (appearing with Mr Tolley for the Revenue) relied on the absence of any reference to the WTR in the long list of statutory rights enumerated in section 27(1)(b) to (j). It was significant, he submitted, that Parliament made amendments specifically mentioning some new rights but had not done the same when the WTR were made in 1998. Statutory paid annual leave did not exist when the ERA was enacted, and Parliament cannot have intended, by the general words "or otherwise" in section 27(1)(a), to cover a non-existent right, based on considerations of health and safety, which might be introduced in the future. He relied on the general observations of Lord Bingham of Cornhill in R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, paras 8-10, citing a passage (now recognised as authoritative) in the dissenting opinion of Lord Wilberforce in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, 822: "In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the Parliamentary intention. That may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive." Mr Cavanagh submitted that Parliament must have intended the WTR to remain as a single and exclusive regime for the enforcement of the rights which it created. In the Court of Appeal Maurice Kay LJ (with whom Kennedy and Laws LJJ agreed) accepted these submissions. Maurice Kay LJ dealt with the point quite shortly in para 24 of his judgment: "I do not consider that, in 1996, Parliament can have intended to refer to a subsequently created statutory right which comes with its own enforcement regime. If there were any doubt about this it is dispelled by section 205(2) of the 1996 Act which provides that the remedy in respect of any contravention of section 13 'is by way of a complaint under section 23 and not otherwise'. If List Design were correct, it would not be possible for a claim of statutory holiday pay to be pursued under regulation 30 which expressly provides for such a claim. Parliament cannot have so intended." Before your Lordships Mr Cavanagh expressly disclaimed any reliance on section 205(2) of the ERA. In my opinion he was right to make that disclaimer. So the Court of Appeal's reasoning comes down to the simple assertion that Parliament cannot, in this context, have intended to refer to a statutory right to be created in the future. That all depends, in my opinion, on the width of the language used by Parliament, on the one hand, and the degree of novelty of the new statutory right, on the other hand. The decision in Quintavalle (a case concerned with scientific and technological progress in human embryology) is miles away on the facts. In this case Parliament chose to use wide language, and the statutory right to paid annual leave is by no means dissimilar from rights which have for many years appeared in many employment contracts. Statutory paternity pay and adoption pay, by contrast, were relatively unusual rights which called for specific mention, especially as statutory maternity pay was already specifically mentioned. The statutory purpose of the definition of "wages" appears to be wide and inclusive. In the Royal College of Nursing case Lord Wilberforce referred to what Parliament would have known about the existing state of affairs. The ERA was enacted on 22 May 1996, and there can be little doubt that Parliament was well aware, when the Bill which became the ERA was before it, that the Working Time Directive conferred rights to annual paid leave and that the United Kingdom was under an obligation to transpose them into domestic law by the end of 1996. Initially I was inclined to see this as an argument in favour of the appellants but on reflection I think it is (in Housman's phrase) a two-edged sword, with both edges fairly blunt. The Bill was a consolidating measure, and the introduction of any amendment containing fresh material would have altered its character. Moreover the decision of the Court of Justice in United Kingdom v Council of the European Union on the United Kingdom's assault on the vires of the Working Time Directive was not yet known; it was given on 12 November 1996, very shortly before the expiry of the time limit for transposition of the Directive. I do not think it is possible, or appropriate, to draw any inference from these aspects of the ERA's parliamentary history. In the end it is a short point of statutory construction. I respectfully consider that the Court of Appeal had no good reason, either linguistically or on policy grounds, to take a restrictive view of the wide natural meaning of the definition in section 27. The principle of equivalence Before the House Mr Jeans QC (appearing with Mr Ford for the appellants) asked leave to rely on a point of Community law not taken below, that is the principle of equivalence. Under that principle, and the linked principle of effectiveness, national remedies for breaches of Community rights must be no less favourable than those available in similar domestic proceedings, and must be capable of effective exercise in practice: Case C-78/98 Preston v Wolverhampton Healthcare NHS Trust [2001] 2 AC 415, para 31 (citing numerous earlier decisions of the Court of Justice to the same effect). Preston was concerned with the exclusion of female part-time workers from "contracted-out" pension schemes. Their claims appeared to be time-barred under section 2(4) of the Equal Pay Act 1970 and (as regards retrospective entitlement) under section 2(5) and equal access regulations made in 1976. National courts are required to consider relevant issues of Community law even if not raised at the right time by the parties: Case C-312/93 Peterbroeck, Van Campenhout & Cie v Belgium [1995] ECR I-4599, para 21. Your Lordships did therefore hear argument on this point. For my part I do not think that reliance on the principle of equivalence is necessary for the appellants to succeed in these appeals, but consideration of the principle does to my mind serve to emphasise the substantial similarity between the Community right to paid annual leave and similar rights conferred by employment contracts. Mr Jeans submitted that the time limit under regulation 30 of the WTR was obviously less favourable than that provided for by section 23 of the ERA, since section 23(3) contains the possibility of an extension of time for a "series" of deductions. Against that Mr Cavanagh submitted that it was artificial to equate annual leave under the WTR with a claim for unauthorised deductions from wages. He also submitted that the appellants' argument proved too much, because of the six-year period available for a contractual claim by an employee brought in a county court (there are strict time limits for complaints invoking the employment tribunal's extended jurisdiction: Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 S.I. 1994/1623, articles 7 and 8). I comment first on Mr Cavanagh's submission that the appellants' argument proves too much. That submission was to my mind disposed of when Preston returned to this House after the decision of the Court of Justice: see the opinion of Lord Slynn of Hadley [2001] 2 AC 455, at paras 24-31. The comparison between procedure in an employment tribunal and in the county court must be made in the round, and the informal and inexpensive procedure in the employment tribunal confers many benefits. Lord Slynn's views on that point were accepted by all the other members of the Appellate Committee, either directly or through their agreement with the opinion of Lord Clyde. The relevant comparison is therefore between regulation 30(2) of the WTR and section 23(2), (3) and (4) of the ERA, and there is no doubt that the latter is more advantageous. Lord Clyde (with whom Lord Goff of Chieveley and Lord Nolan agreed) was less ready to accept Lord Slynn's views (paras 14-23) as to the similarity of the suggested domestic parallel in a case where part-time workers had for years been deprived of the opportunity of joining a pension scheme. Indeed Lord Slynn himself was cautious about the point (para 21): "…one should be careful not to accept superficial similarity as being sufficient. It is not enough to say that both sets of claims arise in the field of employment law, nor is it enough to say of every claim under article 119 that somehow or other a claim could be framed in contract." In these appeals, however, the parallel between the statutory right to paid annual leave and a contractual right to holidays with pay is to my mind much clearer and closer. It is not less close because of the Working Time Directive's emphasis on health and safety at work. Similar thinking has for many years informed the approach of responsible employers in framing contractual terms of employment. Moreover in each case the remedy would be an order for payment of the liquidated sum due. In concluding that the appeals on the outstanding issue should be allowed I would therefore base my conclusion both on normal principles of statutory construction and on the principle of equivalence. On this issue also I would set aside the order of the Court of Appeal and restore the order of the Employment Appeal Tribunal. LORD BROWN OF EATON-UNDER-HEYWOOD My Lords, I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury. I agree with them and for the reasons they give I too would allow the appeals, set aside the order of the Court of Appeal and restore the order of the Employment Appeal Tribunal. LORD NEUBERGER OF ABBOTSBURY My Lords, The facts, background and relevant statutory provisions are admirably set out by my noble and learned friend Lord Walker of Gestingthorpe in his opinion, which I have had the privilege of seeing in draft. Following the rulings of the Grand Chamber of the European Court of Justice ("ECJ") in Case C-350/06 Gerhard Schultz-Hoff v Deutsche Rentenversicherung Bund, Case C-520/06 Stringer v HM Revenue and Customs [2009] IRLR 214, there only remains one issue in dispute between the parties. The issue between the parties The issue is whether a claim based on an alleged failure to make payments due under the Working Time Regulations 1998 (SI 1998/1833) ("the WTR") can be brought by way of a claim for unauthorised deduction from wages under Part II of the Employment Rights Act 1996 ("the ERA"). In particular, the issue is whether claims for payment in respect of periods of annual leave under regulation 16, and claims for payment in lieu of leave on termination of employment under regulation 14, of the WTR are claims for "holiday pay… referable to [a worker's] employment, whether payable under his contract or otherwise" within section 27(1)(a) of the ERA. If the answer is in the negative, then such a claim could only be brought under regulation 30 of the WTR, in which case the limitation period is "three months … beginning with the date on which it is alleged that … the payment should have been made" - regulation 30(2)(a). But if the answer is in the affirmative, and the claim could alternatively be brought under section 23 of the ERA, the regime is more generous. While section 23(2)(a) has a similar three month limitation period, section 23(3) provides that, where there has been a "series of deductions or payments", the period starts from "the last deduction or payment in the series". In my judgment, claims under regulations 14 and 16 of the WTR are claims within section 27(1)(a) of the ERA, and are therefore capable of benefiting from the section 23 regime. Like Lord Walker, I have reached this conclusion for two reasons, namely the language of section 27(1)(a) and the doctrine of equivalence. The language of section 27(1)(a) As a matter of ordinary language, I am of the view that a payment due to a worker in lieu, or in respect, of his annual leave under the WTR is a sum "payable … in connection with his employment", and, in particular, that it is "holiday pay … payable under his contract or otherwise". Two submissions were advanced by the respondent against this view. First, it was said that that a payment due under regulation 14 or 16 of the WTR was in respect of leave under those Regulations, and not in respect of a "holiday". The purpose of the WTR is to give effect to the Working Time Directive (originally 1993/104/EC, now consolidated in 2003/88/EC), which was aimed at promoting health and safety at work. Accordingly, it was said, "leave" under the Regulations is not equivalent to a "holiday" in the Act. I do not agree. The purpose of a "holiday" from work is, at least in part, the psychological and social well-being of the employee. Further, regulation 17 of the WTR appears difficult to reconcile with the submission. It provides that, where a worker is "entitled to … annual leave both under a provision of these Regulations and under a separate provision (including a provision of his contract)", he can take advantage of the more favourable entitlement, but not of both entitlements. Quite apart from this, I would have thought that, even if the submission had been correct, it would not have availed the respondent: the right to payments under regulations 14 and 16 would be within the ambit of "other emolument" in section 27(1)(a) of the ERA. The respondent's second point was that a payment due under the provisions of a statutory instrument was not within the ambit of the words "or otherwise" in section 27(1)(a) of the ERA. As a matter of ordinary language, I find that very difficult to accept. It is said to derive support from the reasoning of the Court of Appeal in New Century Cleaning Co Ltd v Church [2000] IRLR 27, paras 43 and 62 (per Morritt LJ and Beldam LJ respectively). I am not sure that this was indeed the effect of the reasoning in those two passages, but, if it was, then I must respectfully disagree. The respondent's argument that the reach of the words "or otherwise" is effectively limited to terms implied into the employment contract not only seems to attribute an artificially narrow meaning to those words. On analysis, it gives them no meaning, as if a right to a payment is implied (by common law or statute) into a contract, then it seems to me that the sum is "payable under his contract". In any event, the argument overlooks the wide compass of the opening part of section 27(1), which refers to "sums payable to the worker in connection with his employment".   Accordingly, unless there is some telling reason for excluding payments in lieu of annual leave under the WTR from the ambit of section 27(1)(a) of the ERA, it would appear to be included as a matter of ordinary language.   Mr Cavanagh QC, in his attractive argument for the respondent, contended that there was some telling reason for reaching a different conclusion. He pointed to the fact that the WTR came into force some time after the ERA, and that, in paras (b) to (j), section 27(1) appears to contain an exhaustive list of statutory payments to employees. He also pointed out that section 27(1) has been amended to accommodate later enacted payments such a paternity pay and adoption pay - see paras (ca) and (cb) - but no such amendment was made to accommodate payments under the WTR, which have their own procedure and time limits for claims in regulation 30.   In my view, the argument has some force, but not nearly enough to justify cutting down the natural meaning of the words of section 27(1)(a). When introducing paternity pay and adoption pay through the medium of the new Parts 12ZA and 12ZB of the Social Security Contributions and Benefits Act 1992, those drafting the Employment Act 2002 would have noticed that maternity pay, which was already provided for in Part XII of the 1992 Act, was specifically referred to in section 27(1)(c) of the ERA. It would therefore no doubt have been thought sensible to state in terms that the new paternity and adoption pay were to be treated in the same manner. No such imperative would have existed for payments in respect of leave under the WTR, for two reasons. First, there was no equivalent in respect of such payments to section 27(1)(c) in relation to paternity and adoption pay. Secondly, unlike paternity pay and adoption pay, payments in respect of leave could have been regarded as already covered by the reference to "holiday pay" in section 27(1)(a), so that they did not need to be covered in an additional new paragraph.   It is true that, on this basis, very little is served by the provisions of regulation 30 of the WTR, as the time limits in section 23 of the ERA would almost always be the same or more generous. However, the time limit under regulation 30 is six months, rather than three months, for members of the armed forces. Quite apart from this, regulation 30 is concerned with claims which are not only for payments. Further, the statutory payments referred to in section 27(1) (d) (e) and (f) are subject to the same three months regime as that contained in regulation 30 of the WTR, which appears to be in fairly similar form to procedural provisions governing most of the other payments referred to in section 27(1)(a) to (j) of the ERA. The principle of equivalence   For the reasons so far given, it seems to me that, on purely domestic legal principles, the appellants are correct in their contention that payments due under regulations 14 and 16 of the WTR fall within section 27(1) of the ERA. However, if the contrary had been arguable, or even probably right, if one confined oneself to domestic law, I would still have found for the appellants on an additional ground persuasively advanced by Mr Jeans QC for the appellants, based on the EC law principle of equivalence. As succinctly put by Lord Slynn of Hadley in Preston v Wolverhampton Healthcare NHS Trust [2001] 2 AC 455, para 13, this principle generally requires that a limitation period in respect of an action on a claim arising out of EU law must not be "less favourable than for similar actions based on domestic law". In Levez v T H Jennings Ltd [1999] ICR 521, para 39, the ECJ said that it was primarily for the national court to ascertain whether the principle applies in a particular case.   The issue which arises in the present appeal is whether there are claims under section 27(1) which are similar to, but benefit from more favourable limitation periods than, claims under regulations 14 and 16, if such latter claims do not fall within section 27(1). If the answer is in the affirmative, that would reinforce the conclusion, indeed it would provide an additional reason for concluding, that claims under regulations 14 and 16 did fall within section 27(1). Otherwise the UK Government would be in breach of its European Treaty obligations.   This issue requires one to address two points, namely difference in limitation period and similarity of claims. In relation to contractual holiday pay, and all other sums covered by section 27(1), an employee can rely on section 23(3) of the ERA. This effectively extends the start of the three month limitation period, in any case where the deduction was one of a "series of deductions", until the date of the last deduction in the series. On the other hand, an employee who can only rely on regulation 30 of the WTR is subject to a similar three month time limit, but cannot contend for a postponement of the commencement of the period where the deduction or non-payment is part of a "series".   As Lord Walker explains in para [5], section 23(3) is plainly a provision which is intended to have, and no doubt has, real value to many employees in relation to many claims based on deductions from their wages, even though I accept that it may on occasion be capable of being a little "hit and miss" in its effect. This is therefore not a case where it could be said that the appellants are seeking to benefit from the "most favourable rules" of limitation, which I understand to mean exceptional or unusually beneficial rules (as mentioned by the ECJ in Levez [1999] ICR 521, para 42).   The argument on this appeal concentrated on the difference in limitation period for claims in respect of contractual holiday pay and claims for payments due under regulations 14 and 16. In my view, that may well be too narrow a comparison. However, whether one confines oneself to contractual holiday pay or considers all the types of payment covered by paras (a) to (j) of section 27(1), I consider that the principle of equivalence would be infringed if payments due under regulations 14 and 16 of the WTR were not comprehended within section 27(1)(a), and thereby within the ambit of section 23(3) of the ERA. So far as contractual holiday pay is concerned, it seems to me that, for reasons already discussed in para [7], it is plainly similar to payments due under regulations 14 and 16. However, unlike such payments, contractual holiday pay can be sued for in the courts, as well as in the employment tribunal, where it would be subject to a six year limitation period under the Limitation Act 1980. It is therefore said on behalf of the respondent that the appellants' argument does not involve comparing like with like. I see the force of that point, but it seems to me that it involves looking at the issue too narrowly. In order to decide whether two claims are similar for this purpose, the court must address "both the purpose and the essential characteristics of the allegedly similar domestic actions" - Levez [1999] ICR 521, para 43. As the ECJ went on to say in the next paragraph, what has to be taken into account is "the role played by [the] provision [in question] in the procedure as a whole, as well as the operation and any special features of that procedure before the different national courts". To similar effect, in Preston [2001] 2 AC 455, para 21, Lord Slynn warned against determining equivalence by reference to "superficial similarity".   The specialist, informal and relatively cheap jurisdiction of the employment tribunal renders it the obvious place for an employee to seek redress for an allegedly unwarranted deduction of a sum from wages, at least provided that the sum can fairly be seen as part of the employee's wages. An important aspect of the policy of Part II of the ERA is that there should be a uniform procedural code which applies, inter alia, to limitation periods for the bringing of any complaint relating to the deduction of such sums from wages. The payments within Part II, as set out in section 27(1)(a) to (j), are all sums payable to an employee in respect of, or in the course of, his employment - in effect part of his wages. By contrast, the payments excluded from the ambit of Part II, by section 27(2), do not satisfy that test: they are payments for ceasing to be an employee, loans to the employee, reimbursement of expenses, or payments to him otherwise in the capacity of a worker.   Both counsel agree that virtually every type of statutory payment to which an employee is entitled under English law is included in section 27(1), the only possible exception being payments due under the WTR (indeed that is a point relied on by the respondent on the first aspect discussed in this opinion). Furthermore, all, or virtually all, of these payments are subject to their own specific procedural regime, including specific limitation periods. Those within section 27(1)(d), (e) and (f) are subject to the same three month time limit as is contained in regulation 30 of the WTR; any contractually due payment will normally be subject to a six year limitation period; many of the other payments are subject to a six month time limit, including those under section 27(1)(b), (c), (ca), and (cb).   If the right approach is to compare the position of payments under regulations 14 and 16 with that of holiday pay, then, once one sees that holiday pay is treated under Part II of the ERA in the same way as any other payment which can be said to be "wages" (whatever its own specific limitation period), then I consider that there is no basis for treating payments due under regulations 14 and 16 differently. If the right comparator is not merely holiday pay, but all other statutorily and contractually payable sums due from an employer, provided that they can fairly be characterised as "wages" (whatever their own specific limitation period may be), then, again, there is no basis, in my view, for treating payments due under regulations 14 and 16 differently. If not included in section 27(1) of the ERA, payments due under the WTR would be the only statutorily prescribed payments due from an employer to an employee in respect of his employment which were excluded from the benefit of section 23(3).   It seems to me that the question of similarity, in the context of the principle of equivalence, has to be considered by reference to the context in which the principle is being invoked. On that basis, not only the substantial breadth of the reach of section 27(1), but also the purpose of Part II of the ERA, comes into play. That purpose is well described by the Title - "Protection of Wages". I find it very hard to see how it can be said, in the context of seeking to protect sums due to employees, provided that they can be fairly described as "wages", that payments due under regulations 14 and 16 of the WTR are other than similar to the many other types of payments described in, or covered by, section 27(1).   Accordingly, even if there was a stronger argument based on domestic statutory interpretation in favour of the respondent's case, I would still reject it in the light of the principle of equivalence. Conclusion   For these reasons, which are very much along the same lines as those of Lord Walker, with whose opinion I respectfully agree, I too would allow the appeal of the appellants on the outstanding point at issue.

Judgment of the Court (First Chamber) of 7 May 1981. - Gerhard Will v Commission of the European Communities. - Official: Credit of years of pensionnable service. - Case 131/80. European Court reports 1981 Page 01139 Summary Parties Subject of the case Grounds Decision on costs Operative part Keywords OFFICIALS - PENSION - CREDIT FOR YEARS OF SERVICE - PURPOSE - COMPENSATION FOR PENSION RIGHTS ACQUIRED IN COUNTRY OF ORIGIN - CALCULATION - REFERENCE TO DATE OF TERMINATION OF NATIONAL EMPLOYMENT - SUBSEQUENT LEGISLATION RETROACTIVELY AMENDING CALCULATION OF RIGHTS ACCRUED OF NO EFFECT - TAKING INTO ACCOUNT PENSION RIGHTS RETAINED BY VIRTUE OF VOLUNTARY INSURANCE - EXCLUSION OF VOLUNTARY CONTRIBUTIONS PAID BY THE PERSON CONCERNED AFTER THE TERMINATION OF NATIONAL EMPLOYMENT ( STAFF REGULATIONS OF OFFICIALS OF THE ECSC , ART . 102 ( 2 ); STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES , ART . 107 ) Summary CREDIT FOR YEARS OF PENSIONABLE SERVICE PROVIDED FOR IN ARTICLE 102 ( 2 ) OF THE FORMER STAFF REGULATIONS OF OFFICIALS OF THE ECSC AND IN ARTICLE 107 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES ARE INTENDED TO PROVIDE WITHIN THE FRAMEWORK OF THE COMMUNITY PENSION SCHEME SOME COMPENSATION FOR PENSION RIGHTS WHICH THE OFFICIAL HAD ALREADY ACQUIRED BUT WHICH HE WAS OBLIGED TO FORFEIT BY REASON OF HIS APPOINTMENT BY ONE OF THE COMMUNITIES , SUCH RIGHTS BEING THOSE WHICH HE HAS ACQUIRED AT THE TIME OF THE TERMINATION OF HIS PREVIOUS DUTIES . HENCE SUBSEQUENT NATIONAL LEGISLATION CANNOT HAVE THE EFFECT OF MODIFYING FOR THE PURPOSE OF DETERMINING SUCH COMPENSATION THE CALCULATION OF THE RIGHTS WHICH HE HAD ACQUIRED AT THAT TIME , EVEN IF , HAVING COME INTO EFFECT AFTER THE TERMINATION OF THE NATIONAL EMPLOYMENT OF THE PERSON CONCERNED , IT HAS A RETROACTIVE EFFECT TO A DATE PRIOR TO THAT TIME . THE OFFICIAL CANNOT BE DEEMED TO HAVE FORFEITED PENSION RIGHTS BY REASON OF HIS ENTERING THE SERVICE OF ONE OF THE COMMUNITIES WHEN THOSE RIGHTS HAVE NOT ACCRUED TO HIM AT THE ACTUAL TIME AT WHICH HE CEASES TO PURSUE HIS PREVIOUS EMPLOYMENT . SIMILARLY , ALTHOUGH AN INSTITUTION IS ENTITLED TO TAKE INTO ACCOUNT , IN ORDER TO CALCULATE THE PENSION RIGHTS WHICH HAVE BEEN ACQUIRED BY AN OFFICIAL IN HIS COUNTRY OF ORIGIN AND WHICH HE HAS BEEN OBLIGED TO FORFEIT BY REASON OF HIS ENTERING THE SERVICE OF ONE OF THE COMMUNITIES , THE PENSION RIGHTS RETAINED BY VIRTUE OF SUPPLEMENTARY VOLUNTARY INSURANCE WITH THE NATIONAL INSURANCE INSTITUTION , IT MUST NEVERTHELESS EXCLUDE VOLUNTARY CONTRIBUTIONS PAID BY THE PERSON CONCERNED AFTER THE TERMINATION OF HIS NATIONAL EMPLOYMENT . Parties IN CASE 131/80 , GERHARD WILL , AN ENGINEER AND AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDENT IN LUXEMBOURG , WITH AN ADDRESS FOR SERVICE AT THE CHAMBERS OF HIS COUNSEL , VICTOR BIEL OF THE LUXEMBOURG BAR , 18A RUE DES GLACIS , APPLICANT , V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JORN PIPKORN , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG , DEFENDANT , Subject of the case APPLICATION FOR ( 1 ) ANNULMENT OF THE COMMISSION DECISION OF 11 DECEMBER 1978 DETERMINING THE NUMBER OF YEARS ' PENSIONABLE SERVICE CREDITED TO THE APPLICANT PURSUANT TO ARTICLE 102 OF THE STAFF REGULATIONS OF THE ECSC : ( 2)A DECLARATION THAT THE COMMISSION IS OBLIGED TO CREDIT THE APPLICANT WITH SEVERAL YEARS ' PENSIONABLE SERVICE NOT TAKEN INTO CONSIDERATION IN THE SAID DECISION , Grounds 1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 30 MAY 1980 GERHARD WILL , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR ANNULMENT OF THE DECISION OF THE COMMISSION DATED 11 DECEMBER 1978 BY WHICH THE PROVISIONS OF ARTICLE 102 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC ( HEREINAFTER REFERRED TO AS ' ' THE ECSC STAFF REGULATIONS ' ' ) WERE APPLIED TO THE APPLICANT AND THE NUMBER OF YEARS ' PENSIONABLE SERVICE TO BE CREDITED TO HIM UNDER THOSE PROVISIONS WAS DETERMINED . 2 THE SAID ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS WHOSE WORDING CORRESPONDS SUBSTANTIALLY TO THAT OF ARTICLE 107 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES ( HEREINAFTER REFERRED TO AS ' ' THE STAFF REGULATIONS ' ' ), PROVIDES THAT AN OFFICIAL WHO FURNISHES EVIDENCE OF HAVING BEEN OBLIGED BY REASON OF HIS ENTERING THE SERVICE OF THE COMMUNITY TO FORFEIT IN WHOLE OR IN PART THE PENSION RIGHTS WHICH HAVE ACCRUED TO HIM IN HIS COUNTRY OF ORIGIN AND OF BEING UNABLE TO OBTAIN THE ACTUARIAL EQUIVALENT OF SUCH RIGHTS SHALL BE CREDITED , FOR THE PURPOSES OF HIS RETIREMENT PENSION IN THE COMMUNITY WITH ANNUAL CONTRIBUTIONS CORRESPONDING TO THE NUMBER OF YEARS OF PENSIONABLE SERVICE ACCRUED IN HIS COUNTRY OF ORIGIN . THE SAME ARTICLE PROVIDES THAT THE NUMBER OF YEARS OF PENSIONABLE SERVICE THUS CREDITED SHALL BE DETERMINED BY THE APPOINTING AUTHORITY OF THE INSTITUTION TO WHICH THE OFFICIAL BELONGS AFTER RECEIVING THE OPINION OF THE STAFF REGULATIONS COMMITTEE AND THAT IT SHALL NOT EXCEED EITHER THE NUMBER OF YEARS OF ACTUAL SERVICE WHICH IT WILL BE POSSIBLE FOR THE OFFICIAL TO COMPLETE UP TO THE AGE OF 65 YEARS , OR HALF THE NUMBER OF YEARS OF SERVICE WHICH UPON HIS ATTAINING THE AGE OF 65 YEARS WOULD BE REQUIRED FOR HIM TO COMPLETE 35 YEARS OF PENSIONABLE SERVICE . 3 THE APPLICANT ENTERED THE SERVICE OF THE HIGH AUTHORITY OF THE ECSC ON 15 OCTOBER 1956 . BEFORE THAT DATE HE WAS EMPLOYED BY THE GERMAN MUTUAL INSURANCE FUND FOR WORKERS IN STEEL FOUNDRIES AND ROLLING-MILLS ( HUTTEN- UND WALZWERKS-BERUFSGENOSSENSCHAFT HEREINAFTER REFERRED TO AS ' ' THE BERUFSGENOSSENSCHAFT ' ' ), A BODY INCORPORATED UNDER PUBLIC LAW AS DEFINED BY GERMAN LEGISLATION . FROM 1 JUNE 1953 HE HAD THE STATUS OF AN OFFICIAL ; HIS REMUNERATION WAS THEREFORE SUBJECT TO DEDUCTION OF PENSION CONTRIBUTIONS PURSUANT TO THE GERMAN CIVIL SERVICE LAW . PREVIOUSLY FROM 1 MARCH 1951 HE HAD WORKED FOR THE SAME BODY AS A CLERICAL EMPLOYEE WITHIN THE MEANING OF THE GERMAN CLERICAL STAFF LAW ( ANGESTELLTENVERSICHERUNGSGESETZ ); SINCE HE WAS NOT SUBJECT TO THE COMPULSORY PENSION INSURANCE SCHEME SET UP BY THAT LAW BECAUSE OF THE AMOUNT OF HIS REMUNERATION HE PAID VOLUNTARY CONTRIBUTIONS TO THE FEDERAL INSURANCE OFFICE FOR CLERICAL STAFF ( BUNDESVERSICHERUNGSANSTALT FUR ANGESTELLTE , HEREINAFTER REFERRED TO AS ' ' THE CLERICAL INSURANCE OFFICE ' ' ). 4 WHEN HE ENTERED THE SERVICE OF THE COMMUNITY , THE APPLICANT HAD NOT COMPLETED THE QUALIFYING PERIOD OF 10 YEARS ' SERVICE PROVIDED FOR IN THE GERMAN CIVIL SERVICE LAW AS A CONDITION FOR THE GRANT OF A PENSION . IN THESE CIRCUMSTANCES , THE BERUFSGENOSSENSCHAFT WAS REQUIRED PURSUANT TO THE CLERICAL STAFF INSURANCE LAW TO INSURE THE APPLICANT RETROACTIVELY FOR THE PERIOD DURING WHICH HE HAD BEEN AN OFFICIAL . IT COMPLIED WITH THIS REQUIREMENT BY PAYING TO THE CLERICAL INSURANCE OFFICE AN AMOUNT CALCULATED BY REFERENCE TO THE PENSION FOR THAT PERIOD . THE APPLICANT FOR HIS PART PAID VOLUNTARY CONTRIBUTIONS TO THE SAID OFFICE DURING THE SAME PERIOD AND AFTER HIS ENTRY INTO THE SERVICE OF THE COMMUNITIES . 5 IT APPEARS FROM A LETTER OF THE CLERICAL INSURANCE OFFICE TO THE COMMISSION DATED 26 AUGUST 1976 THAT IT CONSIDERS THAT THE VOLUNTARY CONTRIBUTIONS PAID BY THE APPLICANT BOTH DURING HIS EMPLOYMENT WITH THE BERUFSGENOSSENSCHAFT AND AFTER THE TERMINATION OF THAT EMPLOYMENT ARE TO BE CONSIDERED AS INSURANCE CONTRIBUTIONS SUPPLEMENTARY TO THE RETROACTIVE INSURANCE TAKEN OUT BY THE BERUFSGENOSSENSCHAFT ON THE APPLICANT ' S BEHALF . 6 IN THE CONTESTED DECISION THE COMMISSION CREDITED THE APPLICANT WITH YEARS OF PENSIONABLE SERVICE UNDER ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS . THE DECISION ON THE ONE HAND DETERMINES THE MAXIMUM OF YEARS OF PENSIONABLE SERVICE TO BE CREDITED UNDER THOSE PROVISIONS AT 5 YEARS , 5 MONTHS AND 3 DAYS , AND ON THE OTHER HAND FIXES THE NUMBER OF YEARS OF PENSIONABLE SERVICE ACTUALLY CREDITED AT 3 YEARS , 1 MONTH AND 15 DAYS . 7 AS TO THE AMOUNT OF THE MAXIMUM , THE APPLICATION REFERS TO A PERIOD OF 15 YEARS AND 18 DAYS WHICH OUGHT TO BE TAKEN INTO CONSIDERATION BUT THIS ALLEGATION WHICH IS UNSUPPORTED BY ANY EXPLANATIONS WAS NOT PURSUED AFTER THE EXPLANATIONS WHICH THE COMMISSION GAVE IN THIS RESPECT IN ITS DEFENCE . 8 ON THE OTHER HAND THE NUMBER OF YEARS OF PENSIONABLE SERVICE CREDITED IS DISPUTED BY THE APPLICANT FOR TWO REASONS . FIRST THE COMMISSION TOOK AS THE BASIS OF ITS CALCULATION THE WRONG NUMBER OF YEARS OF SERVICE , FAILING TO TAKE ACCOUNT OF THE PERIODS OF STUDY UNDERTAKEN BY THE APPLICANT BEFORE HE ENTERED THE SERVICE OF THE BERUFSGENOSSENSCHAFT . SECONDLY , THE COMMISSION OUGHT NOT TO HAVE TAKEN INTO ACCOUNT HIS VOLUNTARY INSURANCE CONTRIBUTIONS PAID TO THE CLERICAL INSURANCE OFFICE . 9 ACCORDING TO THE SCHEDULE TO THE DECISION UNDER REVIEW , IT WAS BASED ON THE FOLLOWING CALCULATION SO AS TO ARRIVE AT THE CREDIT OF 3 YEARS , 1 MONTH AND 15 DAYS ; ( A ) IT TOOK AS A BASIS FOR THE CALCULATION THE PERIOD DURING WHICH THE APPLICANT WAS EMPLOYED BY THE BERUFSGENOSSENSCHAFT , THAT IS TO SAY 5 YEARS , 7 MONTHS AND 13 DAYS ; ( B)A COEFFICIENT OF 0.8332 WAS APPLIED TO THIS PERIOD SO AS TO TAKE ACCOUNT OF THE VOLUNTARY INSURANCE WHICH THE APPLICANT TOOK OUT WITH THE CLERICAL INSURANCE OFFICE ; ( C)A COEFFICIENT OF CONVERSION WAS THEN APPLIED SO AS TO GIVE THE ACTUARIAL EQUIVALENT OF THE PERIOD SO OBTAINED . 10 THE APPLICANT CONTESTS FIRST THE BASIS OF CALCULATION INDICATED AT ( A ). HE DOES NOT DENY THAT HE HAD ACTUALLY COMPLETED THE PERIOD TO WHICH THE DECISION REFERS AT THE TIME AT WHICH HE LEFT HIS EMPLOYMENT WITH THE BERUFSGENOSSENSCHAFT IN 1956 . IN HIS VIEW HOWEVER THE PERIOD TAKEN AS A BASIS FOR CALCULATION SHOULD HAVE INCLUDED NOT ONLY THE ACTUAL DURATION OF EMPLOYMENT BUT ALSO THE PERIODS OF STUDY PRIOR TO THE EMPLOYMENT WHICH ACCORDING TO THE APPLICABLE GERMAN LEGISLATION ARE TO BE TAKEN INTO CONSIDERATION IN ORDER TO CALCULATE YEARS OF PENSIONABLE SERVICE . 11 IN SUPPORT OF THIS SUBMISSION THE APPLICANT CLAIMS THAT A GERMAN LAW OF 1 JULY 1957 INSERTED IN THE FEDERAL CIVIL SERVICE LAW A NEW ARTICLE 116A ACCORDING TO WHICH PERIODS OF STUDY PRIOR TO EMPLOYMENT ARE TO BE TAKEN INTO CONSIDERATION IN ORDER TO CALCULATE YEARS OF PENSIONABLE SERVICE . THAT LAW OF 1957 HAD RETROACTIVE EFFECT TO 1 SEPTEMBER 1953 AT WHICH DATE THE APPLICANT WAS STILL IN THE EMPLOYMENT OF THE BERUFSGENOSSENSCHAFT . THEREFORE THE SCHEME PROVIDED FOR IN THE LAW WAS MADE RETROACTIVELY APPLICABLE TO HIS SITUATION ; THIS SCHEME THEREFORE CAUSED PENSION RIGHTS TO ACCRUE TO HIM WHICH HE WAS OBLIGED TO FORFEIT BY REASON OF HIS ENTERING THE SERVICE OF THE COMMUNITY . 12 THE COMMISSION REJECTS THIS ARGUMENT . IT SUBMITS THAT ACCORDING TO ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS , THE CREDITING OF YEARS OF PENSIONABLE SERVICE CAN APPLY ONLY TO YEARS OF SERVICE WHICH HAVE ACCRUED TO THE OFFICIAL IN HIS COUNTRY OF ORIGIN AND THAT THE WORDING MUST BE INTERPRETED TO MEAN THAT THE ' ' ACCRUED ' ' YEARS OF SERVICE MUST ACTUALLY HAVE ACCRUED AT THE TIME WHEN THE OFFICIAL WAS OBLIGED TO FORFEIT HIS RIGHTS . THIS INTERPRETATION IS SUPPORTED BY THE GENERAL IMPLEMENTING PROVISIONS RELATING TO ARTICLE 107 OF THE STAFF REGULATIONS AND ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS , WHICH WERE ADOPTED BY THE COMMISSION ON 2 JULY 1969 AND PUBLISHED IN THE COURRIER DU PERSONNEL ( STAFF COURIER ) OF 29 JULY 1969 ( NO 77 , P . 601 ). ARTICLE 7 OF THE GENERAL PROVISIONS EXPRESSLY MAKES THE CREDIT DEPEND ON THE NATIONAL PENSION SCHEME AS IT APPLIED TO THE OFFICIAL ' ' AT THE MOMENT WHEN HE WAS OBLIGED TO FORFEIT THESE RIGHTS ' ' . 13 THE COMMISSION ' S SUBMISSION MUST BE ACCEPTED . CREDITS FOR YEARS OF PENSIONABLE SERVICE PROVIDED FOR IN ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS AND IN ARTICLE 107 OF THE STAFF REGULATIONS ARE INTENDED TO PROVIDE WITHIN THE FRAMEWORK OF THE COMMUNITY PENSION SCHEME SOME COMPENSATION FOR PENSION RIGHTS WHICH THE OFFICIAL HAD ALREADY ACQUIRED BUT WHICH HE WAS OBLIGED TO FORFEIT BY REASON OF HIS APPOINTMENT BY ONE OF THE COMMUNITIES . THE RIGHTS WHICH HE IS OBLIGED TO FORFEIT ARE THOSE WHICH HE HAS ACQUIRED AT THE TIME OF THE TERMINATION OF HIS PREVIOUS DUTIES ; SUBSEQUENT NATIONAL LEGISLATION CANNOT HAVE THE EFFECT OF MODIFYING FOR THE PURPOSE OF DETERMINING SUCH COMPENSATION THE CALCULATION OF THE RIGHTS WHICH HE HAD ACQUIRED AT THAT TIME . 14 THE SAME APPLIES WHERE NATIONAL LEGISLATION WHICH COMES INTO EFFECT AFTER THE TERMINATION OF NATIONAL EMPLOYMENT HAS A RETROACTIVE EFFECT TO A DATE PRIOR TO THAT TIME . THE OFFICIAL CANNOT BE DEEMED TO HAVE FORFEITED PENSION RIGHTS BY REASON OF HIS ENTERING THE SERVICE OF ONE OF THE COMMUNITIES WHEN THOSE RIGHTS HAVE NOT ACCRUED TO HIM AT THE ACTUAL TIME AT WHICH HE CEASES TO PURSUE HIS PREVIOUS EMPLOYMENT . 15 IT FOLLOWS THAT THE FIRST HEAD OF THE APPLICANT ' S CLAIMS IS UNFOUNDED . 16 THE APPLICANT FURTHER DISAGREES WITH THE APPLICATION IN THE CONTESTED DECISION OF A COEFFICIENT OF 0.8332 TO THE NUMBER OF YEARS DURING WHICH HE WAS EMPLOYED BY THE BERUFSGENOSSENSCHAFT , SO AS TO TAKE ACCOUNT OF THE VOLUNTARY INSURANCE WITH THE CLERICAL INSURANCE OFFICE . IN HIS VIEW , TO TAKE INTO ACCOUNT VOLUNTARY CONTRIBUTIONS IS EQUIVALENT TO CONFISCATING AN OFFICIAL ' S SAVINGS AND IS IN ANY CASE CONTRARY TO THE WORDING AND TO THE PURPOSE OF ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS . 17 THE COMMISSION SUBMITS THAT IT IS ENTITLED TO TAKE PENSION RIGHTS WHICH THE OFFICIAL HAS RETAINED AFTER ENTRY INTO SERVICE WITH THE COMMISSION INTO CONSIDERATION IN ORDER TO CALCULATE THE VALUE OF LOST PENSION RIGHTS WHICH ARE TO BE MADE GOOD IN ACCORDANCE WITH THE SAID PROVISIONS , EVEN IF THOSE RIGHTS ARE BASED IN PART ON VOLUNTARY CONTRIBUTIONS . THE PURPOSE OF THE RULES APPLICABLE IS TO GRANT COMPENSATION FOR A DEFICIT IN PENSION WHICH CANNOT BE MADE GOOD IN ANY OTHER WAY SO THAT IT IS NOT APPROPRIATE TO GRANT THESE BENEFITS WHERE THERE IS NO SUCH DEFICIT . 18 MOREOVER THE COMMISSION POINTS OUT THAT ARTICLE 4 OF THE GENERAL IMPLEMENTING PROVISIONS MENTIONED ABOVE PROVIDES EXPRESSLY THAT PENSION RIGHTS WHICH THE OFFICIAL HAS BEEN OBLIGED TO FORFEIT ARE RETIREMENT PENSION RIGHTS UNDER A ' ' STATUTORY OR CONTRACTUAL ' ' PENSION SCHEME . 19 THE APPLICANT REPLIES THAT THE SAID ARTICLE 4 IS BASED ON AN INCORRECT INTERPRETATION OF ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS AND ARTICLE 107 OF THE STAFF REGULATIONS ; HE THEREFORE REQUESTS THE COURT TO DECLARE THE SAID ARTICLE 4 NULL AND VOID . 20 IT APPEARS FROM THE FILE THAT THE VOLUNTARY CONTRIBUTIONS PAID BY THE APPLICANT TO THE CLERICAL INSURANCE OFFICE AMOUNTED TO 46 , OF WHICH 17 WERE PAID DURING THE PERIOD WHEN THE APPLICANT WORKED AS A CLERICAL OFFICER OF THE BERUFSGENOSSENSCHAFT ( 1951 TO 1953 ), 13 DURING THE PERIOD WHEN HE HAD THE STATUS OF AN OFFICIAL WITH THAT INSTITUTION ( 1953 TO 1956 ), AND 16 AFTER THE TERMINATION OF HIS EMPLOYMENT IN DECEMBER 1957 . A COMPARISON OF THE APPLICABLE GERMAN LEGISLATION WITH THE INFORMATION IN THE FILE SHOWS THAT THESE 16 VOLUNTARY CONTRIBUTIONS , WHILST PAID AFTER THE TERMINATION OF EMPLOYMENT , WERE INTENDED TO COVER INSURANCE PERIODS BETWEEN 1 JANUARY 1955 AND THE TERMINATION OF EMPLOYMENT AS SUPPLEMENTARY CONTRIBUTIONS WITHIN THE MEANING OF THE CLERICAL STAFF PENSION REFORM LAW OF 23 OCTOBER 1957 ( ANGESTELLTENVERSICHERUNGS-NEUREGELUNGSGESETZ ). 21 IT SHOULD BE RECALLED MOREOVER THAT THE BERUFSGENOSSENSCHAFT TOOK OUT INSURANCE RETROACTIVELY FOR THE APPLICANT FOR THE PERIOD DURING WHICH HE HAD THE STATUS OF A GERMAN CIVIL SERVANT ( 1953 TO 1956 ) BY PAYING AN AMOUNT REPRESENTING THE PENSION CALCULATION FOR THAT PERIOD TO THE CLERICAL INSURANCE OFFICE , WHICH CONSIDERS THAT THE VOLUNTARY CONTRIBUTIONS MADE BY THE APPLICANT MUST BE TREATED IN THE SAME WAY AS SUPPLEMENTARY INSURANCE CONTRIBUTIONS WITHIN THE MEANING OF GERMAN LAW . 22 IN THESE CIRCUMSTANCES THE COMMISSION WAS ENTITLED TO TAKE INTO ACCOUNT , IN ORDER TO CALCULATE THE PENSION RIGHTS WHICH THE APPLICANT WAS OBLIGED TO FORFEIT WITHIN THE MEANING OF ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS BY REASON OF HIS ENTERING THE SERVICE OF THE COMMUNITY , THE PENSION RIGHTS RETAINED BY VIRTUE OF VOLUNTARY INSURANCE WITH THE CLERICAL INSURANCE OFFICE . IN THIS RESPECT THE COMMISSION HAS THEREFORE CORRECTLY INTERPRETED THE SAID ARTICLE 102 ( 2 ); CONSEQUENTLY ARTICLE 4 OF THE GENERAL IMPLEMENTING PROVISIONS IS NOT INCOMPATIBLE WITH THE PROVISIONS OF THE ECSC STAFF REGULATIONS . 23 THE COURT HOWEVER CONSIDERS THAT THE 16 VOLUNTARY CONTRIBUTIONS WHICH THE APPLICANT PAID AFTER THE TERMINATION OF HIS EMPLOYMENT WITH THE BERUFSGENOSSENSCHAFT SHOULD BE TREATED DIFFERENTLY . IT APPEARS FROM THE CONSIDERATIONS SET OUT THAT THE DATE TO BE TAKEN INTO ACCOUNT FOR THE PURPOSE OF CALCULATING LOST AND RETAINED PENSION RIGHTS SO AS TO MAKE SUCH RIGHTS GOOD WITHIN THE FRAMEWORK OF THE COMMUNITY PENSION SCHEME IS THE DATE AT WHICH THE OFFICIAL TERMINATES HIS PREVIOUS EMPLOYMENT IN ORDER TO ENTER THE SERVICE OF ONE OF THE COMMUNITIES . 24 THE COMMISSION WAS NOT THEREFORE ENTITLED TO TAKE INTO ACCOUNT THE VOLUNTARY CONTRIBUTIONS WHICH THE APPLICANT PAID AFTER HIS ENTRY INTO THE SERVICE OF THE COMMUNITY PURSUANT TO NATIONAL LEGISLATION WHICH CAME INTO EFFECT AFTER THAT DATE . 25 IT FOLLOWS FROM THE FOREGOING THAT THE CONTESTED DECISION MUST BE ANNULLED TO THE EXTENT TO WHICH THE APPLICATION OF THE COEFFICIENT OF 0.8332 TO THE PERIOD OF 5 YEARS , 7 MONTHS AND 13 DAYS OF PENSIONABLE SERVICE , CORRESPONDING TO THE PERIOD DURING WHICH THE APPLICANT WAS EMPLOYED BY THE BERUFSGENOSSENSCHAFT , REPRESENTS THE RETENTION OF THE APPLICANT ' S PENSION RIGHTS BASED ON THE PAYMENT OF 16 VOLUNTARY CONTRIBUTIONS WHICH HE MADE TO THE CLERICAL INSURANCE OFFICE AFTER THE TERMINATION OF HIS EMPLOYMENT WITH THE BERUFSGENOSSENSCHAFT . 26 THE REMAINDER OF THE APPLICATION MUST BE REJECTED . Decision on costs 27 SINCE EACH PARTY HAS FAILED IN ONE OF ITS SUBMISSIONS , IT IS APPROPRIATE FOR THE PARTIES TO BEAR THEIR OWN COSTS IN ACCORDANCE WITH THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE . Operative part ON THOSE GROUNDS , THE COURT ( FIRST CHAMBER ) HEREBY : 1 . ANNULS THE DECISION OF THE COMMISSION DATED 11 DECEMBER 1978 , BY WHICH THE PROVISIONS OF ARTICLE 102 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC WERE APPLIED TO THE APPLICANT , TO THE EXTENT TO WHICH THE APPLICATION OF A COEFFICIENT OF 0.8332 TO THE PERIOD OF 5 YEARS , 7 MONTHS AND 13 DAYS OF PENSIONABLE SERVICE , CORRESPONDING TO THE PERIOD DURING WHICH THE APPLICANT WAS EMPLOYED BY THE GERMAN MUTUAL INSURANCE FUND FOR WORKERS IN STEEL FOUNDRIES AND ROLLING-MILLS ( HUTTEN- UND WALZWERKSBERUFSGENOSSENSCHAFT ) REPRESENTS THE RETENTION OF THE APPLICANT ' S PENSION RIGHTS BASED ON THE PAYMENT OF 16 VOLUNTARY CONTRIBUTIONS WHICH HE MADE TO THE FEDERAL INSURANCE OFFICE FOR CLERICAL STAFF ( BUNDESVERSICHERUNGSANSTALT FUR ANGESTELLTE ) AFTER THE TERMINATION OF HIS EMPLOYMENT WITH THE BERUFSGENOSSENSCHAFT ; 2.ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .

FOURTH SECTION CASE OF PUHK v. ESTONIA (Application no. 55103/00) JUDGMENT STRASBOURG 10 February 2004 FINAL 10/05/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Puhk v. Estonia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrM. Pellonpää,MrJ. Casadevall,MrR. Maruste,MrS. Pavlovschi,MrJ. Borrego Borrego,MrsE. Fura-Sandström, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 20 January 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 55103/00) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Mr Rain Puhk (“the applicant”), on 23 November 1999. 2. The applicant was represented by Ms S. Must, a lawyer practising in Tartu. The Estonian Government (“the Government”) were represented by their Agents, Ms M. Hion, First Secretary of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs, and Mr E. Harremoes, Special Advisor to the Mission of the Republic of Estonia to the Council of Europe. 3. The applicant alleged that his conviction under the criminal laws which had entered into force on 13 January 1995 and 20 July 1993 of acts committed prior to those dates amounted to retrospective application of criminal law in breach of Article 7 § 1 of the Convention. 4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). 6. By a decision of 4 February 2003 the Court declared the application admissible. 7. The Government and the applicant each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1970 and lives in Tartu. At the material time he was the owner and manager of the company AS Maarja. 9. On 10 August 1995 the Tartu police instituted criminal proceedings against the applicant on charges of tax offences under Article 148-1 § 7 of the Criminal Code. In the course of the preliminary investigation the applicant was further charged with the offence of inadequate accounting under Article 148-4 of the Criminal Code as well as with falsification of documents. 10. On 6 October 1997 the Tartu prosecutor approved the bill of indictment, and the case was sent to the Tartu City Court (Tartu Linnakohus) for trial. The charges set out in the indictment related to acts and omissions of the applicant in the period from April 1993 to October 1995. In particular, under Article 148-1 § 7 of the Criminal Code the acts which were the subject of the charges against the applicant concerned his failures to pay the required taxes, to file by the set deadline revenue statements for the year 1993, to inform the Tax Board of the change of his company's location, and to comply with the order of the Tax Board of 26 October 1995 to pay the required taxes. Under Article 148-4 of the Criminal Code the applicant was accused of having unsatisfactorily arranged his company's bookkeeping, in breach of the legal requirements. The existing records were incomplete and a number of documents had not been preserved, which made it impossible to determine the company's performance. 11. By a judgment of 17 February 1999 the Tartu City Court convicted the applicant of the offences under Article 148-1 § 7 of the Criminal Code and sentenced him to 4 years' imprisonment. It also found the applicant guilty of the offence under Article 148-4 of the Code and sentenced him to 4 months' imprisonment. As the latter sentence was absorbed by the former, the aggregate sentence imposed on the applicant was 4 years' imprisonment, which was suspended for 3 years. The City Court found that the application of Article 148-1 § 7 of the Criminal Code, which had been in force as from 13 January 1995, was justified in the case on the grounds that the applicant's failure to pay the required taxes had been intentional and continuous and his criminal activity had lasted until October 1995. It ordered the applicant to pay the city tax authorities 1,596,618.42 Estonian kroons in outstanding taxes. No fine or tax surcharge was imposed apart from the requirement to pay the taxes which were due under the relevant tax laws. As regards the offence of inadequate accounting under Article 148-4 of the Criminal Code, which was in force as from 20 July 1993, the City Court noted that the applicant's company had operated from 5 May 1993 until 1 October 1993. During that period there had been no recording of its economic activity and it was impossible correctly to determine the company's performance, income, expenditure, profit, loss, debts, solvency or amount of its assets. The applicant had failed to comply with the obligations imposed on him by the Law on personal responsibility for the organisation of accounting. The law came into effect on 20 July 1993, i.e. at the time of the operation of the company, and the applicant, being its owner and manager, had to comply with the provisions of the law. The applicant also failed to adopt rules and procedures for bookkeeping and to secure the preservation of the relevant documents, as required under the Government decree of 6 July 1990 concerning the organisation of accounting. 12. On 26 February 1999 the applicant filed an appeal against the judgment to the Tartu Court of Appeal (Tartu Ringkonnakohus). He argued that in convicting him under Article 148-1 § 7 of the Criminal Code of acts committed prior to its entry into force on 13 January 1995, the City Court had applied the criminal law retrospectively. Before that date a conviction of the offences defined in Article 148-1 could follow only if the person concerned had been previously subjected to an administrative sanction for a similar offence. The applicant further submitted that, in making him responsible for the inadequate bookkeeping in his company during the whole period from 5 May 1993 until 1 October 1993, the City Court had also applied retroactively Article 148-4 of the Criminal Code which had only been in force as from 20 July 1993. 13. On 3 May 1999 the Court of Appeal upheld the judgment of the City Court. It found that the acts with which the applicant was charged under Article 148‑1 § 7 of the Criminal Code amounted to ongoing crimes. After his first criminal act on 16 April 1993 the applicant had embarked upon a criminal enterprise which had lasted until 26 October 1995, the day on which the Tax Board discovered the abuses and issued its order. Therefore, the City Court had correctly qualified his acts as falling under that law. It also considered that the ongoing nature of the applicant's acts relating to inadequate accounting justified his conviction under Article 148-4 of the Criminal Code. 14. On 1 June 1999 the applicant lodged an appeal on points of law to the Supreme Court (Riigikohus) raising the same arguments as in his appeal to the Court of Appeal. 15. By a judgment of 7 September 1999 the Supreme Court dismissed his appeal. It held that, according to the principles of Estonian criminal law, the law to be applied to a criminal act was the law which had entered into force before the end of a criminal activity. As the applicant's criminal activity ended on 26 October 1995, his actions fell under the law in force at that time, i.e. Article 148-1 § 7 of the Criminal Code. The same reasons applied to the applicant's conviction of inadequate accounting under Article 148-4 of the Criminal Code. II. RELEVANT DOMESTIC LAW AND PRACTICE 16. The text of Article 148-1 of the Criminal Code, in force until 27 June 1993, was as follows: “Concealment of income or other objects of taxation, or evasion of submission of income tax returns: (1) Concealment of income or other objects of taxation, or submission of knowingly false data in financial statements, tax calculations, income tax returns or other documents relating to the calculation of taxes or payments and their transfer to the budget, or evasion of submission of an income tax return or failure to submit an income tax return on time, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years' imprisonment; (2) The same acts, if committed by a person who has a criminal record for a criminal offence prescribed in paragraph (1) of this article, are punishable by one to five years' imprisonment.” 17. The text of Article 148-1 of the Criminal Code, in force as from 27 June 1993 until 13 January 1995, was as follows: “Evasion of submission of income tax returns or other tax calculations, concealment of income or other objects of taxation, and tax evasion: (1) Evasion of submission of an income tax return, or failure to submit an income tax return on time, or submission of falsified data therein by a person who is required to submit an income tax return, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to one year's imprisonment; (2) Concealment or reduction of income or other objects of taxation or increase of expenditure for the purpose of concealment or reduction of income or other objects of taxation, or failure to submit or failure to submit on time income tax returns, tax calculations, financial statements or other documents relating to the calculation of taxes or payments and their transfer to the budget, or failure to submit or failure to submit on time accounting documents, contracts or other documents necessary for the assessment and verification of the correctness of taxes, or failure to comply with an order of the Tax Board, by a competent official who is required to perform the corresponding duties, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or up to three years' imprisonment; (3) Failure to pay taxes or failure to pay taxes on time, or inadequate compliance or failure to comply with an order issued by the Tax Board for the compulsory collection of taxes by a bank, by a competent official who is required to perform the corresponding duties, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years' imprisonment; (4) Incorrect deduction or failure to deduct personal income tax from the wages (income) of employees, or failure to transfer deducted payments to the budget in full or in a timely manner, by a competent official who is required to perform the corresponding duties, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years' imprisonment; (5) The same acts, if committed by a person who has a criminal record for a criminal offence prescribed in paragraph (1), (2), (3) or (4) of this article are punishable by one to five years' imprisonment; (6) Commission of acts prescribed in paragraph (1), (2), (3) or (4) of this article on a large-scale basis is punishable by up to seven years' imprisonment.” 18. The text of Article 148-1 of the Criminal Code, in force as from 13 January 1995, reads as follows: “Evasion of submission of income tax returns or other tax calculations, concealment of income or other objects of taxation, and tax evasion: (1) Evasion of submission of an income tax return, or failure to submit an income tax return on time, or submission of falsified data therein, if such acts are intentionally committed by a person who is required to submit an income tax return, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to one year's imprisonment; (2) Concealment or reduction of income or other objects of taxation or increase of expenditure for the purpose of concealment or reduction of income or other objects of taxation, or failure to submit or failure to submit on time income tax returns, tax calculations, financial statements or other documents relating to the calculation of taxes or payments and their transfer to the budget, or failure to submit or failure to submit on time accounting documents, contracts or other documents necessary for the assessment and verification of the correctness of taxes, or failure to comply with an order of the Tax Board, if the specified acts are intentionally committed by a competent official who is required to perform the corresponding duties, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years' imprisonment; (3) Failure to pay taxes or failure to pay taxes on time, or inadequate compliance or failure to comply with a precept issued by the Tax Board for the compulsory collection of taxes by a bank, if such acts are intentionally committed by a competent official who is required to perform the corresponding duties, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years' imprisonment; (4) Incorrect deduction or failure to deduct personal income tax from the wages (income) of employees, or failure to transfer deducted payments to the budget in full or in a timely manner, if such acts are intentionally committed by a competent official who is required to perform the corresponding duties, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years' imprisonment; (5) Submission of incorrect data or documents upon compulsory registration on the basis of an Act concerning a tax, or concealment of one's residence, place of employment or place of business from a tax authority, or evasion of payment of the taxes provided for in the Taxation Act in any other manner, if such acts are intentionally committed by a competent official who is required to perform the corresponding duties or by a natural person, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years' imprisonment; (6) The same acts, if committed by a person who has a criminal record for a criminal offence prescribed in paragraph (1), (2), (3), (4) or (5) of this article are punishable by one to five years' imprisonment; (7) Commission of acts prescribed in paragraph (1), (2), (3), (4) or (5) of this article on a large-scale basis is punishable by three to seven years' imprisonment.” 19. Article 148-4 of the Criminal Code, in force as from 20 July 1993, provides as follows: “Inadequate organisation of accounting: Violation of the requirements provided for in legislation regulating accounting or reporting concerning the economic activities, including the commercial or financial activities, or assets of an economic unit, if such violation renders it impossible to correctly ascertain the economic performance, income, expenditure, profit, loss, debts, solvency or amount of assets of the economic unit, is punishable by a fine or deprivation of the right of employment in a particular position or operation in a particular area of activity, or up to one year's imprisonment.” 20. According to the practice of the Supreme Court, if a non-payment of taxes is intentional and continuous the latest version of Article 148-1 is applicable to acts which occurred prior to its entry into force provided that part of the criminal activity took place after the critical date. Criminal liability arises on two alternative, not cumulative, grounds: (1) if a person has committed the offence intentionally or (2) if a person has previously been subjected to administrative punishment for the same offence. Article 148-1 § 7 does not contain a separate offence, but it only qualifies the elements listed in §§ 1-5. Thus, a person may be convicted under Article 148-1 § 7 only if his acts encompass the elements of the offences set out in §§ 1-5. (Decision of the Criminal Division of the Supreme Court of 8 April 1997, Riigi Teataja III 1997, 14, 147; and decision of 27 January 1998, Riigi Teataja III 1998, 10, 104). The Supreme Court has also considered that a constant and continuous violation of the obligation to declare one's sources of income and to pay the required taxes created a persisting criminal state (Decision of the Criminal Division of the Supreme Court of 8 April 1998, case no. 3-1-1-50-98). The Supreme Court has upheld an accused's conviction under Article 148-4 of the Criminal Code concerning inadequate organisation of accounting between 1 January 1995 and 31 March 1996 (Decision of the Criminal Division of the Supreme Court of 31 March 1998, case no. 3-1-1-48-98). THE LAW I. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION 1.1. The applicant's conviction under the law of 13 January 1995 21. The applicant complained that his conviction under the criminal law in force as of 13 January 1995 of acts committed prior to that date infringed the guarantee against retrospective application of criminal law set forth in Article 7 § 1 of the Convention, which provides: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” A. Arguments of the parties 22. The applicant submitted that before 13 January 1995 a criminal conviction could be imposed only if a person had been previously subjected to an administrative punishment for a similar offence. However, he had no such previous punishment. The application of the concept of a continuing offence could not override the prohibition of the retroactive application of criminal law. 23. The Government maintained that the bill of indictment set clearly out the acts with which the applicant was charged as well as their legal characterisation. That applicant's conviction under Article 148-1 § 7 of the Criminal Code was in accordance with the provisions of the criminal law in effect at the time of the commission of the offence and the criminal law was not applied retroactively. The acts which were the subject of the charges amounted to continuing offences, which ended on 26 October 1995, that is after the entry into force of the criminal law on 13 January 1995 which did not necessarily require a previous administrative punishment for its application. The courts gave detailed reasons for bringing the incriminated acts under that law. There was a constant case-law of the Supreme Court on the interpretation of Article 148-1 § 7 of the Criminal Code and on the concept of an ongoing offence in tax cases. The case-law was published and accessible to everyone. It was thus foreseeable to the applicant that his acts entailed criminal responsibility. The notion of an ongoing crime has been widely known in the Estonian criminal law and used for years. Therefore the conviction of the applicant and the application of the concept of an ongoing crime by the domestic court was neither arbitrary nor contrary to Article 7. B. The Court's assessment 24. The Court recalls that the guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see S.W. v. the United Kingdom and C.R. v. the United Kingdom, judgments of 22 November 1995, Series A nos. 335-B and 335-C, pp. 41-42, § 35, and pp. 68 and 69, §§ 33, respectively. 25. According to the Court's case-law, Article 7 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crime nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused's detriment. From these principles it follows that an offence must be clearly defined in the law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable (ibidem, see also Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p. 22, § 52). 26. The Court observes at the outset that the present case is similar to that of Veeber v. Estonia (no. 2) (no. 45771/99, ECHR 2003-I) in which it found a violation of Article 7 § 1 of the Convention. It will examine the particular circumstances of the present case in the light of the application of the foregoing principles in that case (see paragraphs 31-37 of the afore-mentioned judgment). 27. In the instant case, the Court notes that the applicant was convicted under Article 148-1 § 7 of the Criminal Code, in force as from 13 January 1995, of tax offences which were committed in the period from April 1993 to October 1995. It observes that the application of the criminal law of 13 January 1995 to subsequent acts is not at issue in the presence case. The question to be determined is whether the extension of the law to acts committed prior to that date infringed the guarantee set forth in Article 7 of the Convention. 28. In this connection the Court recalls that it is not its task to rule on the applicant's criminal responsibility, that being primarily a matter for the assessment of the domestic courts, but to consider, from the standpoint of Article 7 § 1 of the Convention, whether the applicant's acts, at the time when they were committed, constituted offences defined with sufficient accessibility and foreseeability by the national law (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 51, ECHR 2001-II). 29. It notes that under Article 148-I of the Criminal Code tax evasion was an offence also prior to 13 January 1995, in particular in 1993-1994 when the applicant committed part of the incriminated acts. However, a prerequisite for criminal conviction under the law in force at that time was that the person concerned had been previously found liable and subjected to an administrative punishment for a similar offence. The version of Article 148-1 of the Criminal Code which came into effect on 13 January 1995 maintained the element of a previous administrative sanction, but added the condition of intent in its text. The two conditions were alternative, not cumulative, making a person criminally liable if one of the conditions was satisfied. Thus, the fact that an administrative punishment had not previously been imposed on an accused did not bar his criminal conviction under that law. However, the domestic courts brought under the 1995 law also the applicant's behaviour during the preceding two years, finding that it was part of a continuing criminal activity which lasted until October 1995. 30. The Court recalls that, by definition, a “continuing offence” is a type of crime committed over a period of time (see Ecer and Zeyrek v. Turkey, nos. 29295/95 and 29363/95, § 33, ECHR 2001-II). It notes that the applicant was charged with and convicted for having intentionally and continuously failed to pay the required taxes over a period of time. While the starting point of the applicant's conduct pre-dated the entry into effect of the law under which he was convicted, the conduct lasted beyond the critical date. 31. The Court observes that, according to the text of Article 148-1 of the Criminal Code before its amendment in 1995, a person could be held criminally liable for tax evasion only “if an administrative punishment ha[d] been imposed on the offender for a similar offence.” The condition was thus an element of the offence of tax evasion without which a criminal conviction could not follow. It further observes that the conduct of which the applicant was convicted concerned for the most part the period prior to 13 January 1995 and that the sentence imposed on him – four years suspended imprisonment – took into consideration his behaviour both before and after that date. In these circumstances, the approach of the domestic courts could not but affect also the severity of the sanction. 32. As regards the Government's submission that the established case-law on the interpretation and application of Article 148-1 § 7 of the Criminal Code made the risk of conviction foreseeable to the applicant, the Court notes that the Supreme Court decisions referred to by the Government were taken on 8 April 1997, 27 January 1998 and 8 April 1998. The applicant's complaint concerns however his conduct in 1993 and 1994. During that period the applicant could not expect that at the first discovery of his behaviour he would risk a criminal conviction, considering the terms of criminal law in force at that time. 33. In the light of the above, the Court finds that the domestic authorities applied retrospectively the 1995 law to behaviour which did not previously constitute a criminal offence. 34. Consequently, there has been a violation of Article 7 § 1 of the Convention. 1.2. The applicant's conviction under the law of 20 July 1993 35. The applicant complained that in finding him guilty of the offence under Article 148-4 of the Criminal Code, which had entered into force on 20 July 1993, the national courts applied retrospectively the law to acts committed prior to that date. A. Arguments of the parties 36. The applicant submitted that he could not be held responsible under Article 148-4 of the Criminal Code for the period prior to its entry into force on 20 July 1993. The application by the courts of the concept of a continuing offence allowed them to evade the prohibition of retrospective application of criminal law in Article 7 of the Convention. 37. The Government argued that Article 7 of the Convention had not been breached. Although the applicant's company lacked any bookkeeping as from 5 May 1993, this state of affairs continued after the entry into force of Article 148-4 of the Criminal Code on 20 July 1993. Moreover, the applicant had the obligation to keep proper accounting records also prior to that date, according to the Government decree of 6 July 1990. It was further maintained that the present case was distinguishable from the Veeber (no. 2) case, cited above, in that most of the applicant's acts fell within the period after 20 July 1993, from which date onwards the risk of criminal punishment was clearly foreseeable for the applicant. The Government also referred to the jurisprudence of the Supreme Court concerning the application and interpretation of the law and the concept of an ongoing crime. B. The Court's assessment 38. The Court notes that the applicant was convicted under Article 148-4 of the Criminal Code for having failed adequately to organise bookkeeping in his company during the period of its activity from 5 May 1993 until 1 October 1993. It observes that under the Government decree of 6 July 1990 the applicant was required to ensure proper bookkeeping in his company during the whole period of its operation (see paragraph 11 above). However, criminal liability for an infringement of the relevant rules was established only on 20 July 1993, when Article 148-4 of the Criminal Code took effect. In applying the criminal law to the applicant's behaviour before the material date, the domestic courts found that it was part of a continuing offence which lasted beyond that date. 39. While it is true that the applicant's conduct concerned mostly the period after 20 July 1993, the length of the period to which the law was applied retrospectively is not decisive in considering whether or not the guarantees of Article 7 of the Convention have been respected. 40. Finally, the Court notes that the jurisprudence referred to by the Government relates to the years 1997-1998, whereas the applicant's complaint concerns a situation before 20 July 1993. In the absence of a law on criminal liability for inadequate organisation of accounting, the applicant could not foresee the risk of criminal punishment for his conduct during that period. 41. In these circumstances, the Court finds that the domestic courts applied retrospectively the 1993 law to behaviour which previously did not constitute a criminal offence. 42. Accordingly, there has been a violation of Article 7 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 43. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 44. The applicant submitted that he had been unjustly ordered to pay the tax authorities 1,596,618.42 Estonian kroons (EEK) upon his conviction. He claimed the reimbursement of EEK 92,280, a sum which he had already paid to the authorities. 45. The Government contested that claim. 46. The Court recalls that it will award monetary compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found. It notes that the applicant's claim relates to his obligation to pay outstanding taxes which were due under the relevant tax laws. Although the order to pay the required taxes was issued by the criminal court it was separate from the suspended sentence imposed on the applicant and did not involve a tax surcharge or a fine (see paragraph 11 above). As there is no causal link between the sums claimed for pecuniary damage and the violation of Article 7 § 1 of the Convention, the Court rejects the applicant's claim under this head (see Veeber v. Estonia (no.2), cited above, § 42). B. Non-pecuniary damage 47. The applicant claimed EEK 50,000 (approximately 3,196 euros (EUR)) for moral suffering and loss of working days caused by the criminal proceedings and his conviction. 48. The Government submitted that the finding of a violation would constitute in itself sufficient just satisfaction. In the alternative, they invited the Court to award a sum not exceeding EUR 2,000. 49. The Court considers that the applicant must have suffered distress which cannot be compensated solely by the finding of a violation. Deciding on an equitable basis, the Court awards the applicant EUR 3,000 for non-pecuniary damage. C. Costs and expenses 50. The applicant sought the reimbursement of EEK 23,600 (EUR 1,508.31) which he had paid for legal assistance in the domestic and Strasbourg proceedings. 51. The Government questioned whether the sum reflected the actual amount of work done by the applicant's lawyer and regarded the claim as excessive. They invited the Court to award an amount it considered reasonable. 52. The Court notes that the applicant has duly documented the sum claimed and allows it in full. D. Default interest 53. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 7 § 1 of the Convention on account of the retrospective application of the criminal law of 13 January 1995; 2. Holds that there has been a violation of Article 7 § 1 of the Convention on account of the retrospective application of the criminal law of 20 July 1993; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (i) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage; (ii) EUR 1,508.31 (one thousand five hundred and eight euros and thirty one cents) in respect of costs and expenses; (iii) any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 10 February 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleNicolas BratzaRegistrarPresident

THIRD SECTION CASE OF SAID BOTAN v. THE NETHERLANDS (Application no. 1869/04) JUDGMENT (Striking out) STRASBOURG 10 March 2009 FINAL 10/06/2009 This judgment may be subject to editorial revision. In the case of Said Botan v. the Netherlands, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Corneliu Bîrsan,Boštjan M. Zupančič,Alvina Gyulumyan,Egbert Myjer,Ineta Ziemele,Ann Power, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 17 February 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 1869/04) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Somali national, Mrs Sahra Said Botan (“the applicant”). 2. The applicant was represented by Ms J. van der Haar, a lawyer practising in Nijmegen. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. 3. The applicant alleged that the obligation to leave the Netherlands in order to apply and wait for a provisional residence visa in Somalia or a neighbouring country infringed her right to respect for her family life. 4. By a decision of 12 May 2005, the Court declared the application admissible. 5. The applicant, but not the Government, filed further written observations (Rule 59 § 1). After consulting the parties, the Chamber decided that no hearing on the merits was required (Rule 59 § 3 in fine). THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 6. The applicant was born in 1969 and lives in Nijmegen. 7. The applicant came to the Netherlands on 2 January 1995 and applied for asylum. Her request was rejected, the final decision in this respect being taken by the Regional Court (arrondissementsrechtbank) of The Hague on 17 April 1997. 8. Meanwhile, in 1996, the applicant had started a relationship with a Mr F.A., also of Somali origin. In 1998 Mr F.A. obtained Netherlands nationality. The applicant and Mr F.A. were married on 30 January 2001. They had three children, born on 2 November 2000, 17 April 2002 and 5 October 2004 respectively, who have Netherlands nationality. 9. On 15 May 2001 the applicant requested a residence permit for the purpose of staying with her spouse, who was in full-time gainful employment. This request was denied by the Deputy Minister of Justice (Staatssecretaris van Justitie) on 15 October 2001 for the reason that the applicant did not hold the required provisional residence visa (machtiging tot voorlopig verblijf), which had to be applied for at a representation of the Netherlands in the country of origin or, if there was no such representation in the country of origin, at the representation situated closest to that country. 10. The applicant filed an objection (bezwaar) against this decision, arguing that she ought to be exempted from the visa requirement as she was unable to return to Somalia or, given that there were no representations of the Netherlands in that country, to one of Somalia’s neighbouring countries. Not only would this contravene the rights of her Dutch children in the Netherlands, it was also realistically impossible for her to travel: as there was no functioning Somali Government, she could not obtain a travel document. 11. After the Deputy Minister rejected her objection on 27 February 2002, the applicant appealed to the Regional Court of The Hague, sitting in Arnhem, which court upheld the appeal on 24 April 2003. 12. The Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; the successor to the Deputy Minister of Justice) lodged an appeal against the Regional Court’s decision. In a decision of 18 July 2003, the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State; herein after “the Division) found in favour of the Minister. The Division reiterated that the ratio of the visa requirement lay in preventing the national authorities, prior to a decision on a person’s request for admission having been taken, from being confronted with a fait accompli as a result of that person’s illegal presence in the Netherlands. If an alien, who had entered the Netherlands without a visa but with the intention of settling there, could be exempted from the visa requirement simply by asserting that it was impossible to return, this would have serious negative repercussions on the policy. Noting that family life had been started at a time when the applicant was not residing lawfully in the country, the Division further found that insisting on the visa requirement did not violate Article 8 of the Convention. It added that the impugned decision did not constitute a definite refusal of family life being exercised in the Netherlands, but merely an enforcement of legal requirements. Finally, it had not appeared that there were any objective impediments to family life being developed abroad. For these reasons, the Division quashed the decision of the Regional Court and rejected the appeal which the applicant had lodged with that latter court. B. Developments after the application was declared admissible 13. On 4 November 2005 the respondent Government informed the Court that the applicant had been granted a residence permit for the purpose of asylum pursuant to a temporary “policy of protection for certain categories” (categoriaal beschermingsbeleid, see paragraph 14 below) adopted by the Minister on 24 June 2005 in respect of asylum seekers coming from certain parts of Somalia. II. RELEVANT DOMESTIC LAW 14. A temporary residence permit for the purpose of asylum may be issued to persons whose return to their country of origin is considered by the responsible (Deputy) Minister to constitute exceptional harshness in view of the general situation pertaining in that country (article 29(1)(d) of the Aliens Act 2000 (Vreemdelingenwet 2000)). Pursuant to this provision, the (Deputy) Minister may pursue a policy of protection for a particular category of asylum seekers. The criterion of exceptional harshness, laid down in this provision, is not a formal one, such as the declaration of a state of siege, a state of war or the existence of some form of armed conflict, but a material one. It relates to whether the risks that could arise on a person’s return, in connection, inter alia, with armed conflict or the like would be unreasonable from a humanitarian perspective or from the perspective of the law of armed conflict. In general, protection for certain categories is justified only if armed conflict (including armed civil conflict) has disrupted daily life to such an extent that such humanitarian risks arise. 15. A person who has held a temporary permit pursuant to article 29(1)(d) of the Aliens Act 2000 for a period of five years may be eligible for an indefinite residence permit for the purpose of asylum (article 34(4) of the Aliens Act 2000). 16. The requirement to hold a provisional residence visa when an application is made for a residence permit for non-asylum related purposes (for the purpose of exercising family life, for example) does not apply when the person concerned held a temporary or indefinite residence permit for the purpose of asylum immediately prior to the lodging of that application (article 17(1)(e) of the Aliens Act 2000). THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 17. The applicant claimed to be the victim of a violation of Article 8 of the Convention, the relevant parts of which provide: “1. Everyone has the right to respect for his ... family life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 18. The Court notes that the applicant has been granted a residence permit (see paragraph 13 above) and the question therefore arises whether there is an objective justification for continuing to examine this complaint or whether it is appropriate to apply Article 37 § 1 of the Convention, which provides as follows: “The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (a) the applicant does not intend to pursue his application; or (b) the matter has been resolved; or (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” 19. In a letter of 25 November 2005, the applicant requested the Court to continue its examination of the present application, notwithstanding the fact that she was now residing lawfully in the Netherlands. In the opinion of the applicant, the residence permit she had been granted provided insufficient protection of her right to respect for family life, given that it could be withdrawn whenever the Minister decided that the situation in Somalia no longer justified pursuing a protection policy. 20. As it is thus clear that the applicant wishes to pursue her application, the Court must, in order to ascertain whether Article 37 § 1 (b) applies to the present case, answer two questions in turn: first, whether the circumstances complained of directly by the applicant still obtain and, second, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 97, 15 January 2007, and El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 30, 20 December 2007). In the present case, that entails first of all establishing whether the applicant is still required to apply for a provisional residence visa in either Somalia or a neighbouring country before she may be eligible for a residence permit allowing her to reside with her husband and children in the Netherlands; after that, the Court must consider whether the measures taken by the authorities constitute sufficient redress for the applicant’s complaint. 21. As to the first question, it is clear that the applicant is currently lawfully residing in the Netherlands and that there is no question of her having to apply for a provisional residence visa. 22. As regards the second question, the Court reaffirms that Article 8 cannot be construed as guaranteeing, as such, the right to a particular type of residence permit. Where the domestic legislation provides for several different types, the Court must analyse the legal and practical implications of issuing a particular permit. If it allows the holder to reside within the territory of the host country and to exercise freely there the right to respect for his or her private and family life, the granting of such a permit represents in principle a sufficient measure to meet the requirements of that provision. In such cases, the Court is not empowered to rule on whether the individual concerned should be granted one particular legal status rather than another, that choice being a matter for the domestic authorities alone (see Sisojeva and Others, cited above, § 91). 23. In this context the Court notes that although the residence permit granted to the applicant may not have been issued for the specific purpose of allowing her to reside in the Netherlands with her husband and children, it nevertheless enables the applicant to enjoy family life in the Netherlands. Moreover, while the policy pursuant to which the applicant was granted a residence permit may, at some point in the future, be amended or revoked, it is far from certain that the applicant will then once again be required to apply for a provisional residence visa abroad (see paragraphs 15-16 above) or that, in the circumstances pertaining at that time, such a requirement would be capable of raising an issue under Article 8 of the Convention. 24. Having regard to the fact, therefore, that the applicant has been granted a residence permit in the Netherlands, enabling her to exercise freely in that country her right to respect for her family life as protected by Article 8 of the Convention and interpreted in the Court’s established case-law (see, mutatis mutandis, Boughanemi v. France, judgment of 24 April 1996, Reports 1996-II, pp. 607-08, § 35; C. v. Belgium, judgment of 7 August 1996, Reports 1996-III, pp. 922-23, § 25; Boujlifa v. France, judgment of 21 October 1997, Reports 1997-VI, p. 2263, § 36; and Buscemi v. Italy, no. 29569/95, § 53, ECHR 1999-VI), the Court considers that her complaint has been adequately and sufficiently remedied (see Sisojeva and Others, cited above, § 102). 25. Consequently, the Court finds that both conditions for the application of Article 37 § 1 (b) of the Convention are met. The matter giving rise to the applicant’s complaint can therefore now be considered to be “resolved” within the meaning of Article 37 § 1 (b). Finally, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination of the application under Article 37 § 1 in fine. 26. Accordingly, the application should be struck out of the Court’s list of cases. FOR THESE REASONS, THE COURT UNANIMOUSLY Holds that the matter giving rise to the applicant’s complaint has been resolved and decides to strike the application out of its list of cases. Done in English, and notified in writing on 10 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident

Thursday, 24th May 2001 J U D G M E N T LORD JUSTICE PETER GIBSON: The employer, Walter Rodney Housing Association, appeals with the permission of this court (May LJ) from the order of the EAT on 14th July 2000. Thereby the EAT allowed the appeal of the employee, Yaw Asamoah-Boakye, from that part of the decision of an Employment Tribunal in Reading whereby the employee's claim that he had been unfairly dismissed was dismissed. The employer is a small housing association providing low-cost housing to the ethnic minority section of the community in Reading. The employee commenced his employment in January 1993, when he was employed as a finance officer. During the course of his employment he qualified as an accountant and latterly was employed under a contract which described him as such. In the autumn of 1998 a review of his functions was undertaken by the employer. It was concluded that there was no longer any need to continue to employ a finance manager in the way the employee had been employed. It was proposed that his post should be shared between the employer and another housing association. The decision was taken that the employee was redundant. On 16th October 1998 he was given notice of redundancy, expiring on 14th December. He was told he would receive a redundancy payment of £3,500. Following discussion between the employer and the other housing association, the latter, in early November 1998, agreed to subsidise the employee's post for another 12 or 18 months. The director of the employer, Patricia Andrade, who was the employee's immediate line manager, told the employee of the employer's decision to withdraw the notice of redundancy. He was away from work through sickness from mid-December until 19th January 1999 when he returned to work, continuing to accept his salary. But the relationship between the employee and Miss Andrade, as the Tribunal was to find, broke down and he adopted an uncooperative attitude towards her. Mediation was arranged. On 12th March 1999 he told the mediator that he had reached the end of the road with the employer and was very unhappy. In the course of discussions he was asked what he would require in order to leave and resolve the matter. He made it clear that he wanted either the redundancy payment or a substantial salary increase. That was not acceptable to the employer. On 11th March 1999 the employee had lodged an originating application with the Tribunal claiming a redundancy payment. He wanted the Tribunal to make the employer pay that payment so that he could then leave. On 12th May a meeting took place between the employee, White Edevbie (the Chair of the employer) and Andrea Williams-Mackenzie (the Human Resources Director). The employer offered to pay him £3,600, not as a redundancy payment but on the basis that he would be leaving his employment and would withdraw his originating application due to be heard the next month. The employer wanted the terms of an agreement to be incorporated into a compromise agreement to satisfy section 203 of the Employment Rights Act 1996 ("the Act"). Section 203(1) makes void any provision precluding an employee from bringing proceedings under the Act, but by section 203(2) that was not to apply to any agreement to refrain from continuing proceedings if certain conditions specified in subsection (3) were satisfied. They include conditions that the agreement is in writing and that the employee has received advice from an independent adviser. The employer expressly told the employee that the agreement should be run past his adviser. On 13th May a letter expressed to be subject to contract and in a form which would comply with section 203 was sent by the employer's solicitors, Sharpe Pritchard, to the employee. It stated that the employee had lost confidence in the employer and that it would not be to the advantage of either party for the working relationship to continue. Accordingly the employer was proposing terms upon which the contract could be brought to an end by mutual agreement. The terms included termination of the employment on 25th May and the payment of salary up to that date; the payment of £3,600 on that date; a provision that the employer would try to agree with the employee a form of word explaining his departure; an agreement that the employee would not proceed with the tribunal proceedings; and a compromise of existing and future claims by the employee against the employer arising out of the employment or its termination. It was to be a term of the agreement that the employee had received independent legal advice from a solicitor who had to be identified. It was to be stated that the parties believed that the agreement satisfied the conditions for regulating compromise agreements under the Act. If the offer was accepted, the employee had to sign it and take it to his solicitor for signature, and then it was to be returned to the employer. The employer was to agree to pay the reasonable fees of the solicitor up to a specified sum. By a letter dated 14th May the employee replied to Sharpe Pritchard, saying that he would agree to the terms and conditions subject to amendments. One was that the employment would end on 31st May and he should receive payment for accrued holidays of 16 days. The other was that he wanted "a good reference from my employers to safeguard my future job prospects with potential employees". The employee asked for a revised agreement incorporating the amendments. Sharpe Pritchard on 18th May wrote back enclosing an amended agreement. The two requests were accommodated to this extent, that the payment was to include payment for six days' holiday and three days' accrued time off in lieu, and there was added a term that the employer would supply the employee with a copy of the reference from which the employer would not depart. But nothing was said about what would be in the reference. Nevertheless, the employee wrote on 19th May to Sharpe Pritchard saying that he had spoken to Mr Edevbie and agreed seven days as the accrued time off in lieu; he asked that an amended agreement be sent to him; he also said that he had arranged for his solicitor to sign the agreement at 10.00 a.m. the next day if it was received; he said that Miss Williams-Mackenzie had told him that it was the employer's wish that he proceed on leave the next day, and Miss Andrade had confirmed that; and he said that he agreed in principle to proceed on leave the next day provided that the agreement was then signed. But on 19th May the employee cleared his desk, handed over his keys, cheque books and computer passwords, said goodbye and left the office. A draft amended agreement dated 19th May was sent to the employee, but it was not signed on 20th May or at all by the employee or his solicitors, Rowberry Morris. On 21st May they faxed Sharpe Pritchard, saying that, having looked at the agreement, they were unable to advise the employee to sign it without taking up two points. The first point was one which in the event was not proceeded with, and I need say nothing further about it. The second was that they wanted to be supplied with words explaining the employee's departure and with a copy of the reference. On 24th March Sharpe Pritchard replied that the proposed reference and explanatory words would be provided. Rowberry Morris in a further letter the same day to Sharpe Pritchard said that the employee required the reference and explanatory words before he signed the agreement. On 26th May Sharpe Pritchard supplied the explanatory words suggested and faxed a draft reference drafted by Miss Andrade. This set out the employee's employment with the employer and included "His attendance at work has always been good with the minimum time off sick. He has always been punctual with his time keeping." Sharpe Pritchard said that they looked forward to the return of the agreement following receipt of which the £3,600 would be paid. On 27th May Rowberry Morris agreed the proposed explanatory words, but suggested certain amendments to the reference and said that the employee noted that there was nothing in the reference which commented upon his performance of his duties. They asked that this be incorporated in the reference. The same day Sharpe Pritchard replied. They accepted the suggested amendments to the reference, but said that the employer was not prepared to include any comment as to the employee's performance. Also on 27th May the employee himself wrote to Sharpe Pritchard reminding them that under the terms of the proposed agreement his employment with the employer was to cease on 31st May and all payments due to him made by that date; but he said that if agreement was not reached and the payment was not made by 28th May he would return to work on 1st June or take whatever action he deemed appropriate. On 28th May Sharpe Pritchard wrote to the employee repeating that the employer was not prepared to make any further changes to the reference. They asked for a copy of the signed agreement. They said that as soon as that was provided a cheque would be posted to him. They told him that terms having been agreed to end his employment, it would not be appropriate for him to attempt to return to work on 1st June and said that the employer had no intention of reneging on the deal arrived at. Sharpe Pritchard also wrote to Rowberry Morris saying that the employer could not go further with the proposed reference without running the risk of misleading a potential employer. They said that the employee had already received payment in respect of accrued holiday and agreed time off in lieu. They claimed that the employee had acted in a way totally inconsistent with the employment relationship and should not attend for work on 1st June as he would not be allowed entry to the premises. By a second letter of 28th May to the employee, Sharpe Pritchard repeated that message. The agreement was never signed. The employee never received the payment of £3,600 contemplated by the agreement. On 3rd June the employee sought to amend his originating application to claim unfair dismissal, saying that that occurred on 31st May 1999. That application was treated by the Tribunal as a fresh application. At the hearing before the Tribunal the employee represented himself. The employer was represented by counsel, Mr Oliver Campbell, who appears before us today. The Tribunal after a two-day hearing found that an agreement for the termination of employment had been reached in principle on 12th May, and that by 28th May the relationship between the parties effectively came to an end for all practical purposes. It said that it bore in mind the statutory definition of "dismissal" contained in section 95 of the Act. It rejected the employer's submission that the employee had resigned and said that there was no dismissal in the conventional sense. But it accepted that the action of the employer in telling the employee that he would no longer return to the workplace was something which could amount to a dismissal. It considered the question posed by Sir John Donaldson, Master of the Rolls, in Martin v Glynwed Distribution Ltd [1983] ICR 511 at page 519: "Who really terminated the contract of employment." The Tribunal expressed its conclusion in paragraph 8 of the decision in this way: "In the context of the work place, we do not think that it is entirely appropriate that there should be a minute analysis and dissection of all the various factors involved in this case. On that basis, it seems to us that the actions of the parties in reaching an agreement, in principle, that the applicant would leave and would be paid a sum of money in return for so doing and discontinuing his action, coupled with the applicant's actions in leaving on 19 May, accepting the suggestion to him that he should take the remainder of that month as leave, surrendering his keys, passwords, cheque books and saying goodbye and cleaning his desk really amount, in our view, to a mutual termination of the applicant's contract of employment. It is true that there was a small area of dispute, small but not unimportant as far as the applicant is concerned, as to the precise wording of the reference. The respondents have indicated that they were prepared to provide a reference and they were prepared to supply a copy of it to the applicant and stand by that reference if called upon to do so by a future employer. That is a factor we take into account. We take into account the fact that the respondents told the applicant that he could not return to the work place, but that seems to us to be an incident which occurred at a stage when the employment relationship, for all practical purposes, had already come to an end. In these circumstances, the view the Tribunal takes, as we have indicated, is that this was not a dismissal by the respondents. It was not a resignation by the applicant. It was a mutual termination following an agreement which the parties had reached. It follows, there having been no dismissal, no question can arise of unfair dismissal and that aspect of the claim fails." The Tribunal went on to consider whether the employer was in breach of contract, but held that because the employee had not withdrawn his tribunal case, the employer was not in breach of the agreement to pay the employee £3,600. On the employee's appeal, the EAT identified the critical question as being whether the parties had reached a binding agreement to terminate the employment. Judge Peter Clark, giving the judgment of the EAT, said that on the facts as found and agreed the Tribunal was bound to answer the question in the negative for three reasons: (1)The Tribunal had found that the employee did not resign. (2)The correspondence showed that the employer required the employee to sign a valid form of compromise agreement, which its own solicitors drafted, after he had taken independent advice and wanted to be assured that the employee would withdraw his tribunal application and not make any further complaint arising out of the termination of his employment. The written agreement was a condition precedent to agreement being reached. (3)The parties did not in fact reach agreement. The only agreement was "in principle" and there was an area of dispute not unimportant to the employee concerning the wording of the reference. Accordingly the EAT allowed the appeal on that point. It further held that the employee was dismissed by the employer, but remitted the case to a further tribunal for an inquiry into whether or not the dismissal was fair. Before us Mr Campbell submits: (1) the Tribunal's decision that the employee had not been a dismissed was a decision of fact which it was entitled to reach and which ought not to have been disturbed by the EAT; (2) the EAT was wrong to hold that there was no binding agreement because on 19th May 1999 the parties were in agreement on all material issues; (3) if those submissions were wrong, the EAT should have remitted the entire case including the question of dismissal to a fresh tribunal. I shall consider these in turn. (1) Dismissal Mr Campbell submitted that the question posed by Sir John Donaldson in Martin which was considered by the Tribunal, was framed to encouraged tribunals to adopt a pragmatic approach to dismissal. He argued that the Tribunal could adopt a pragmatic and a less strict approach to the requirements of contract law than would be appropriate in determining a commercial dispute. He referred to Terinex Ltd v D'Angelo [1981] ICR 12 at pages 15 E and 17 B, although he acknowledged that the judgment of the EAT in that case did not provide direct or express support for his submission. He said that the Tribunal's decision that there had been a termination of employment by mutual agreement was purely a question of fact on which the Tribunal heard much evidence, and he submitted that its decision could not be said to have been perverse. It is of course right that the Tribunal, as an industrial jury, should adopt a realistic approach to the questions before it. The statutory question which section 95(1)(a) of the Act posed was whether the contract was terminated by the employer. If it had been terminated by mutual agreement then there could be no dismissal. Whether there was a dismissal is generally dependent on the primary facts found by the Tribunal and would normally not involve questions of law. But the Tribunal could not properly find a termination by mutual agreement unless in law there was a concluded agreement for such termination. If the parties negotiate for a termination on a number of terms, it would be an error of law for the Tribunal to find a concluded agreement when not all the terms had been agreed. Nor could there be a concluded agreement if the only agreement was one reached in principle. Most pertinently, if the negotiations were on the basis that the parties had to enter into a written agreement on which the employee had to receive advice from a solicitor and no such agreement was ever signed, there could not be an agreement, even if some of the terms were agreed, and it would be an error of law to hold otherwise. The classic statement of the law in this area is that of Parker J in Von Hatzfeldt-Wildenburg v Alexander [1912] 1 Ch 284 at 288 and 289: "It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognise a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored. The fact that reference to the more formal document is in words which according to their natural construction import a condition is generally if not invariably conclusive against the reference being treated as the expression of a mere desire." That was said in the context of an agreement in correspondence, but the same principle applies to agreements said to be reached both in correspondence and orally. Unfortunately the Tribunal does not appear to have considered this line of authority and so did not consider whether the execution of a written compromise agreement was a term of any agreement reached between the parties. The employee, who was representing himself, is not a lawyer and it was not Mr Campbell's case before the Tribunal that there was a termination by mutual agreement. He argued for a resignation by the employee. In these circumstances, these points of law being relevant to the question before the Tribunal, I am not able to accept Mr Campbell's first point. (2) Binding agreement Mr Campbell submits that on the facts the parties had reached agreement by 19th May on all material, alternatively all important, points and that the employee was thereby bound. Mr Campbell points to the fact that an agreement in principle had been reached by 12th May for the termination of employment and that on 19th May the employee had cleared his desk, handed over the keys, cheque books and computer passwords, said goodbye and left. He said that thereby the employee was implementing the agreement. In my judgment this is an impossible submission. As I have already indicated, it is not the law that an agreement is concluded merely because there is an agreement on some important or material terms without agreement having been reached on all the terms. It is plain from the commencement of the negotiations at the meeting on 12th May 1999 that it was the employer who was insisting on an agreement in writing to incorporate the terms on which the employment would terminate and that this would necessitate the employee receiving independent legal advice from a solicitor. The employer did not want further proceedings to be commenced before the Tribunal, nor did he want the existing proceedings to continue. The need to comply with section 203 was plainly present to the mind of the employer. I quote from the employer's minutes of that meeting what Miss Andrade said to the employee. "I will offer you £3,600 pay, asap as and when you enter into an agreement to waiver your case at ET and end your employment with the association. You have to run it past your advisor." Later in the minutes it is recorded that a copy of a compromise agreement would be sent to the employee, and that he was to contact the employer to say whether he accepted the terms in the compromise agreement and would leave the employer. The draft agreement which was sent to the employee was headed "subject to contract", thereby recognising that a contract was required. I have already referred to the terms of the draft which was sent. It is plain that the employer wanted the agreement to cover everything to do with the termination of employment, including what was to be said to outsiders about the employer leaving the employer's employment. It is no less plain that it was considered crucial that the employer's solicitor should have given advice before the agreement was signed. All the subsequent correspondence until the negotiations broke down is consistent with the view that the execution of a written contract was essential. When the employee asked for a provision to be inserted in the agreement that he should receive a good reference, the reaction of the employer was not to reject that as being unacceptable or unimportant but to incorporate a provision into the draft agreement, and so it became a matter for negotiation. I am unable to find crucial significance in what the employee did on 19th May, given that he had not yet received advice from his solicitor, still less sign the agreement. What the employee did when he cleared his desk, and so on, and in leaving was to proceed on leave, as he indicated by his letter on that day had been the request of the employer. That does not signify that the employee was recognising that he was terminating his employment that day, even though there can be no doubt but that he expected that all would go well and that he would be signing the agreement the following day. In my judgment it is plain that there was never any agreement on one matter of importance to the employee, that is to say the question of a reference. It is not for this court to consider whether the employee was acting reasonably or unreasonably in insisting on such a reference. Until there was a binding agreement, he was free to stipulate whatever terms he wanted to be included in the agreement as a condition of his acceptance. But no agreement was reached, no agreement was ever executed and in my judgment therefore the Tribunal was plainly wrong to hold that there was a termination of the employment by mutual agreement, and the EAT was plainly right to hold that there was no binding agreement. (3) Remission Mr Campbell submits that the EAT should have remitted the whole case, including the question whether there was a dismissal by the employer or a resignation by the employee to a fresh tribunal. The employer did not appeal against the Tribunal's finding that the employee did not resign, yet Mr Campbell submits that there was considerable evidence before the Tribunal that the employee had resigned; and he points to the finding at the meeting on 12th May that the employee had told the employer that he had reached the end of the road with the employer and was very unhappy and that on the 19th May he had cleared his desk and left. In my judgment, these facts do not provide any basis for going behind the finding by the Tribunal that the employee did not resign. In my judgment the Tribunal was plainly right in that conclusion. If there was no resignation and no mutual agreement that the employment was at an end, given that the employee was told by the employer that his employment was at an end and that he should not attend for work, it is an inescapable conclusion that he was dismissed by the employer. I see no reason to interfere with the EAT's decision that the case be remitted to a fresh tribunal only to enquire into whether the dismissal was fair. For these reasons I would dismiss this appeal. LORD JUSTICE BUXTON: I agree. There is nothing wish to add. LORD JUSTICE JONATHAN PARKER: I also agree. Order: Appeal dismissed with costs assessed as agreed at £165.80

The Chancellor: Introduction Mr Onobrakpeya, a conveyancer, and Mr Ikoku, an immigration law specialist, carried on business as solicitors in partnership in the name of South Bank Solicitors ("SBS") from, at the latest, 1st December 2005. On 20th November 2006 Investigation Officers of the defendant ("the Law Society" including where necessary references to the Solicitors Regulation Authority) inspected the books and accounts of SBS and concluded that they did not comply with the Solicitors' Accounts Rules. Accordingly on 9th January 2007 the partners were interviewed by the Investigation Officers. Such officers reported their findings to the Law Society on 26th February 2007. On 29th June 2007 the Law Society commenced disciplinary proceedings against Mr Onobrakpeya, Mr Ikoku and a Mr Ayeni. On 17th and 18th October 2007 the Law Society intervened in the practice of SBS pursuant to its powers under s.35 of and Schedule 1 to the Solicitors Act 1974 on the ground, in the case of Mr Onobrakpeya, of suspected dishonesty and, in the case of Mr Ikoku, failure to comply with the Accounts Rules. The Law Society appointed Mr J.H.R. Dunn, a partner in Devonshires, as the Intervention Agent and person to take possession of the documents referred to in paragraph 9(1)(a) of Part II of Schedule 1 to the Solicitors Act 1974 ("the Intervention Agent"). For the year from 1st October 2007 to 30th September 2008 the professional indemnity insurance of SBS required by the Solicitors' Indemnity Insurance Rules made under s.37 Solicitors Act 1974 was provided by the claimant ("Quinn"). By the terms of that policy ("the Policy") each insured at SBS was entitled to an indemnity in respect of any civil liability in respect of which a claim was first made in the course of that year except to the extent that the claim arose from dishonesty or the fraudulent act or omission committed or condoned by that individual. Clause 6.2 contained provisions for notifying claims in the following terms: "6.2 Notice and Claims Procedure In the event of any occurrence which may give rise to liability under this Policy, and regardless of the likelihood or probability of a claim being brought under this Policy: a) The Insured shall: 1) Notify the Company immediately you become aware of any incident or as soon as practically possible (or in accordance with any agreement made with The Company) and as soon as possible thereafter, provide any other documentation that The Company may require with the regards [sic] to the occurrence. 2) Notify The Company by telephone immediately or as soon as practically possible (and in any event on the next business day) that he has knowledge of any impending prosecution inquest or fatal injury in connection with any occurrence for which there may be liability under this Policy, and shall as soon as possible thereafter, provide that notification in writing. 3) Forward to The Company immediately on receipt every written notice or information as to any verbal notice of claim and any communication whatsoever relating to the occurrence. 4) Give all such information and assistance as The Company may require." A number of claims against SBS by former clients were made and notified to Quinn in the year covered by the Policy. The nature and cause of the claims may be deduced from the witness statement of Quinn's solicitor, Mr Whitfield, made on 23rd March 2009. In paragraph 6 he said: "I am aware, from examination of statements on the SBS client account, of numerous cases in which SBS received into client account sums of money from lenders for residential property transactions whereafter sums have been paid out usually not in sums consistent with the application of loan monies to property purchase, and where the lender has alleged (usually backed up with Land Registry documentation) that the property purchase contemplated has not taken place and therefore that the monies were paid out (a) without the authority of the person to whose order the funds were received and (b) by necessary implication, dishonestly. The only persons on whose instructions SBS' bankers were to make payments from client account were Messrs Onobrakpeya and Ikoku themselves, the signature of one of them sufficing." Quinn has declined to indemnify Mr Onobrakpeya in respect of any claim on the ground that "the fraud provision is engaged". It is concerned to know if it is entitled to refuse to indemnify Mr Ikoku in any given case on the ground that he condoned the fraud. On 17th February 2009 the solicitors for Quinn wrote to the Intervention Agent asking whether he had any files in respect of 16 specific and identified purchase transactions and if so whether Quinn might have access to them. The letter concluded: "In addition to these individual files we would like access to the accounting documentation of [SBS] and in particular the bank statement reconciliations and any reports sent by the Accountants to the former partners of Southbank." In his reply the Intervention Agent indicated that his team had been unable to locate any of the files relating to the 16 specific transactions and was unable to provide access to general accounting documentation or bank statement reconciliations for the reasons previously explained in his letter of 10th February, namely "to preserve client confidentiality in accordance with its primary concern to protect the interests of the former clients and in accordance with the Code of Conduct". On 25th March 2009 Quinn commenced these proceedings by the issue of a Part 8 claim against the Law Society. The relief sought is an order that the Law Society do permit Quinn to inspect "all documents of South Bank Solicitors within [its] power and control" and to take copies thereof. The purpose for which that order is sought (as specified in paragraph 6f) is to consider whether Quinn is or is not obliged to indemnify Mr Ikoku. On 23rd October 2009 Peter Smith J dismissed the application for the reasons given in his judgment handed down that day and now reported at [2010] Lloyd's Rep. I. & R. 336. Quinn now appeals with the permission of the Master of the Rolls. There is no issue in respect of files in respect of transactions where the client has made a claim against SBS which has been notified to Quinn. In such a case the Law Society takes the view that the making of the claim constitutes a waiver of client confidentiality and privilege and has allowed Quinn to have access to those files. In addition copies of all bank statements of SBS have been provided to Quinn. As to the remainder of the documents of SBS in the possession of the Law Society it appears to be common ground that they all contain information confidential to one or more former clients of SBS whose privilege has not been waived. The Statutory Regulation of Solicitors Before considering the detailed submissions of counsel for Quinn it is necessary to say something of the regulatory system. This is necessary in order to provide the context for some of the submissions of counsel for Quinn, in particular his contention that the insurance industry is thereby 'meshed in' to the supervisory jurisdiction of the Law Society as a conduit of information to alert the Law Society to the possibility of fraud. The Law Society is the regulatory body for solicitors in England and Wales. A person is not qualified to act as a solicitor unless he has in force a practising certificate issued by the Law Society (Solicitors Act 1974 s.1(c)). The Law Society is responsible for the content of their education and training through the regulations it is entitled to promulgate (s.2). It makes rules as to professional practice, conduct and discipline (s.31), accounts and trust accounts (s.32), inspection of practice bank accounts (s.33A) and the production of Accountants' Reports (s.34). In any of the circumstances specified in Part I of Schedule 1 it may intervene in a solicitor's practice (s.35), it may make rules regarding the compensation of, amongst others, a client for loss occasioned by the conduct of a solicitor (s.36) and may require solicitors to fund a compensation fund (s.36A). The Law Society annually makes rules requiring solicitors to carry insurance sufficient to provide them with an indemnity in respect of any description of civil liability (s.37). The Indemnity Insurance Rules (The Solicitors' Indemnity Insurance Rules 2007 being those applicable to this case) require each firm to have professional indemnity insurance with one or more qualifying insurers or to be admitted to the Assigned Risks Pool ("ARP"). In relation to the former the rules prescribe certain minimum terms to be found in Appendix 1 to both the rules and to Schedule 3 to the Qualifying Insurers Agreement which is entered into between the Law Society and the individual insurer. In relation to the latter the conditions of ARP insurance were prescribed by the rules and Schedules 1 and 2 to the Qualifying Insurers Agreement 2007. The benefit to an insurer from being a qualifying insurer may be tempered by the fact that he thereby becomes an insurer of the ARP. A qualifying insurer has obligations to the Law Society. The qualifying insurer must comply with the terms of the Qualifying Insurers Agreement both in respect of individual policies on the minimum terms and also in the ARP. Thus by clause 6 if a qualifying insurer in dealing with a firm of solicitors suspects or becomes aware of dishonesty or fraud on the part of the firm and reserves its position in relation to a claim made by that firm it is bound to notify the Law Society. By clause 7 it is bound to act at all times with the utmost good faith both with the solicitors' profession generally and the firm which it insures in particular. Clause 8 provides for a liaison committee comprising qualifying insurers, the Law Society and the ARP Manager. Clause 10 requires the insurer to co-operate with the Law Society and those discharging its functions. Clause 16 requires each party to keep confidential all information regarding persons insured by the qualifying insurer. There is also a protocol under which a qualifying insurer must report any solicitor it considers has acted dishonestly. The report must give details of the claim and the evidence thought to justify the conclusion. In the case of an ARP policy Condition 7.2 of Schedule 2 and in the case of individual indemnity insurance Condition 7.8 of Schedule 3 require the insured to provide to the insurer (be it the ARP Manager or a Qualifying Insurer) all information and documents it may require and to give full co-operation and assistance in the investigation, defence, settlement, avoidance or reduction of any actual or possible claim or any related proceeding. Both are a type of insurance known as a "claims made" policy, that is to say that the risk insured is that for which a claim is made in the period of the insurance whenever the damage or its cause arose, as explained by Rix J in J.Rothschild Assurance plc v Collyear [1999] 1Ll.L.R 6 and Rix LJ in HLB Kidsons and others v Lloyds Underwriters Subscribing to Policy 621/PK1D00101 and others [2009] Lloyd's Reports I.R 6. Thus both at the inception of the policy and in the period of its operation the firm must notify the insurer of relevant circumstances, the extent of which may vary according to the terms of the policy. There is no exception to the obligation of disclosure in the case of information subject to a privilege enjoyed by the firm, as opposed to its client (see March Cabaret Club & Casino Ltd v The London Assurance [1975] 2 Ll.L.R 169, 177). The indemnity insurance of SBS with Quinn satisfied the minimum terms prescribed by the Rules. It was a condition of the policy that all incidents which might give rise to a liability or claim under the Policy should be notified to Quinn immediately to enable a proper investigation to be carried out. There was excluded from the indemnity thereby provided any claims arising from dishonesty or a fraudulent act or omission committed or condoned by a partner. I have already quoted in paragraph 2 above the provisions dealing with notice and claims procedure. We were also referred to the Solicitors Accounts Rules 1998. Rules 6 and 7 place the responsibility for ensuring their observation on the principals of a firm and require them promptly upon discovery to remedy any breach. Rule 35 requires a solicitor for any accounting period in which he held or received clients' money to obtain an accountant's report. Rule 42 provides for the accountant to carry out certain specified checks and tests, but rule 45 recognises that the solicitor may refuse to produce a document requested by an accountant on the grounds of client privilege. Finally I should refer to the right of intervention conferred by s.35 Solicitors Act 1974. The right is exercisable in the circumstances specified in Part I of the Schedule to that Act. When exercised the powers for which Part II of that schedule provides arise and are exercisable by the Law Society or its agents. As I have already noted the power was exercised in relation to Mr Onobrakpeya on the ground of suspected dishonesty but in the case of Mr Ikoku for failure to comply with the Accounts rules. Paragraph 9 of Part II deals with the documents of the solicitor and obliges him to deliver to the Law Society or its nominee "all documents in the possession or under the control of the solicitor or his firm in connection with his practice". Rule 12 provides that that power may be exercised notwithstanding any lien or other right to their possession. It is not disputed that the solicitor is obliged to deliver to the Law Society or its nominee any document notwithstanding any obligation of confidence owed to or privilege of his client. The case for Quinn Quinn submits that the Law Society has no right to withhold from Quinn documents in its possession pursuant to the powers contained in Schedule 1 Part II on the grounds of any obligation of confidence owed to its client by SBS or privilege of a client of SBS in relation to that document. It relies on the facts that: (1) As between Quinn and SBS the latter is obliged to produce to Quinn all documents relevant to an actual or potential claim under Clause 6 of the policy conditions quoted in paragraph 2 above or on renewal as part of its normal good faith obligations. (2) Quinn is obliged to communicate to the Law Society circumstances suggestive of fraud under clauses 6 and 7 of the Qualifying Insurers Regulations and Condition 7.8 of Schedule 3. (3) In those circumstances, Quinn submits, Qualifying Insurers should be allowed to inspect documents in the possession of the Law Society or its intervention agent without infringement of any obligation of confidence owed by SBS to its client or privilege of that client. Reliance is placed on the speech of Lord Hoffmann in R (Morgan Grenfell Ltd) v Special Commissioners of Income Tax [2003] 1 AC 563, 612 [32] and [33] and B v Auckland District Law Society [2003] 2 AC 736, 762 [69]. Judgment of Peter Smith J The judge noted that the argument for Quinn was put on two bases. The first was, as he put it, that the insurance obligation is part and parcel of the statutory regulatory regime so that the primary insurer as part of that regime is entitled to access to documents in the same way as the Law Society when it intervenes [22]. The second basis was the terms of clause 6.2 a) 4) of the policy conditions quoted in paragraph 2 [24]. The judge rejected the first basis on the grounds that had that been the intention the statutory regime would have said so. In addition, as he said in [41]: "...whilst there is a public interest in maintaining an insurance policy the purpose of the regulatory procedure is to enable the Law Society to regulate solicitors. There are many potential reasons for intervention or investigation which to do not affect insurance. There is not in my view a sufficient linkage between the clearly regulatory role of the Law Society to that of insurers to confer on the insurers an unfettered right to access to the solicitors documents. The Law Society is entitled to that access in its role as being a supervisory body of solicitors and to ensure compliance with the obligations as set out in the Solicitors Act 1974 and any subordinate rules arising thereunder. Not all concerns that arise under that will be matched with corresponding interest for the insurers. The whole purpose of the present application is not to exercise any kind of supervisory role in the conduct of the firm; it is merely an attempt to gather evidence for use to enable the Claimant to refuse an indemnity. Its purpose therefore is completely at odds with the regulatory role and in particular the insurers' alleged role in it. The purpose of the application is to obtain documents in the expectation that material will be found so as to refuse an indemnity to Mr Ikoku. The public at large will therefore be worse off if the exercise is carried out as the Claimant believes it will be as there will be no indemnity." The judge also rejected the second basis to the effect that as under clause 6.2 a)4) Quinn would have been entitled to the documents from SBS there is no reason why now, as they are in the possession of the Law Society, that entitlement should cease. The judge concluded [60]: "In my view when looking at the clause in its entirety clause 6.2 a) 4) is not a freestanding obligation to provide information [and] assistance whenever the insurer requires it. It is clear that when one looks at the clause as a whole the provision is dealing with an occurrence which might give rise to the likelihood of a claim. In that eventuality the obligations under 6.2(a)-(c) arise. Here there is no claim; the documents sought are where there has not yet been any claim. I am reinforced in that in my view by reference to the Court of Appeal in Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd (No 3) [2002] ECWA Civ 248. It is of course necessary to be cautious in having regard to a decision on the construction of a different document. What the Court of Appeal made clear however (see paragraphs 24-26 of the judgment of Mance LJ (as he then was)) is that the insured is only required to provide information to assist in a claim that is already made. An insured is not required to provide information solely for investigating whether or not a breach of the insured obligations can be established." Quinn now contends that the judge was wrong on both points. In addition it submits that the judge failed to deal with an argument advanced in its written argument to the case of a "claims made" policy. It is submitted that in the case of such a policy it is necessary for the insurer to have access to documents in the possession of the firm but not to make them available to others. It is asserted that the insurer comes within "the circle of confidence", as indicated by Lord Hoffmann in R (Morgan Grenfell Ltd) v Special Commissioners of Income Tax [2003] 1 AC 563, 612 [32] and [33], so that Quinn would be entitled to see the documents for which it asks but not be entitled to make any further disclosure of them. The Law Society seeks to uphold the decision of the judge for the reasons he gave. It does not accept that the judge did not deal with the "claims made" and "circle of confidence" point. If and insofar as he may not have done then they seek to rely on the passages in their skeleton argument in the court below directed to this argument. Consideration and conclusion It is clear that neither the Law Society nor the client of SBS is a party to the Policy. Accordingly Quinn can have no contractual claim to production of the privileged documents it seeks based on clause 6.2 a) 4) or any other provision of the Policy unless the client has consented either expressly or by implication from its claim against SBS. It follows that the refusal of the Law Society in the exercise of its public functions, to disclose the documents sought by Quinn can only be challenged by Quinn on public law grounds, namely that the Law Society is acting unlawfully in refusing to comply with Quinn's request. As I have pointed out, the request for production is a blanket request in respect of all documents but is only material in relation to privileged documents where privilege has not been waived by the client of SBS because no claim against SBS and by SBS under the Policy has been made. The Law Society claims to be not only entitled to withhold production of them but to be bound to withhold them to preserve client confidentiality in accordance with its primary concern to protect the interests of the former clients of SBS and in accordance with the Code of Conduct. It is not suggested either that some term is to be implied into the retainer between the client and SBS to the effect that confidential documents of the client may be disclosed to the insurer of SBS in the case of either a "claims made" policy or an intervention by the Law Society unless, in either case, the client has waived his right of confidence or privilege. The case for Quinn was summarised by counsel for Quinn in the closing moments of his reply to the effect that the entitlement, indeed obligation, of the Law Society to disclose confidential documents of a client formerly in the possession of the solicitor and delivered up to the Law Society under the power contained in paragraph 9 of Schedule 1 Part II of the Solicitors Act 1074 is a necessary implication in the regulatory scheme as a whole. I am unable to accept that submission for a number of reasons. First, I do not accept that an insured solicitor under any form of "claims made" policy is either entitled or bound to disclose to his insurer, either on inception, renewal or notification, confidential and privileged documents or information of the client without the client's consent. The documents and information are held by the solicitor subject to the right and privilege of the client requiring them to be kept confidential. The privilege of the client has been described as "a fundamental human right long established in the common law" by Lord Hoffmann in R (Morgan Grenfell Ltd) v Special Commissioners of Income Tax [2003] 1 AC 563 [7]. Any claim to its relaxation should be approached with the greatest circumspection, see R v Derbyshire Justices [1996] AC 487, 512. If the client will not waive his privilege to enable a proper notification to be made by the solicitor either before inception or during the currency of the policy then the solicitor will no doubt so inform the qualifying insurer. The solicitor is not entitled to ignore the client's privilege. Second, no doubt the solicitor/insured owes duties of good faith to the insurer. He cannot justify any concealment of a material matter on the ground that he, personally, is privileged from disclosing it (see March Cabaret Club & Casino Ltd v The London Assurance [1975] 2 Ll.L.R 169, 177) nor, perhaps, on the ground that the information he failed to disclose was confidential (see Blackburn Low & Co. v Haslam (1888) 21 QBD 144, 153/4). Nevertheless the privilege is that of his client and cannot be broken or waived without the client's consent. It may be that, if the client will not waive his privilege to enable proper disclosure to be made, the consequence of the resulting conflict of interest will be that the insurance is vitiated or the notification inadequate but that is the problem of the solicitor not the client, cf Hilton v Barker Booth & Eastwood [2005] 1 WLR 567. The solicitor's duty of disclosure cannot override the entitlement of the client. Third, even if the various provisions of the Policy or the regulatory scheme on which Quinn relies, either individually or collectively, entitled or required the solicitor/insured to disclose clients' privileged material to Quinn/the insurer there is no corresponding obligation on Quinn/the insurer to disclose to the solicitor/insured privileged material or information of others possessed by Quinn/the insurer. On an intervention by the Law Society the solicitor/insured is bound to give up possession of all documents under paragraph 9 Schedule 1 Part II Solicitors Act 1974, including those which are subject to clients' privilege, but the Law Society is under no corresponding obligation of disclosure of other privileged matter to SBS. In those circumstances I can see no justification for any requirement for the Law Society to provide information to Quinn/the insurer. There is no reciprocity in this respect between the solicitor/insured and Quinn/the insurer on the one hand or between the Law Society and Quinn/the insurer on the other. Fourth, as the regulator of the Solicitors' profession in accordance with the provisions of the Solicitors Act 1974 and its subordinate legislation the Law Society has public functions to perform both for the protection of the public and the clients of the firm or solicitor in respect of whom the intervention was made. If and insofar as the qualifying insurer is "meshed in" to the regulatory system it is as the provider of indemnity insurance to solicitors and of information to the Law Society. It is not 'meshed in' to the system as the recipient of any services or information, let alone privileged information of the clients of the firm the intervention was designed to protect. Fifth, the objective of Quinn in seeking the information and documents to which I have referred is not the advancement of any public purpose or regulatory responsibility but the private purpose of seeking evidence to justify a refusal of an indemnity to Mr Ikoku in respect of clients' claims made against him. So, even if Quinn is 'meshed in' to the regulatory system to the extent for which Quinn contends, its request for the documents to which this application relates is not made for the purpose of the advancement of any such public or regulatory purpose, compare Gan Insurance v Tai Ping Insurance [2002] Ll.L.R 612, 620[24]. Indeed, as Peter Smith J recognised in paragraph 41 of his judgment, quoted in paragraph 17 above, Quinn's purpose is completely at odds with the regulatory role and the insurers' alleged part in it. Sixth, accepting, as I must, that in some circumstances there may exist a 'circle of confidence', as described by counsel for Quinn and recognised by Lord Hoffmann in R (Morgan Grenfell Ltd) v Special Commissioners of Income Tax [2003] 1 AC 563, and assuming it to exist in this case, at least to the extent of the various emanations of the Law Society and the Intervention Agent, I can see no reason why it should include the qualifying insurer. As I have already pointed out there is no reciprocity between the functions of the qualifying insurer and either its insured or the Law Society. Further, it is not only the qualifying insurer who is bound to inform the Law Society of misconduct of a solicitor. Under Rule 20.06 of the Solicitors' Code of Conduct 2007 each solicitor is obliged, subject to his client's consent, to report serious misconduct of any other solicitor of which he becomes aware. To that extent each solicitor is 'meshed in' to the regulatory system but it would be absurd if that admitted every solicitor into the 'circle of confidence' so as to entitle him to information subject to the privilege of the client of another for use for his own private purpose. If that is the case with a solicitor I can see no reason why a qualifying insurer should be treated any differently. For all these reasons I would reject the submission that there is to be implied into the scheme for the regulation of solicitors constituted by the Solicitors Act 1974, subordinate legislation and agreements made thereunder (particularly the Qualifying Insurers Agreement and solicitors' indemnity insurance based on the minimum terms) any provision or term entitling or obliging the Law Society to produce to a qualifying insurer documents emanating from a firm of solicitors into which it has intervened which are subject to the privilege of a client of the firm. If the client consents or his privilege is impliedly waived by a claim against the solicitor then there is no reason why the Law Society may not produce such documents to a qualifying insurer. It has sensibly done so in this case. In those circumstances it is unnecessary to decide, and I express no view, whether the Law Society is not only entitled but obliged to produce them. Accordingly, in my view, this appeal should be dismissed. Counsel for Quinn criticised the judgment of Peter Smith J on other grounds which do not now appear to be material. For the sake of completeness I should add that if the true interpretation of clause 6.2a)4) was in point, I would agree with the views expressed by Peter Smith J in paragraphs 48 and 60 of his judgment. It was suggested that he had not dealt with the argument based on the nature of a 'claims made' policy of insurance. It is clear from paragraphs 31 and 32 of his judgment that he was well aware of the nature of the Policy and clearly he had the point in mind in paragraph 60 which I have quoted in paragraph 18 above. Quinn might not like the way the argument was disposed of, but I cannot accept that it was not dealt with. It was also suggested that he was not entitled [35] to stigmatise Quinn's application as "simply a fishing expedition". Whilst it may be a matter for regret that such a peaceful and pleasurable pastime should have attracted such pejorative overtones, the judge went on to explain what he meant, namely "to go through all of the firm's documents in the hope that they can find material which implicates Mr Ikoku". That appears to me to be an accurate description of Quinn's purpose in making this application. I would dismiss this appeal. Lord Justice Rimer: I agree. Lord Justice Jackson: I also agree.

Conclusions OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 11 March 2004(1) Case C-150/03 P Chantal Hectors v European Parliament (Appeal – Officials – Temporary staff – European Parliament – Parliamentary groups – Selection procedure – Personal interview for which the vacancy notice does not provide – Ad hoc committee – List of recommended candidates – Recruitment of the last on the list – Complaint of the applicant placed first on the list – Rejected – Failure to state the grounds) 1. Ms Hectors, an applicant for a post as Dutch-language member of temporary staff for the European People’s Party and European Democrats Group within the European Parliament (hereinafter ‘the EPP-ED’) is appealing against the judgment of 23 January (2) of the Fifth Chamber of the Court of First Instance. 2. This legal challenge gives the Court of Justice the opportunity to define the scope of the discretionary powers conferred on administrative authorities in the European Union with competence to recruit temporary staff. I – Legal background A – The Staff Regulations of Officials of the European Communities 3. The second paragraph of Article 25 of the Staff Regulations of Officials of the European Communities (3) (‘the Staff Regulations’) provides that any decision relating to an individual which is taken under the Staff Regulations is to be communicated at once in writing to the official concerned and, if the decision adversely affects the official, it must state the grounds on which it is based. B – Conditions of Employment of Other Servants 4. Under Article 2(c) of the Conditions of Employment of Other Servants of the European Communities (4) (hereinafter ‘the Conditions of Employment’), staff, other than officials of the Communities, engaged by a political group in the European Parliament are classified as temporary staff. For the rules governing their rights and obligations, Article 11 refers to Articles 11 to 26 of the Staff Regulations. C – The European Parliament Rules of 15 March 1989 5. The Internal Rules of the European Parliament Bureau on the recruitment of officials and other servants (5) (hereinafter ‘the Internal Rules’) provide, in Article 8, that temporary staff for the political groups are to be recruited on the basis of proposals from an ad hoc committee, appointed by the authority empowered to conclude contracts of employment (hereinafter ‘the contracting authority’), one of whose members is appointed by the Staff Committee. 6. Article 9 provides that vacancy notices are to be advertised and outlines the procedure, stating that the selection board, after examining the candidates’ files and taking account of the criteria for the post to be filled, is to submit to the contracting authority a list of candidates who fulfil the prescribed conditions. D – The procedural rules for recruiting EPP-ED staff 7. The EPP-ED Group of the European Parliament has drawn up rules for recruiting staff: under the fifth rule, the procedure is conducted before a selection board, which prepares the written and oral tests, deciding the minimum pass mark, the number of candidates on the reserve list and also the duration of that list. 8. Under the sixth rule, the board submits to the office of the Chairman of the Group a list of the candidates who have passed the tests, stating the marks obtained by each. When only one post is offered, the selection is made between the first three names on the list. II – Background to the appeal A – Facts 9. The contested judgment (paragraphs 5 to 21) sets out the following facts which are relevant to this appeal: – The EPP-ED Group published a vacancy notice for a post of Dutch-language administrator, as a member of the temporary staff, undertaking planning and research in relation to the activities of the group. – The notice laid down the following requirements: (1) university degree or equivalent professional experience; (2) an in-depth knowledge of the institutional structure of the European Union and of its activities; (3) the ability to carry out, following general guidelines, planning, analysis and compilation tasks; (4) a basic knowledge of the parliamentary group’s programmatical aims and activities, and of Community policies, ability and experience in agricultural policies being of particular value. (5) fluent Dutch and a good level of German, French or English; a knowledge of other Community languages would be taken into consideration. – Ms Hectors submitted her candidature on 21 June 2000, and sat the written and oral tests which were held on 9 and 19 October 2000 respectively. – As a result of those tests, the ad hoc committee recommended Ms Hectors (83.50 marks), Ms L. (73.50 marks) and Mr B. (65.25 marks) for the post. – The selected candidates were called to a personal interview with four members of the Netherlands delegation of the parliamentary group; the meetings were held on 7 November. – On 16 January 2001, Ms Hectors, who had been told, on 20 November, that she was on the list of successful candidates but knew nothing of the subsequent course of the procedure, asked for the relevant information. – Her request was dealt with in a letter dated 31 January, in which the Chairman of the group informed her that Mr B. had been selected, adding: ‘In the oral and written tests held on 9 and 19 October, you obtained 83.5 marks (out of 100). You were therefore first on the list. As is customary, the selection board submitted the names of the three candidates with the highest marks to the office of the Chairman of the [parliamentary] group, which took the decision I have already indicated. I refer, for your information, to the following provision: Under Article 9 [of the Internal Rules], the selection is made by the authority of the European People’s Party and European Democrats Group empowered to conclude the contract.’ – On 11 April Ms Hectors lodged a complaint against the appointment of Mr B. and the rejection of her candidature. On 28 May 2001 her complaint was rejected by the Chairman of the EPP-ED Group, who stated: ‘... Article 30 of the Staff Regulations ... (6) provides that, for each competition, the contracting authority sets up a board, which draws up a list of successful candidates, from which the authority selects the persons to be appointed to the vacant posts. Consequently, the order of the candidates is not binding. In the circumstances, your complaint must be rejected.’ B – The pleas and arguments at first instance. 10. On 6 August 2001 Ms Hectors brought an action before the Court of First Instance in which, in addition to asking for costs against the European Parliament, she sought revocation of the appointment of Mr B., annulment of the rejection of her own candidature and of the decision of 28 May 2001, and acknowledgment of her right to compensation of one euro in respect of the damage she had suffered. 11. In support of the above claims, she put forward two procedural arguments and three on the substance. The former referred to the failure to state the grounds of the contested measures and to the inappropriate conduct of the selection procedure owing to the organisation of personal meetings with candidates for which the rules on recruitment do not provide. Of the complaints on the merits, two must be considered for the purposes of this appeal: the alleged infringement of Article 12 of the Conditions of Employment owing to disregard of the interests of the service, and the alleged infringement of the principle of equal treatment for men and women. 12. The European Parliament opposed the application, which was dismissed in its entirety in the contested judgment. C – The grounds of the contested judgment 1. The failure to state the grounds (paragraphs 35 to 46) 13. Referring to the freedom of choice enjoyed by the Chairman of a group in the European Parliament in recruiting temporary staff, the Court of First Instance considered that the statement that the legal conditions for the proper conduct of the selection procedure had been met was adequate, that requirement having been satisfied by the replies given to Ms Hectors in the letters of 31 January and 28 May 2001. 2. The infringement of Articles 29 and 30 of the Staff Regulations, of the rules of the vacancy notice and of the principle patere quam ipse legem fecisti (paragraphs 93 to 108) 14. According to the Chamber which gave the judgment, the rules governing the entry of officials are not applicable to the filling of a temporary staff post, which is governed by the Conditions of Employment and, in the present case, by the Internal Rules. The contracting authority has extensive power to organise the tests and, consequently, to hold personal interviews, even if no provision has been made for them. 3. The infringement of Article 12 of the Conditions of Employment (paragraphs 65 to 78) 15. In the judgment it is stated that, in selecting Mr B., the administration did not exceed the bounds of its power of decision, because it was clear from his curriculum vitae that the person selected had the experience required by the vacancy notice, and even more experience than the applicant in the common agricultural policy sector. 4. The infringement of the principle of equal treatment (paragraphs 117 to 128) 16. For the Court of First Instance, the fact that Ms Hectors was six months pregnant when the tests were held, which was known to the members of the Netherlands delegation who interviewed her, did not give grounds for assuming that there was discrimination, so the European Parliament was not required to prove that it had observed the principle of equal treatment. In any event, in selecting Mr B., the authority responsible for deciding on the outcome of the competition neither committed an error of assessment nor infringed the prohibition against making – in connection with employment – unjustified distinctions on grounds of sex.. III – The appeal 17. The appellant puts forward four pleas in law. 18. In the first she criticises the judges hearing the case at first instance for not having corrected the improper organisation of interviews between the candidates and the members of the Netherlands delegation of the parliamentary group. The contracting authority disregarded the rules it had made for itself, infringing the principles of legality, legal certainty and proportionality. 19. The second plea is based on the general obligation to state the grounds on which decisions are based, which the Court of First Instance allegedly infringed by accepting that the contested measures could be supported by a mere reference to the applicable procedural rules. According to Ms Hectors, once the contracting authority decided to depart from the order in which the candidates were placed on the list drawn up by the selection board, it had to give a specific explanation for the decision. Furthermore, the mutual trust between the member of the temporary staff and the members of the national political group which employs him has no connection with the obligation to state the reasons for the decision, since, otherwise, the procedure to ensure that the best candidate is appointed would be unnecessary. If that relationship of trust were the decisive factor in the selection, there would be no need to organise any selection procedure. 20. Another of the grounds of appeal, the third, refers to Article 12 of the Conditions of Employment and to the concept of interests of the service, which the contested judgment infringes because, in the appellant’s opinion, Mr B. was not the most suitable candidate, if the experience of them both is compared. That provision requires that the most highly qualified candidate be recruited, so the expertise of the person selected must not be ‘sufficient’ but ‘the best’. 21. Finally, Ms Hectors complains that the Court of First Instance erred in law in the application of the principle of equal treatment, since the fact that she was pregnant, together with the fact that the appointment was made to the only man on the shortlist, who, moreover, was last on the list, with almost 20 marks fewer than the person who was first, are evidence of the inequality complained of. Since an infringement of Article 12 of the Conditions of Employment and disregard of the interests of the service, and also an error of assessment in opting for Mr B.’s candidature were proved, the contested judgment infringes the aforementioned principle because it did not require the European Parliament to prove the absence of any discriminatory intent in its decision. IV – Examination of the appeal A – The first two pleas 22. Ms Hector’s appeal contains two kinds of complaint. The first two pleas are of a procedural nature, whereas the last two concern the terms of the contested administrative decision. The former should be dealt with first because, if either were upheld, it would be unnecessary to examine the others, which would be considered only in the alternative. 23. The first part of Ms Hector’s appeal is of real interest, because it raises the issue of the extent of the administration’s power of decision in the recruitment of temporary staff. Some knowledge of the characteristic features of these Community employees will help illustrate the essence of the system. 1. A few preliminary observations on temporary staff and their recruitment 24. Article 283 EC (formerly Article 212 of the EEC Treaty (7) ) shows that the staff of the Communities is made up of officials and other servants, subject always to the institutions being able to use other forms of recruitment to meet short-term needs. (8) 25. The category of other servants comprises four kinds: temporary staff, auxiliary staff, local staff and special advisers (Article 1 of the Staff Regulations). (9) Legal writers have pointed out (10) that it is impossible for any administration to fulfil its tasks only with the permanent staff, owing to inevitable increases in work in particular circumstances or the necessary occasional involvement of persons with specific qualifications and experience which a general civil service usually lacks. 26. Other servants have acquired greater importance over the years: they have come to occupy, like officials, fixed posts (11) and to carry out similar tasks, participating at the core of Community activities, so that the line separating them is blurred. (12) However, there is still one boundary which has not changed and which the former still cannot cross: continuity of employment. Whereas the appointment of officials is permanent, (13) other servants do not have job security. 27. The description ‘temporary staff’ covers several types of employee. As well as those occupying a temporary post, there are others appointed to fill a permanent post temporarily; the term also covers those engaged to assist the members of the institutions or groups of them (Article 2 of the Conditions of Employment). This last category adds to the precariousness of the job the trust which characterises the relationship between the member of the temporary staff and his principal. 28. Therefore, the distinction between officials and other servants, particularly temporary staff, lies not so much in the kind of task they perform as in the nature of the link binding them to the administration. (14) For that reason, the provisions of the Staff Regulations (Articles 11 to 26) which lay down the rights and obligations of the former apply in their entirety to the temporary staff, the only adjustments being those made necessary by the temporary nature of the post. 29. The Conditions of Employment do not provide for any kind of procedure for the recruitment of temporary staff, but the finding that, sometimes, the indeterminacy of the duration of the contract verges on permanence led the Commission (15) to make selection for some categories subject to procedures similar to those used for officials, announcing the general conditions of entry and the characteristics of the job offered, and also developing a procedure designed to be a competition based on merits, which involves the participation of an advisory board empowered to make recommendations to the contracting authority. (16) The model has been copied by the European Parliament, even for posts of trust, like the one which has given rise to the present case. 30. There is nothing, therefore, in the Conditions of Employment which imposes the obligation to follow a predetermined procedure for the selection of temporary staff, but, if an institution, in the exercise of its power to organise the way it functions, does adopt one, it must follow it scrupulously, in order to choose the person with ‘the highest standards of ability, efficiency and integrity’ (Article 12(1) of the Conditions of Employment). 31. As regards jobs such as the one at issue, which are characterised by the special bond of trust between the parties, the contracting authority has a wide discretion to select the most suitable candidate, but this power must not merge into arbitrariness. Once a job has been offered and there are several able candidates, the decision is not entirely unrestricted: it is subject to certain conditions, which must be examined for the purposes of the present case. 2. The personal interview in the procedure to fill a position of trust 32. The wide powers enjoyed by the contracting authority do not allow it to depart from the framework laid down, (17) because no one may validly contradict his own acts, as the applicant claims, invoking the Latin aphorism patere legem quam ipse fecisti (you must abide by the law in the terms in which you yourself enacted it). 33. It therefore appears reprehensible to omit a prescribed step or to add a step not provided for in the procedure adopted. As I have had the opportunity to point out in my Opinion in Aalborg Portlandand Others v Commission, (18) defects in the procedure do not have a life of their own in isolation from the substance of the case. A decision must be annulled if, owing to the defects in the procedure leading to its adoption, it is wrong in substance or if, because the procedural defect occurred, it is impossible to form an opinion about the decision which was adopted. For that reason, Article 230 EC (formerly Article 173 of the EC Treaty), when defining the powers of the Court of Justice in actions for annulment, refers to ‘infringement of an essential procedural requirement’. Not every infringement of the selection procedure thus suffices; there has to be a fault which jeopardises the procedure’s aim of ensuring the legality, correctness and appropriateness of the decision, in order to safeguard the right of the interested parties to expect that the person selected will be the most suitable and that all the candidates should have competed on equal terms. 34. Thus, Ms Hector’s claim is weakened: although the holding of meetings – not envisaged in the vacancy notice – with the three short-listed candidates did not have a bearing on the intention to engage the most able candidate to fill the post offered, there is nothing to indicate that, if they had not taken place, she would have been selected. Nor did it harm her in relation to the others, by reducing her chances, because for all of them it was a foreseeable procedure, owing to the nature of the post offered. 35. Furthermore, the test at issue is not only justified and proportionate but is also advisable, since the relationship of trust with the members of the EPP-ED is a significant feature of the post. There is therefore nothing immoderate or irregular in arranging for the Netherlands members of the group to have talks with the three persons short-listed, because the person selected would have to work closely with them in their parliamentary work. 36. The Court of First Instance did not infringe the principles of legality, legal certainty or proportionality by declaring that, by organising personal interviews not announced in the vacancy notice, the contracting authority did not exceed its discretionary power to determine the procedure to be followed. Accordingly, the first ground of the appeal must be rejected. 37. Moreover, the judgments cited by Ms Hectors do not support her claims. The judgment given by the Court of First Instance in Coget and Others v Court of Auditors, cited above, refers specifically to a case very different from her own: the applicants sought to have an exchange of views in a procedure in which a priori it had not been considered appropriate. The judgment recognises that the contracting authority is not required to hold meetings with the candidates, if that step is not included in the rules adopted (paragraphs 136 and 137), but it adds that nothing prohibits it from doing so. Also of no interest in that respect are the judgments of the Court of Justice in Ragusa v Commission and Parliament v Volger, (19) which concern the omission of procedures laid down in the vacancy notice. The former because it turned out that the procedure to which the applicant drew attention had not been omitted (paragraphs 4, 5 and 18) and the latter because the personal interview with the candidates, an essential element for an assessment of merits, had been left out in the case of one candidate but not the rest (paragraphs 8 to 16), so that the ratio decidendi was not so much that omission, in the abstract, as the discrimination suffered. The same view should be taken of the judgments in Pappas v Committee of the Regions (20) and Robinson v Parliament, (21) mentioned by Ms Hector’s defence at the hearing, which also refer to procedural irregularities resulting from omissions: the lack of a second interview with the candidates and the exclusion of a comparative examination of their merits, respectively. 38. Also, the Court of First Instance cannot be criticised for finding justification for the interview in the element of mutual trust, since it did not upset the equality between the parties by introducing into the debate an argument not put forward by the defendant. On the contrary it has confined itself, in accordance with the principle iura novit curia, to considering specifically one of the features which characterise temporary staff, according to Article 2(c) of the Conditions of Employment. 3. The statement of reasons for the decision 39. According to the contested judgment, given the nature of the employment offered, the obligation to state reasons was fulfilled by the statement that the conditions for regularity of the recruitment procedure were satisfied (paragraph 41). 40. That assertion is unobjectionable, provided that it is regarded as the minimum threshold of the obligation of the public authorities to explain their decisions, when they affect the rights and interests of others. Article 25 of the Staff Regulations, applicable to temporary staff by virtue of Article 11 of the Conditions of Employment, requires decisions adversely affecting the addressee to be explained. The interpretation of this provision has acquired a new dimension since, in the Charter of Fundamental Rights of the European Union, (22) the obligation to state reasons forms part of the right of the Community citizens to good administration (Article 41(2), third indent). 41. The decision to reject the candidature of one applicant and to appoint another is an upsetting one and, therefore, undoubtedly has to be properly reasoned. That is the view taken in Community case-law, according to which such acts must be reasoned, at least at the stage at which the complaint lodged by the eliminated candidate is rejected. (23) The scope of that obligation depends on the circumstances of each case; since its purpose is both to enable the Court to review the legality of the contested decision and to provide the person concerned with the information he needs to protect his legal rights, 24 –See Joined Cases 33/79 and 75/79 Kuhner v Commission [1980] ECR 1677, paragraph 15; Case 176/82 Nebe v Commission [1983] ECR 2475, paragraph 21; Case 69/83 Lux v Court of Auditors [1984] ECR 2447, paragraph 36; and Case C-169/88 Prelle v Commission [1989] ECR 4335, paragraph 9. it should not contain solemn declarations, elegant clauses or abstract statements which are not directly connected with the details of the case, because, as I said on another occasion, 25 –Point 19 of my Opinion of 14 June 2001 in Case C-120/99 Italy v Council [2001] ECR I-7997. the statement of reasons is not just a courtesy or a routine formality. It is above all a rationalising factor in the exercise of power, facilitating review thereof, and also operates to prevent arbitrariness and to provide protection. 42. Against that background, the reasons that the contracting authority gave to Ms Hectors, after keeping silent, (26) to justify the decision to recruit Mr B., even though he was last on the ad hoc committee’s list, are insufficient. The general reference to the applicable provisions and the statement that the recommendation was not binding do not give a full account of the reasons for the choice and therefore do not satisfy the requirements which, in view of its purpose, every statement of reasons must meet. 43. As I have already said, each institution has extensive freedom to organise the selection procedures for temporary staff and to choose the most suitable candidate. In the exercise of that freedom to make arrangements, it may appoint a board to examine the abilities and aptitudes of the candidates in the light of the requirements of the post, and to make recommendations. By so doing, the contracting authority loses not a jot of its discretionary power of selection. (27) However, according to Community case-law, if such a body is set up with the task of facilitating the decision, ensuring greater rigour in the appointment, by issuing a report or recommendation, its opinion is one of the factors on which the institution bases its own assessment of the candidates, (28) so that, if it departs from the board’s opinion, it is required to give reasons for its decision. (29) 44. The above principle, which was established in relation to the promotion of officials, has been extended by the Court of First Instance to the recruitment of temporary staff, because in both cases a comparison is made between several candidates, as was pointed out in the judgment in Pierrat v Court of Justice (paragraphs 36 and 38) (30) in a case in which the person selected was not on the shortlist. The aforementioned obligation to state the reasons for the selection also applies where, as has happened on this occasion, there is a preference for one of the short-listed candidates which does not reflect the recommended order. 45. Therefore, there is nothing to compel the contracting authority to accept the suggestion but, if it rejects the advice, it must state its reasons for doing so: first, because it is presumed that the ranking established by the advisory body reflects the relative suitability of each applicant to occupy the post offered, in accordance with Article 12 of the Conditions of Employment, which pursues the aim of recruiting as temporary staff persons of ‘the highest standard of ability, efficiency and integrity’; secondly, because the other candidates, especially those higher on the list than the person selected, are entitled to know the reasons for which a person who, in the view of a selection board, would not be the most suitable, is chosen. 46. That obligation to state reasons becomes even stronger in a case such as this one, in which the institution added a step, for which provision was not initially made, consisting of a personal interview with the members of the parliamentary group with whom the appointee would be called upon to work. Although, given the nature of the post, it is reasonable that such a step should have been incorporated in the procedure, it should be stated, since there is no documentary record of its terms, whether the decision to appoint Mr B., who was the last on the selection board’s list, with a large gap between him and the other two candidates, was the result of the impression he made on the Netherlands members of the group during the personal meetings, and appropriate explanations should be provided in that regard. 47. The European Parliament, far from following that rule of conduct, first kept quiet, and then, when asked for information by Ms Hectors, provided stereotyped and general replies and, finally, during the proceedings, supplied a belated and, accordingly, ineffective, statement of reasons; it therefore failed to fulfil the obligation to give reasons for its decision. By not seeing it that way, the Court of First Instance erred in the manner alleged by Ms Hectors in the second ground of appeal, and the judgment should therefore be annulled. B – The secondary examination of the third and fourth pleas in law 48. If the Court of Justice considers that the contested administrative acts are lawful and, accordingly, that the Court of First Instance did not commit any legal infringement, the other two grounds of appeal, which challenge the content of the decision, should also be rejected. 49. The following observations are based on the hypothesis that, since the decision was adequately reasoned, the applicant and the Community judicature were in a position to ascertain the reasons for the contested acts, and the former to exercise her rights of defence and the latter to exercise its jurisdiction. 1. The ‘best’ candidature 50. By her third plea, which alleges infringement of Article 12 of the Conditions of Employment and of the notion of interests of the service, the appellant seeks to have the Community judicature act as a court with the power to rule on the selection procedure and to enter a territory which, as a rule, it is forbidden to enter, either at first instance or on appeal. 51. The contested judgment states (paragraph 69) that the Court may not impose its assessment of the abilities referred to, thereby overriding that of the contracting authority, and must limit its examination to establishing whether the administrative decision was arrived at within the relevant limits, so as not to be manifestly incorrect, and that, in the present case, it did not exceed its discretion by preferring Mr B. because, as his curriculum vitae shows, he had established that he had adequate experience in the agriculture and forestry sector (paragraphs 72, 74 and 76). 52. By now persisting in following the same line of argument, criticising the Court of First Instance for not behaving as she expected, Ms Hectors is asking the Court of Justice to put itself in the position of the administration and to impose its view on the contracting authority. By repeating that her candidature was better than that of Mr B., she is asking that the merits of the two applicants be compared in an analysis of the facts which the Court hearing the appeal is not permitted to carry out. (31) 53. In a sphere which is different but closely linked to that of this case (the promotion of officials), the Court of Justice has acknowledged that it is for the administration to carry out a comparative examination of the talents of the candidates and to choose the one who, in the light of his abilities and the tasks to be carried out, is the most suitable to fill the vacancy, (32) and that the courts are not empowered to replace that assessment with their own evaluation. (33) 54. In those circumstances, the Court of Justice cannot criticise the Court of First Instance for infringing Article 12 of the Conditions of Employment because it ratified a decision which did not select the most suitable candidate. 2. Access to the Community civil service without discrimination between men and women 55. The rejection of the fourth plea is a consequence of the failure of the previous one. Once it has been established that the Court of First Instance did not infringe Article 12 of the Conditions of Employment or the rule upholding the interests of the service, because Mr B.’s appointment is regarded as lawful, it can hardly be argued that there was discrimination. If the body on which the legal system confers decision-making powers chooses, in the correct exercise of its authority, the person suitable for the post offered, it is clear that it has not taken its decision according to spurious criteria inconsistent with the principle of equality. 56. Therefore, the appellant’s pregnancy, the awareness of her condition and the fact that the candidate ultimately selected, the only male, was last on the list, are not evidence of a sexist attitude which the European Parliament must correct. (34) V – The decision of the Court of Justice in this case 57. If the second ground of appeal is upheld, the contested judgment will have to be set aside. Once it has been annulled, the Court of Justice, under the first paragraph of Article 54 of the EC Statute of the Court, must give a ruling on the substance of the action. 58. The inadequate reasoning of the contested administrative measures, of which Ms Hectors complained in the proceedings, prevents the Community judicature from properly carrying out the review it is required to make since, owing to that deficiency, it does not know for what reasons the contracting authority was prompted to depart from the opinion of the selection board. Thus, it is unable to analyse whether there actually was an infringement of Article 12 of the Conditions of Employment or of the principle of equality of the sexes in respect of access to the Community civil service 59. In short, the only evisageable solution would be to annul Mr B.’s appointment and the decision of 28 May 2001 rejecting the complaint lodged by Ms Hectors. It is not necessary, however, to give a ruling on the letter sent to her by the chairman of the committee on 31 January that year in answer to her request for information, which is a belated and inadequate explanation for the decision. 60. The applicant also seeks compensation of one euro for the material and non-material damage caused, but this claim is unfounded and should be rejected, since the measures it relates to, which, it is suggested in this opinion, should be annulled, do not contain any negative assessment of her qualities that would be likely to cause her any harm. (35) Furthermore, the annulment could be regarded as adequately providing the compensation she seeks. (36) VI – Costs in the proceedings at both instances 61. Since Ms Hectors has partially succeeded,, the parties should each bear their own costs, in accordance with the first paragraph of Article 87(3) of the Rules of Procedure of the Court of First Instance. (37) 62. The costs of these appeal proceedings must be borne by the European Parliament, pursuant to the first paragraph of Article 122 in conjunction with the first paragraph of Article 69(2) of the Rules of Procedure of the Court of Justice. (38) VII – Conclusion 63. In the light of the foregoing considerations, I propose that the Court of Justice: (1) uhold the second ground of appeal put forward by Chantal Hectors against the judgment of the Fifth Chamber of the Court of First Instance of 23 January 2003 in Case T-181/01; (2) set aside that judgment; (3) allow in part the claim brought by Ms Hectors and annul Mr B.’s appointment as Assistant Administrator, as a Dutch-speaking member of the temporary staff, in the EPP-ED Group (vacancy notice No G-453), and the decision of 28 May 2001 of the Chairman of the aforementioned parliamentary group rejecting the applicant’s complaint against that appointment; (4) dismiss the remaining grounds of appeal; (5) order the parties to bear their own costs at first instance and order the European Parliament to pay the costs of this appeal. 1 – Original language: Spanish. 2 – Case T-181/01 Hectors v Parliament [2003] ECR-SC I-A-19 and II-103. 3 – Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition 1968(I), p. 30). That measure, which amended Council Regulation No 31 (EEC), 11 (EAEC) of 18 December 1961 (Journal Officiel 1962 45, p. 1385), has itself been amended on numerous occasions. 4 – Their publication details are the same as those of the Staff Regulations. 5 – Internal Rules on the recruitment of officials and other servants, and on change of grade or service (consolidated text following the amendments which came into force in 1989, 1992, 1994, 1995, 1996, 1997, 1998 and 2001). 6 – He ought to have referred to Articles 8 and 9 of the Internal Rules or to the fifth and sixth rules of the parliamentary group. 7 – Article 212 of the EEC Treaty which (like Article 186 of the EAEC Treaty) was repealed by Article 24(2) of the Treaty of 8 April 1965 establishing a Single Council and a Single Commission of the European Communities, includes, without amendment, the content of the second subparagraph of Article 24(1). This legislative operation was carried out in the Treaty of Amsterdam (Article 6(71)). 8 – These employees, who make up the category known as ‘external staff’, to whom neither the Staff Regulations nor the Conditions of Employment apply, are in turn divided into two groups. The first comprises national experts on secondment, correspondents, visiting scientists and stagiaires, who are governed by the specific rules of each institution. The second group covers employment relationships governed by private law: recruitment under contracts governed by general employment law, contracts through placement agencies and temporary staff engaged under agreements concluded with temporary employment agencies, among others. 9 – The Proposal for a Council Regulation amending the Staff Regulations and the Conditions of Employment (COM (2002) 213 final) adds the category of ‘contract staff’. 10 – Fuentetaja Pastor, J.A., Función pública comunitaria, Marcial Pons, Ediciones Jurídicas y Sociales SA, Madrid-Barcelona 2000, p. 50. 11 – When defining the term ‘official’, Article 1 of the Staff Regulations refers to established posts. Servants, whether temporary or auxiliary, may also be appointed to this kind of post, as is clear from Articles 2(b) and (d) and 3(b) of the Staff Regulations. Penaud, J., in ‘La fonction publique des Communautés Européennes’, Problèmes politiques et sociaux, La Documentation Française, No 617, Paris, 13 October 1989, p. 11, has pointed out that a person is not recruited to the temporary staff on the basis that he is to occupy a temporary post; that may be the case, but he may end up with a permanent job. 12 – Fuentetaja, Pastor, J.A., cited above, p. 44. 13 – The first paragraph of Article 1 of the Staff Regulations states that ‘“official of the Communities” means any person who has been appointed ... to an established post on the staff of one of the institutions of the Communities ...’ That article, read in conjunction with the provisions of the Conditions of Employment limiting the term of the contracts concluded with other servants, shows that the essence of being an official lies in the fact that the post is permanent and is occupied on a permanent basis. 14 – However, the term ‘Community civil service’ should be limited to the tasks of guiding, devising, reviewing, interpreting and implementing the policies of the European Union, carried out by employees covered by the Staff Regulations, either in permanent posts or, depending on the nature of the assignment, in temporary posts, whereas physical, merely auxiliary tasks, could well be governed by a different system, closer to labour law institutions. It appears that the aforementioned Proposal for a Council Regulation amending the Staff Regulations and the Conditions of Employment is in part pursuing that idea, by creating the role of ‘contract staff’ for manual, service or support operations (Article 3(1), first indent). 15 – European Commission (DG IX, Personnel and Administration, Recruitment Service), Guide for Selection Panels and Selection Boards, October 1996, pp. 9 and 10. 16 – In any event, the procedures for selecting officials are not per se applicable to temporary staff, as the Court of First Instance pointed out in its judgment in Case T-95/01 Coget and Others v Court of Auditors [2001] ECR-SC I-A-191 and II-879, paragraph 56, to which it refers in paragraph 94 of the judgment which is the subject of this appeal. 17 – The Court of Justice has so stated in relation to the conditions required for submitting an application (Case C-107/90 P Hochbaum v Commission [1992] ECR I-157, paragraph 9) or for taking up the post (Case C-343/87 Culin v Commission [1990] ECR I-225, paragraph 19), and also in relation to the introduction of a preliminary procedure of consultation of a recruitment committee (Case 282/81 Ragusa v Commission [1983] ECR 1245, paragraph 18). 18 – Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P [2004] ECR I-0000. 19 – Case C-115/92 [1993] ECR I-6549. 20 – Case T-73/01 [2003] ECR II-0000. 21 – Case T-328/01 [2004] ECR II-0000. 22 – OJ 2000 C 364, p. 1. 23 – .Parliament v Volger, paragraphs 22 and 23 24 – See Joined Cases 33/79 and 75/79 Kuhner v Commission [1980] ECR 1677, paragraph 15; Case 176/82 Nebe v Commission [1983] ECR 2475, paragraph 21; Case 69/83 Lux v Court of Auditors [1984] ECR 2447, paragraph 36; and Case C-169/88 Prelle v Commission [1989] ECR 4335, paragraph 9. 25 – Point 19 of my Opinion of 14 June 2001 in Case C-120/99 Italy v Council [2001] ECR I-7997. 26 – In Parliament v Volger, the Court of Justice pointed out that, although the appointing authority is not, in general, required to reply to a complaint, the position is different where the decision at issue is not reasoned (paragraph 23) – silence being a lack of reasons taken to the extreme. 27 – In Case T-217/96 Fabert-Goossens v Commission [1998] ECR-SC I-A-607 and II-1841, the Court of First Instance pointed out that the institutions have a very wide discretion to choose between the candidates included on the lists of suitable applicants, in that they are under no obligation, once the selection procedure has begun, to ensure that it ends with the vacancy being filled or to follow the exact order in which those who have passed the tests are listed (paragraph 28). 28 – See Joined Cases 44/85, 77/85, 294/85 and 295/85 Hochbaum and Rawes v Commission [1987] ECR 3259, paragraph 16. 29 – Case T-25/90 Schönherr v ESC [1992] ECR II-63, paragraph 29. 30 – Case T-60/94 [1995] ECR-SC I-A-23 and II-77. 31 – It is undisputed that the Court of Justice may only correct a legal infringement committed by the Court of First Instance but never establish the facts – without prejudice to its right to review their legal characterisation (see Joined Cases C-280/99 P to C-282/99 P Moccia Irme and Others v Commission [2001] ECR I-4717, paragraph 78; Case C-315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281, paragraph 19; and Aalborg Portland and Others v Commission, cited above, paragraphs 47 to 49). 32 – See point 3 of the Opinion delivered on 15 October 1991 by Advocate General Tesauro in Hochbaum and Rawes v Commission. 33 – .Ragusa v Commission, paragraph 13, and Case C-277/01 P Parliament v Samper [2003] ECR I-3019, paragraph 35. 34 – Since Case 20/71 Sabbatini v Parliament [1972] ECR 345, the Court of Justice has recognised the need to ensure equality between men and women employed by the Community, a principle which implies the application not only of the provisions of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) but also those of the Community directives adopted in this sphere, in accordance with the judgment in Joined Cases 75/82 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509. Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex (OJ 1998 L 14, p. 6) and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) provide, in Articles 4(1) and 10(1) respectively, that, where an applicant adduces evidence of discriminatory treatment, it is for the defendant to prove that there has been no breach of the principle of equal treatment. 35 – See, a sensu contrario, Culin v Commission, paragraphs 27 to 29. 36 – See Hochbaum and Rawes v Commission and Culin v Commission, paragraphs 22 and 26 respectively. Reference may also be made to Case 128/84 Van der Stijl v Commission [1985] ECR 3281, paragraph 26. 37 – Revised version (OJ 2003 C 193, p. 41). 38 – Revised version (OJ 2003 C 193, p. 1).

Opinion of Mr Advocate General Cosmas delivered on 11 July 1996. - Commission of the European Communities v Ireland. - Failure of a Member State to fulfil obligations - Directives 91/67/EEC, 91/492/EEC, 91/493/EEC and 92/48/EEC - Failure to transpose within the prescribed period. - Case C-325/95. European Court reports 1996 Page I-05615 Opinion of the Advocate-General ++++ 1 In this application, brought pursuant to Article 169 of the EC Treaty, the Commission asks the Court to declare that Ireland is in breach of its obligation to transpose a number of directives into its internal legal system, namely: (a) Council Directive 91/67/EEC of 28 January 1991 concerning the animal health conditions governing the placing on the market of aquaculture animals and products, (1) Article 29 of which provides that: `1. The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 1993. 2. (...).' (b) Council Directive 91/492/EEC of 15 July 1991 laying down the health conditions for the production and the placing on the market of live bivalve molluscs, (2) Article 15 of which provides that: `The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 1993. They shall notify the Commission thereof. (...).' (c) Council Directive 91/493/EEC of 22 July 1991 laying down the health conditions for the production and the placing on the market of fishery products, (3) Article 18 of which provides that: `The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 1993. They shall notify the Commission thereof. (...).' and lastly, (d) Council Directive 92/48/EEC of 16 June 1992 laying down the minimum hygiene rules applicable to fishery products caught on board certain vessels in accordance with Article 3(1)(a)(i) of Directive 91/493/EEC, (4) Article 4 of which provides: `The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 1993. They shall inform the Commission thereof. (...).' 2 After the expiry of the above periods prescribed for transposition, on 12 March 1993 the Commission sent a letter of formal notice to the Irish Government in which it drew its attention to the fact that it had not yet been notified of measures transposing those directives into the national legal system nor did it have any other information on the matter; it asked Ireland to submit its observations within a period of two months from receipt of the letter. 3 On 4 May 1994 the Commission issued a reasoned opinion, in which it requested Ireland to take the measures necessary to comply with the Directives within a period of two months from receipt of the opinion. 4 Through its Permanent Representative to the Communities, Ireland had replied to the Commission's letter of formal notice by a letter dated 5 July 1993 to the effect that transposition of the directives into its internal legal system was imminent. 5 On 16 October 1995 the Commission brought the present proceedings by application lodged at the Court Registry. 6 In the abovementioned reply, Ireland does not deny that it has not yet brought into force the necessary measures to transpose the directives into national law. It contends simply that the relevant Ministerial Regulations are in the course of preparation. 7 According to the settled case-law of the Court, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive. (5) 8 In those circumstances, the fact that Ireland has not transposed the directives into its internal legal system within the prescribed period amounts to a breach of its obligations, as pleaded by the Commission. Conclusion 9 Accordingly I suggest that the Court should: (1) declare that, by failing to adopt within the prescribed period the laws, regulations or administrative provisions necessary to transpose into its internal legal system: Council Directive 91/67/EEC of 28 January 1991 concerning the animal health conditions governing the placing on the market of aquaculture animals and products; Council Directive 91/492/EEC of 15 July 1991 laying down the health conditions for the production and the placing on the market of live bivalve molluscs; Council Directive 91/493/EEC of 22 July 1991 laying down the health conditions for the production and the placing on the market of fishery products; Council Directive 92/48/EEC of 16 June 1992 laying down the minimum hygiene rules applicable to fishery products caught on board certain vessels in accordance with Article 3(1)(a)(i) of Directive 91/493/EEC, Ireland has failed to fulfil its obligations under Articles 29, 15, 18 and 4 respectively of the said Directives; (2) order Ireland to pay the costs. (1) - OJ 1991 L 46, p. 1. (2) - OJ 1991 L 268, p. 1. (3) - OJ 1991 L 268, p. 15. (4) - OJ 1992 L 187, p. 41. (5) - See, for instance, the judgment of 2 May 1996 in Case C-253/95 Commission v Germany [1996] ECR I-0000, paragraph 12.

civil appellate jurisdiction civil appeal number 1156 of 1967. appeal from the judgment and decree dated january 6 1967 of the punjab and haryana high companyrt in civil regular first appeal number 152 of 1958. brij bans kishore mahabir prasad jain and j.p. gupta for the appellants. c. mahajan and m.s. gupta for respondent number. 1 and 2. the judgment of the companyrt was delivered by dua j. this appeal on certificate has been preferred by one set of pre-emptors plaintiffs in suit number 556 of 1958 against the judgment and decree of the high companyrt of punjab and haryana allowing the rival plaintiffs-pre- emptors appeal by reducing the pre-emption money and passing a decree of pre-emption on payment of rs. 105800/- instead of rs. 135000/- as directed by the trial companyrt. on behalf of the rival pre-emptors plaintiffs in suit number 558 of 1958 who are arrayed as respondents 1 to 3 in this companyrt a preliminary objection was taken to the competency of the present appeal. the appellants right to appeal was challenged on the ground that the amendment of the punjab pre-emption act hereinafter called the act by the punjab act x of 1960 had deprived them of their right of pre-emption with retrospective effect. the appellants had based their right of pre-emption in their suit on the ground of their being proprietors of the village. they were deprived of this right by the amending act of 1960 and s. 31 of the act as amended made the amendment retrospective in its operation by prohibiting the companyrts from passing decrees inconsistent with the amended act. the right of respondents 1 to 3 who had sued as sons of the vendors remained undisturbed by the amendment. it was on this basis that the preliminary objection was pressed before us. the facts relevant for the present appeal may number briefly be stated. the land in suit was sold by a registered sale deed on june 18 1957 by kashi harchand and bhagoo respondents 4 to 6 in this companyrt to respondents 7 to 18 for an ostensible companysideration of rs. 135000/-. the appellants and respondents 1 to 3 instituted two separate suits for pre-emption in respect of this sale. in both the suits the sale price as inserted in the sale deed was questioned. the two suits were companysolidated and the plaintiffs in each suit were joined as defendants in the other suit as companytemplated by s. 28 of the act. it appears that on april 28 1958 a statement was made on behalf of the vendees admitting the right of the pre-emptors in both the suits and companyceding that a decree be passed in favour of respondents 1 to 3 in the first instance and on their failure to pay the amount the appellants be held entitled to a decree on payment of rs. 135000/-. apparently all other objections raised by the vendees to the right of the pre-emptors were dropped. companynsel for the appellants also made a statement expressing his willingness to pay a sum of rs. 135000/-. companynsel for the respondents 1 to 3 however did number accept the amount of companysideration as entered in the sale deed and wanted the issue in regard to the pre-emption money to be decided on the merits. the trial companyrt by its judgment and decree dated june 30 1958 granted to the plaintiffs in both the suits a decree in the following terms it is ordered that a decree is granted to the plaintiffs for possession of land in suit by pre-emption on payment of rs. 135000/- on the companydition that the plaintiffs deposit this amount in the companyrt for payment to the vendees-defendants within one month on or before 30th july 1958 otherwise this suit shall stand dismissed. in case of default by the plaintiffs godhu etc. moola and other rival pre-emptors who are plaintiffs in suit number 556 of 1958 shall be entitled to deposit the above amount as pre-emption money on or before 30th october 1958 and get the possession of the land in suit. this decree was apparently framed in the light of the provisions of s. 28 of the act and order 20 r. 14 c.p.c. section 28 which provides for companycurrent hearing of two or more suits for pre-empting the same sale lays down that each decree shall state the order in which each claimant is entitled to exercise his right of pre-emption. order 20 r. 14 1 a lays down that the decree in a pre-emption suit shall when purchase money has number been paid in the companyrt specify a day on or before which the same shall be paid and order 20 r. 14 2 b provides inter alia that in so far as the claims decreed are different in degree the claim of the inferior pre-emptor shall number take effect unless and until the superior pre-emptor has failed to companyply with the provisions of sub-rule 1. respondents 1 to 3 feeling dissatisfied with the decision on the amount of deposit to be made preferred an appeal to the punjab high companyrt. on january 6 1967 the high companyrt allowed the appeal and reduced the amount of deposit to rs. 105800/-. while framing the decree the high court allowed the plaintiffs pre-emptors a period of three months from january 6 1967 for depositing in companyrt the amount of rs. 105800/- failing which their suit was directed to stand dismissed. numberhing was stated in the decree as regards the claim of the appellants. attention of the high companyrt apparently does number seem to have been drawn to the provisions either of s. 28 of the act or of order 20 r. 14 civil p.c. or of para 3 of chapter 1-m c at page 59 of volume 1 of the punjab high companyrt rules and orders. para 3 aforesaid emphasises the importance of specifying a definite date for the deposit of money in companyrt. it may at this stage appropriately be observed that the omission to state in the decree the order in which the two rival claimants were entitled to exercise their right of pre-emption might have been due either to the fact that the appellants who were impleaded as respondents in the high court in view of s. 31 as interpreted in ram swarup v. munshi and others 1 did number press their claim and did number ask for the inclusion of a direction regarding their right in the high companyrt decree or to the fact that they may have felt that having expressed .their willingness in the trial court to deposit rs. 135000/- it was numberlonger open to them to question this valuation. it is also number unlikely that in view of the decision in ram swarups case 1 the high companyrt thought that the only right of pre-emption subsisting on january 6 1967 was that of respondents 1 to 3 and that there was therefore numberoccasion for making any consequential order in faxour of the appellants under order 41 r. 33 civil p.c. the judgment of the high companyrt does number companytain any discussion on the point as to why no reference was made to the appellants claims. it would certainly have been more helpful if the high companyrt had stated something in its judgment on this aspect. in the circumstances of this case however we need say numberhing more on this point. it is against the decree of the high companyrt reducing the amount of deposit to be made by respondents 1 to 3 that the appellants- 1 1963 3 s.c.r. 858. ? pre-emptors have companye to this companyrt on appeal and their right to appeal is challenged on the ground that the existing law of preemption has retrospectively deprived them of their right to preempt by prohibiting the companyrts from passing a decree for pre-emption inconsistent with the act as amended. the challenge seems to be well founded. this companyrt had in ram swarups case 1 occasion to construe the effect of s. 31 of the act. according to that decision s. 31 is plain and companyprehensive enumbergh to require an appellate companyrt to give effect to the substantive provisions of the amending act whether the appeal before it is one against a decree granting pre-emption or one refusing that relief. following the ratio of this decision it must be held that it is number open to this companyrt to pass a decree of pre-emption in favour of the appellants who were deprived in 1960 of their right to secure such a decree in the present suit. indeed it was number open even to the high companyrt to pass a decree of pre-emption in favour of the appellants on january 6 1967 and the decree of that companyrt is unexceptionable in this respect. the argument that the appellants. had already cured a decree in their favour by the trial companyrt which decree has become final and that they have fully companyplied with its terms and further that in the present appeal they are merely seeking modification of the decree of the high companyrt in favour of respondents 1 to 3 by getting the amount of pre-emption money enhanced to rs. 135000/- without claiming any right of pre-emption in their own favour is unsustainable. this argument ignumberes that the scheme of s. 28 of the act read with order 20 r. 14 civil p.c. does number postulate decrees of pre-emption in favour of rival pre-emptors on payment of different amounts of purchase money in respect of the same sale. such a course may lead to companyflicting decisions on the question of value of the property sought to be pre-empted for the purposes of pre-emption suit. besides the appellants right to pre-empt the sale under the unamended law was admittedly inferior to that of respondents 1 to 3 and the appellants could only be held entitled to exercise their right after the failure of the said respondents to companyply with the terms of the decree in their favour. the right of respondents 1 to 3 was determined by the high companyrt and it was claimed on their behalf at the bar of this companyrt that they had already deposited the preemption money as required by the high companyrt decree. indeed this assertion was number disputed on behalf of the appellants. we are accordingly unable to hold that the appellants have successfully executed the decree of pre- emption in their favour. the appellants further developed their argument by submitting that the decree passed by the trial companyrt in their favour was 1 1968 3 sc.r. 858. never appealed against and that the same has become final and binding on all parties. the only appeal preferred by respondents 1 to 3 according to this submission was from the decree in their own suit with the result that the decree in favour of the appellants passed by the trial companyrt in their suit has by number become companyclusive and unassailable. we cannumber accept this submission. there is numberhing on the record to show that the appeal presented in the high companyrt by respondents 1 to 3 was directed against the decree passed in their suit. apparently the appeal was filed against the decree passed in the companysolidated suits dealing with the rights of both the rival pre-emptors and all the parties interested in the right of pre-emption were impleaded in the appeal. besides this companytention seems to us to be only anumberher way of putting the same argument namely that there can be two or more different determinations of the amount of pre-emption money in the two companysolidated suits for pre- empting the sale in question. it also postulates a claim by an inferior pre-emptor to pre-empt the sale by making the deposit of the pre-emption money before the superior pre- emptor has failed to companyply with the terms of the decree in his favour. this argument as the foregoing discussion shows is without merit. in the present case a further question arises as to whether or number it was open to the appellants to ask the high companyrt number to vary the determination of pre-emption money in the appeal preferred by respondents 1 to 3 without formally preferring a separate appeal from the other decree companysidered to have been passed in the other suit because passing of such an inconsistent decree on appeal on the question of valuation would number be permissible in law. numberargument on these lines was addressed in the high companyrt. the effect of this omission has number been canvassed in this companyrt either. we would therefore express numberopinion on this aspect. the final decree relating to the rival claims of pre-emption in respect of the sale in question however seems to be that of the high court which may well be companysidered to be binding on all the parties to it. and then if the appellants claim that the decree passed in their favour by the trial companyrt in their suit has already become final and their right is unaffected by the decree of the high companyrt then they cannumber be considered to be aggrieved by the impugned decree and therefore they cannumber claim any locus standi to appeal against it. from whichever point of view one looks at the position the appellants cannumber claim a right of appeal from the decree of the high companyrt determining the pre-emption money to be rs. 1 05800 the right to appeal against that decree can only be exercised by a person whose claim of pre-emption in respect of the sale in question can be companysidered to have been adversely affected by it.

Lord Justice Pill: This is an appeal by Mr A ("the appellant") against a judgment of Newman J given on 27 March 2003 whereby he quashed an order of Goldring J dated 28 February 2001 made in the Bradford Crown Court ("the Crown Court"). Newman J ordered that the matter be remitted to the Crown Court and that the quashing order should not take effect until a judge of that court was seized of the matter at a hearing to deal with the remission. Newman J further ordered that the judge at the Crown Court "shall then make the proper order under Section 3 and 5 of the Criminal Procedure (Insanity) Act 1964 as amended by the Criminal Procedures (Insanity and Unfitness to Plead) Act 1991." Newman J refused permission to appeal and an application for certification of a point of law of general public importance. Newman J made the order on the application of South West Yorkshire Mental Health NHS Trust ("the respondents"). The appellant appeared as an interested party to oppose the application. The Secretary of State for the Home Department ("the Secretary of State"), now jointly represented with the Crown Court, supported the application of the respondents to the court and both parties now submit that this court has no jurisdiction to hear the appeal and, alternatively, that the appeal should be dismissed. On 27 February 2001, A appeared before Goldring J at the Crown Court charged with the murder of his sister-in-law. The medical evidence was that A was suffering from paranoid psychosis characterised by persecutory delusions and hallucinations and that such illness was a mental disorder within the meaning of the Mental Health Act 1983 ("the 1983 Act"). The procedure under the Criminal Procedure (Insanity) Act 1964 ("the 1964 Act"), as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 ("the 1991 Act"), was then followed. A jury was empanelled under Section 4 of the Act to determine the question of fitness to be tried. Upon a finding that the appellant was unfit to stand trial, a jury was empanelled, under Section 4A, to determine whether they were satisfied, as respects the count on which the accused was to be tried, that he did the act or omission charged against him as the offence. The jury concluded that the appellant did the act charged against him as the offence. The question then arose as to what order Goldring J should make. It is now common ground that, in the circumstances, he was required to make an order under Section 5 (2) (a) of the 1964 Act, as amended. It provides that: "……. the court shall ….. – a) make an order that the accused be admitted, in accordance with the provisions of Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, to such hospital as may be specified by the Secretary of State;…." An alternative course under Section 5 (2) (b) was not available because the findings of the jury related to an offence the sentence for which is fixed by law (Section 5 (3)). It was, however, submitted by leading counsel on behalf of A: "Now, my Lord, the only qualifications to this that I have been able to discern are first of all that I take your Lordship, please, to page 756 of Archbold ……… and to the Crime (Sentences) Act 1997 section 47. Now this appears to me to enable your Lordship to specify the hospital to which the defendant can go. Because under section 47, where there is a power, as here, under 47 (i) (d) you have the power to specify the hospital unit where he should go to. In other words Parliament is giving the judge who has heard the case the power to send to the hospital that he, no doubt on the evidence which he has heard, thinks is appropriate. So, in other words, it is a substitution of the Secretary of State's power as I understand it. And so your Lordship can in fact – if you go back to my note – you can in fact direct, if your think it right, that the defendant should be taken forthwith to the Newton Lodge Regional Secure Unit. Of course, thereafter, if for example the Secretary of State, in consultation with the doctors, should decide that the defendant should go somewhere else, there are other provisions, as I understand it, which will enable his transfer within the system, but that at least gives your Lordship the power." Counsel for the prosecution did not dissent from that view. Having been informed that there was a bed for A at the Secure Unit, Goldring J stated: "As I observed when speaking to the jury, it is a very sad case. I am going to make the only order that I can in the circumstances, I order that you be admitted to a hospital – I am going to specify that hospital, it is Newton Lodge Regional Secure Unit in Wakefield – where a bed is immediately available and I order that you be conveyed there immediately. This addition to the order for admission is without limit of time and there is also a Restriction Order, again without limit of time." Schedule 1 to the 1991 Act, headed "Orders for Admission to Hospital" specifies the effect of an admission order under section 5 of the 1964 Act. It provides in paragraph 1(1) that the order shall be sufficient authority for any person acting under the authority of the Secretary of State to take the person to whom the order relates and convey him at any time within the relevant period to the hospital specified by the Secretary of State. The relevant period for present purposes was one of two months beginning with the date on which the order was made (para.1 (4)). Paragraph 1 (3) provides: "Where a person is admitted within the relevant period to the hospital specified by the Secretary of State, the admission order shall be sufficient authority for the managers to detain him in accordance with the provisions of the 1983 Act referred to in paragraphs 2 and 3 below, as those provisions apply by virtue of those paragraphs." [paragraph 3 is not material in the present case] Paragraph 2 of the schedule provides: "(1) A person who is admitted to a hospital in pursuance of an admission order made otherwise than under section 14A of the 1968 Act shall be treated for the purposes of the 1983 Act – (a) as if he had been so admitted in pursuance of a hospital order within the meaning of that Act made on the date of the admission order; and (b) if the court so directs, as if an order restricting his discharge had been made under section 41 of that Act, either without limitation of time or during such period as may be specified in the direction. (2) Where the offence to which the special verdict, findings or appeal relates is an offence the sentence for which is fixed by law, the court shall give a direction under sub-paragraph (1) (b) above without specifying any period." The special restrictions applicable to a patient in respect of whom a restriction order under Section 41 is in force are substantial and the consent of the Secretary of State is required if certain powers otherwise available under the 1983 Act are to be exercised. For completeness, I refer to paragraph 1 (2). It provides that the court by which any such order is made may give such directions as it thinks fit for the conveyance of a person to whom the order relates to a place of safety and his detention there pending his admission to hospital within the relevant period. Paragraph 4 (1) provides: "(1) If, while a person is detained in pursuance of an admission order made by virtue of section 5 (1) (b) of the 1964 Act (findings of unfitness to plead etc.), the Secretary of State, after consultation with the responsible medical officer, is satisfied that that person can properly be tried, the Secretary of State may remit that person for trial either – (a) to the court of trial; or (b) to a prison; or (c) to a remand centre provided under section 43 of the Prison Act 1952; and on his arrival at the court, prison or remand centre, the order shall cease to have effect." It is common ground, that, unfortunately, the judge was led into error by the reference to section 47 of the Crime (Sentences) Act 1997 which does not confer the power suggested by counsel. In the circumstances which existed, the court was obliged to make an admission order under section 5 (2) (a) of the 1964 Act, as amended. Moreover, by virtue of paragraph 2 of Schedule 1 to the 1991 Act, the court was required to give a direction that the appellant should be treated as if an order restricting his discharge had been made under Section 41 of the 1983 Act, without limit of time. There was then a further error in that an officer at Bradford Crown Court issued a form of order which did not accord with the judge's ruling. It was headed "Hospital Order with Restrictions Ordered Under Section 41 of the Mental Health Act 1983". It recorded that A had been convicted of murder, that within 28 days from the date of the order the defendant should be admitted and detained in hospital, namely Newton Lodge Regional Secure Unit, and that the court had ordered that the defendant should be subject to the special restrictions set out in Section 41 of the 1983 Act. There was no jurisdiction to make an order directly applying Section 37 and 41 of the 1983 Act because, amongst other things, such an order cannot be made in respect of an offence the penalty for which is fixed by law, as in the case of murder. It is clear, however, from what he said that the judge intended the restrictions in section 41 to apply, but he applied them by the wrong route. On admission to Newton Lodge, both the respondents and the Secretary of State believed that the appellant was detained under Sections 37 and 41 of the 1983 Act. No hospital was designated by the Secretary of State under Schedule 1 to the 1964 Act, as amended. The misapprehension was not identified until April 2002, that is of course well outside the period of two months from the date the order was made. In an attempt to remedy the position, the Crown Court issued a form of amended order in April 2002 purporting to be an order for admission to hospital in appropriate terms. It was dated 28 February 2001, carried a signature of an officer of the court, and was endorsed as "an amended order re-issued on 18 April 2002". On 13 May 2002, the respondents accepted an application to detain A under Section 3 of the 1983 Act, (civil admission for treatment). A's present solicitors (who had not appeared at the trial) sought clarification and noted that A had not been informed of the right he claims to have had to a hearing before a Mental Health Review Tribunal in the first six months after the admission order was made, a right not conferred on those detained under SS 37/41 of the 1983 Act. The respondent sought judicial review of the Crown Court order. Newman J concluded that the effect of Goldring J's order was that the judge "purported to make an Admission Order to the Newton Lodge Regional Secure Unit in Wakefield when he had no power to do so". Having held that the order was made without jurisdiction, Newman J stated that it was not void but an effective order until set aside so that A's detention had been subject to it. In the circumstances, the judge held, the Section 3 order had been of no effect. The judge remitted the issue to the Crown Court on the basis that "it is essential, in the public interest, there should be no confusion as to the statutory basis upon which Mr A is detained". The form of order issued by an officer at the Crown Court was of no legal effect, he held, "It is the order as pronounced in court which has legal effect, not the form of order drawn up by court officials purporting to reflect the judge's order". Newman J also held that the court had jurisdiction to grant relief. Section 29 (3) of the Supreme Court Act 1981 did not apply to orders under the 1964 Act. Further, no action was required with respect to the Section 3 order because that order had no effect. On 13 July 2003, the Crown Court made an order under Section 5 of the 1964 Act, as amended, which Mr Gledhill accepts would have been lawful had it been made on 28 February 2001. After reciting the procedure under the 1964 Act which had been followed, it provided: "IT IS ORDERED that the accused be admitted, in accordance with Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, and within a period of two months from the date of this Order, to such hospital as may be specified by the Secretary of State. AND IT IS DIRECTED that, pending admission to the said hospital within a period of two months from the date of this Order, the accused shall be conveyed to and detained in a place of safety namely: Newton Lodge Secure Unit, Fieldhead Hospital, Ouchthorpe Lane, Wakefield AND IT IS DIRECTED that, in accordance with paragraph 2 (1) (b) of Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, the accused shall be treated as if an Order had been made under Section 41 of the Mental Health Act 1983 restricting his discharge without limitation of time." The submissions of Mr Gledhill, for the appellant, are, first that the relevant proceedings were not "in a criminal cause or matter" so as to exclude the jurisdiction of the Court of Appeal (Civil Division) under Section 18 (1) (a) of the Supreme Court Act 1981 ("the 1981 Act"), secondly, that the matter was one "relating to trial on indictment" and so outside the jurisdiction of the High Court by virtue of Section 29 (3) of the 1981 Act, thirdly, that Newman J has misconstrued the order made by Goldring J, fourthly, that Newman J should not have granted relief in circumstances where the Secretary of State had been in error in failing to ensure the lawfulness of the detention and, fifthly, that in all the circumstances discretion should not have been exercised to grant relief to the respondents. Mr Gledhill accepts that, provided the issue of the lawfulness of A's detention to date is left open, it does not fall for consideration on the hearing of this appeal. The court decided, without objection from counsel, to take the jurisdictional point first. Section 18(1) of the 1981 Act provides insofar as is material "No appeal shall lie to the Court of Appeal – (a)…… from any judgment of the High Court in any criminal cause or matter….." On the issue of the jurisdiction of this Court, Mr Gledhill submits that once the appellant had been found unfit to stand trial, the criminal trial had come to an end. Thereafter the proceedings were the protective proceedings of determining whether or not A needed to be detained in hospital, which was a non-punitive procedure not involving a conviction. The criminal trial process, the criminal aspect of the matter, had come to an end and subsequent proceedings were not in a "criminal cause or matter" within the meaning of section 18(1)(a). There has been considerable litigation upon the construction of the expressions "charged with a criminal offence", "criminal cause or matter" and "relating to trial on indictment" and "criminal proceedings". The need to classify proceedings, and parts of proceedings, for different purposes has generated a large body of jurisprudence. The jurisprudential complexity is unfortunate, submits Mr Gledhill, but only parliamentary intervention can cure it. The expressions cited above do differ from each other and cases dealing with one are of only limited value in construing one of the others. Reliance is placed by Mr Gledhill on the decision of the House of Lords in R v H [2003] 1 WLR 411. The expression to be construed was "everyone charged with a criminal offence" in Article 6 of the European Convention on Human Rights. Rights are conferred upon such a person by Article 6 of the Convention in the determination of any criminal charge against him. A jury had found a defendant unfit to plead and it was contended that to proceed under section 4A of the 1964 Act to determine whether he had done the act charged would be an abuse of process and contrary to Article 6. Giving a judgment with which the other members of the House agreed, Lord Bingham of Cornhill stated, at paragraph 18: "It would be highly anomalous if section 4A, introduced by amendment for the protection of those unable through mental unfitness to defend themselves at trial, were itself to be held incompatible with the Convention. It is very much in the interest of such persons that the basic facts relied on against them (shorn of issues concerning intent) should be formally and publicly investigated in open court with counsel appointed to represent the interests of the person accused so far as possible in the circumstances. The position of accused persons would certainly not be improved if section 4A were abrogated. In my opinion, however, the argument is plainly bad in law. Whether one views the matter through domestic or European spectacles, the answer is the same: the purpose and function of the section 4A procedure is not to decide whether the accused person has committed a criminal offence. The procedure can result in a final acquittal, but it cannot result in a conviction and it cannot result in punishment. Even an adverse finding may lead, as here , to an absolute discharge. But if an adverse finding leads to the making of a hospital order, there is no bar to a full criminal trial if the accused person recovers, an obviously objectionable outcome if the person has already been convicted. The section 4A procedure lacks the essential features of criminal process as identified in Customs and Excise Comrs v City of London Magistrates' Court [2002] 1 WLR 2020, 2025." In the City of London case, in the Divisional Court, access orders had been sought by the Customs and Excise Commissioners against banks to facilitate an investigation into the affairs of taxpayers and the issue was whether the resulting proceedings constituted "criminal proceedings" within the meaning of section 19 (1) of the Prosecution of Offences Act 1985. Lord Bingham, with whom Morison J agreed, stated, at page 2025A: "It is in my judgment the general understanding that criminal proceedings involve a formal accusation made on behalf of the state or by a private prosecutor that a defendant has committed a breach of the criminal law, and the state or the private prosecutor has instituted proceedings which may culminate in the conviction and condemnation of the defendant" It was held that, applying that test, and although the taxpayers were suspected by the Commissioners of criminal offences, the proceedings were not criminal proceedings. It is submitted, by analogy, that the relevant proceedings in the present case are not in "a criminal cause or matter." The expression "criminal cause or matter" in the predecessor to section 18(1)(a) was considered by the House of Lords in Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] A.C. 148. The question was whether the Court of Appeal could hear an appeal from a refusal of the Divisional Court to grant a writ of habeas corpus to a conscript in the Netherlands Army in the United Kingdom who was detained pending handing over to the Dutch military authorities in the United Kingdom. Viscount Simon LC, with whom the other members of the House agreed, stated: "It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment of an alleged offence by a court claiming jurisdiction to do so, the matter is criminal." Lord Wright added, at page 162: "The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a "criminal cause or matter". The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself is neutral in character and might equally have been made in a cause or matter which is not criminal." In Day v Grant [1987] Q.B 976, Sir John Donaldson M.R. referred to the speech of Lord Wright in Amand and stated: "So Lord Wright was saying that you look not at the particular order under appeal, but to the underlying proceedings in which that order was made, and those are the proceeding which have to be characterised as either criminal or non-criminal." In Carr v Atkins [1987] Q.B 963, it was held in this court that an order (or a refusal of an order) under Schedule 1 to the Police and Criminal Evidence Act 1984 relating to excluded or special procedure material was made in a criminal context in aid of a criminal investigation. Notwithstanding that proceedings had not been started, it was "a criminal cause or matter". In in re O & Anr (Restraint Order: Disclosure of Assets) [1991] 2 QB 520, the status of a restraint order pursuant to Section 77 of the Criminal Justice Act 1988 was considered. Lord Donaldson MR stated, at page 527H: "The outstanding feature of the legislation is the clear dichotomy made between sections 71 and 75, which confer jurisdiction upon the Crown Court and magistrates' courts to make confiscation orders in criminal proceedings and provide for enforcement procedures thereafter and sections 76 to 82 which confer jurisdiction upon the High Court to make restraint and charging orders designed to preserve assets upon which the orders of the criminal courts may bite at a later stage. In Gooch v Ewing Q.B. 791 it was the magistrates' court which, having concluded criminal proceedings, embarked by the agency of its clerk on seeking a remedy which was civil in character. In the present appeal the division is clearer, because the court concerned with criminal matters is not involved at all. It is the Crown Prosecution Service which applies for the restraint order. In my judgment the regime provided by sections 76 to 82 is wholly collateral to the criminal regime provided by sections 71 to 75 and is civil in character. I reach this conclusion with relief, because were it otherwise third parties such as banks and alleged donees of gifts would be left with no avenue of appeal if they were aggrieved at the orders of the High Court." In Government of The United States of America v Montgomery & Anr [2001] 1 WLR 196, Lord Hoffmann, with whom Lord Cooke, Lord Hutton and Lord Scott agreed, expressly agreed with the conclusion in re O and held that the same applied to external confiscation orders. Lord Hoffman considered Amand and stated, at page 202C: "… Viscount Simon intended his second sentence [as cited above] to be illustrative of a case in which the "nature and character of the proceedings" were criminal and not an exhaustive definition of such proceedings. If they were, it would be difficult to explain why an order for the taxation of the defendants costs in a failed prosecution for criminal libel was held to be "in a criminal cause or matter" in R v Steel Q.B.D 37. Indeed, I would doubt the wisdom of trying to formulate any definition of "criminal cause or matter" to supplement the undefined expression used by parliament. " R v Terry James F [2003] EWCA Crim 1625, involved a charge of burglary. The defendant was found unfit to plead and it was found that he had done the acts alleged. Notwithstanding that there had been no conviction, orders were made under section 37 (1) and 41 of the 1983 Act. That course was not available to the court. This court found that the correct order would have been an admission order under section 5 (2) (a) of the 1964 Act. Kennedy LJ stated: " 9. This Court sitting as a Court of Appeal Criminal Division had in fact no jurisdiction to consider an appeal against sentence because such an appeal can only be brought after a conviction: see section 9 of the Criminal Appeal Act 1968…. 10. The finding of unfitness brought the trial of this applicant to an immediate end: see R v Antoine [1999] 2 Cr App R 225 at 231. There is statutory right of appeal to the Court of Appeal Criminal Division against the finding that he was under a disability and against the finding that he did the acts alleged – see section 15 of the Criminal Appeal Act 1968 as substituted by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 – but there is no statutory right to appeal against the order for disposal. That has to be dealt with by means of an appeal to the Divisional Court. As explained in the case of Grant [[2002] 2 WLR 1409] such an appeal is not barred by Section 28 (2) of the Supreme Court Act 1981 since the trial on indictment terminated once the jury held that the appellant was unfit to be tried. Thus hearings under section 4A are not trials on indictment and an order made under section 5 is not a matter relating to a trial on indictment: see also the decision on this Court in Latif [2002] EWCA Crim 2115." The court re-constituted itself as a Divisional Court, set aside the orders purportedly made under sections 37 and 41 and remitted the matter to the Crown Court "so that appropriate orders may be made under section 5 of the 1964 Act". While highlighting the jurisdictional curiosities in this part of the law, Terry James F is not decisive on the present issue, which did not arise for consideration. For the Crown Court and the Secretary of State, Mr Perry observes that on the present and similar facts, a defendant has the protection of recourse to the Divisional Court and, in appropriate cases, to the House of Lords, in the way a defendant in extradition proceedings does. Proceedings to obtain restraint and similar orders are clearly collateral to the criminal proceedings, it is submitted, in a way the procedure now under consideration is not. Those proceedings are truly outside the trial process. The rights of third parties may also be involved. To illustrate the distinction, Mr Perry draws attention to the Proceeds of Crime Act 2002 which makes specific provision, in part 5, for the "Civil recovery of the proceeds etc. of unlawful conduct". Express provision is made in part 2 of the Act, headed "Confiscation: England and Wales", for appeals to the Court of Appeal. In my judgment, the appeal to the High Court was an appeal in "a criminal cause or matter" as defined in section 18(1)(a) of the 1981 Act. Where proceedings are initiated in the Crown Court following an allegation of a breach of the criminal law, it appears to me that an overall view of the proceeding is appropriate and not an order-by-order analysis (Lord Wright in Amand). That was also contemplated by Viscount Simon LC in Amand when referring to the "nature and character of the proceedings" and by Lord Donaldson's reference to looking at the "underlying proceedings" in which the order was made. Lord Bingham's test in City of London is met, though the test is based on a somewhat different term. As Lord Hoffman observed in Montgomery, Viscount Simon LC in Amand, when referring to the direct outcome of proceedings being the possible punishment of the defendant, was giving an illustration relevant to the facts of that case and not an exhaustive definition of the proceedings. The Crown Court orders under consideration did not cease to be orders in "a criminal cause or matter" because, upon the verdicts entered, the statute empowered the court to make a custodial order in the absence of a conviction. The orders were in no way collateral to the criminal proceeding which had been initiated by the making of the criminal charge. They provided a method of giving effect, in circumstances in which a conviction is not appropriate, to what had plainly been initiated as a criminal proceeding. They were not collateral to the criminal proceedings in the way that restraint and confiscation orders are. That view is reinforced by the presence of the provision in paragraph 4 of schedule 1 to the 1991 Act that there may be circumstances in which a person detained under a section 5(1) order may subsequently be remitted for trial. A conventional criminal trial remains a possibility and an overall view of the statutory procedure makes each order within it an order in "a criminal cause or matter". It is not in my view appropriate to compartmentalise the orders, some being made in "a criminal cause or matter" and others not. I do not find that conclusion inconsistent with a finding that a part of the procedure does not involve the determination of a criminal charge against the appellant. In the course of the hearing, I raised the question whether it would have been possible simply to reconvene the Crown Court much later and make the order which statute obliged the court to make. That would be on the basis that a court which has, by omission, failed to do what it was obliged to do is not prevented from subsequently performing its duty. Upon discovering the existence of a purported order which it had no jurisdiction to make, could the court reconvene to make the order it was required to make ? Subject to argument based on abuse of process, there is no time limit, following appropriate jury verdicts, on the making of an order under section 5 of the 1991 Act. Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 confers a power to vary or rescind a sentence imposed or order made in the Crown Court "when dealing with an offender" but only within the period of 28 days beginning with the day on which the sentence or other order was imposed. In Customs and Excise Commissioners v Menreal [1980] A C 598 Lord Salmon considering at p607G the predecessor to section 155, stated that "there is however no power in the Crown Court to vary or rescind a sentence or any other order after the expiry of that [28 days] period". The order sought to be altered in that case was within the jurisdiction of the court and not, as in the present case, beyond its powers and the defendant in that case was undoubtedly "an offender". There is no need to decide the point in the present case and, having raised it, I do not attempt to do so. In my judgment, the court has no jurisdiction to hear an appeal by Mr A. Having reached the conclusion that the court has no jurisdiction, it is unnecessary, and would be inappropriate, to consider the other issues raised on behalf of the appellant, save to observe that I see force in the respondents' submission that it is very difficult to reconcile the appellant's argument that the order was not made in "a criminal cause or matter" with the argument that it did relate "to trial on indictment" and was therefore beyond the jurisdiction of the Divisional Court by virtue of section 29(3) of the 1981 Act. On my findings, any appeal from the Divisional Court would be by way of an application for certification followed by an application for leave to appeal to the House of Lords. Lord Justice Chadwick: I agree that there is no jurisdiction to hear this appeal. Section 18(1)(a) of the Supreme Court Act 1981 provides that, except as provided by the Administration of Justice Act 1960 (which provides for appeals from orders made to punish criminal contempt), no appeal shall lie to the Court of Appeal "in any criminal cause or matter". The question, therefore, is whether the order made on 27 March 2003 by Mr Justice Newman in the proceedings for judicial review of the earlier order made on 28 February 2001 by Mr Justice Goldring in the Bradford Crown Court was an order made in a criminal cause or matter. In my view the answer to that question is "Yes". In making the order which he did, Mr Justice Newman accepted jurisdiction under section 29(3) of the Supreme Court Act 1981. That section gives to the High Court, "in relation to the jurisdiction of the Crown Court other than its jurisdiction in matters relating to trial on indictment", all such jurisdiction to make orders of mandamus, prohibition or certiorari as it (the High Court) possesses in relation to the judgment of an inferior court. The order which the judge made on 27 March 2003 was an order in relation to the jurisdiction of the Crown Court under section 5(2)(a) of the Criminal Procedure (Insanity) Act 1964, as amended. Mr Justice Newman held that the jurisdiction under section 5 of the 1964 Act was not jurisdiction in a matter relating to trial on indictment. If it were necessary to decide the point, I would be inclined to agree. But it is not necessary to decide that point. Whether or not the jurisdiction under section 5 of the 1964 Act is jurisdiction in a matter relating to trial on indictment, it is, plainly, jurisdiction of the Crown Court in a criminal cause or matter – in the sense identified by the House of Lords in Amand v Home Secretary and Minister of Defence of the Royal Netherlands Government [1943] AC 148 and in Government of the United States of America v Montgomery & Anr [2001] 1 WLR 196. And it was in relation to that cause or matter that Mr Justice Newman made the order which he did. Lord Justice May: I agree that this court does not have jurisdiction to entertain this appeal for the reasons given by Pill LJ.

MR. JUSTICE KITCHIN: Introduction I have before me two applications in a patent action concerning EP (UK) 1 296 947 ("the Patent"). The first is an application by the claimants (collectively "Servier") for an interim injunction under the Patent to prevent the defendants (collectively "KRKA") from importing, offering to dispose of or disposing of within the UK a generic pharmaceutical containing as its active ingredient perindopril erbumine ("perindopril") in the alpha crystalline form pending the trial. The second is an application by KRKA for summary judgment on the basis that the Patent is clearly invalid. The first claimant is the largest privately owned innovative pharmaceutical company in France and the second largest French pharmaceutical company worldwide. It holds 2,400 marketing authorisations worldwide, but the most commercially successful drug which it has developed and produced is Coversyl, whose active ingredient is perindopril. Servier are heavily committed to research and development. They invest 25% of their turnover and 2,500 of their employees work in research and development. The second claimant is a UK registered company and a wholly owned subsidiary of the Servier Group. It currently has 501 employees, who are split between sales and marketing on the one hand and research on the other. The majority of its 345 medical representatives are engaged in supporting the sales of Coversyl. Coversyl acts by blocking the activity of Angiotensin - Converting Enzyme ("ACE"), that is to say it is an ACE inhibitor. This is the basis of the action of the drug in reducing blood pressure and providing beneficial vascular and antiatherosclerotic effects. It is used in the treatment of hypertension, heart failure and coronary artery disease. Coversyl has596 marketing authorisations and is sold in 108 countries around the world. It accounts for 31% of Servier's worldwide turnover and 87% of the turnover of the second claimant. Worldwide sales of the drug generated about £477 million in 2005 and about £72 million in the UK. During 2006, the growth rate of UK sales was 22%. Coversyl is an important therapy and is broadly prescribed in the UK. The UK is currently the biggest national market worldwide for Coversyl, both in terms of turnover and units sold. KRKA are members of the KRKA Group and are suppliers of a wide range of generic pharmaceutical products. Background The Patent relates to the alpha crystalline form of perindopril and methods for its preparation. It has been the subject of opposition proceedings before the European Patent Office ("EPO"), brought by a total of ten opponents, including KRKA. An oral hearing took place before the Opposition Division on 27th July 2006and the Patent was upheld with amended claims. The arguments raised on this application by KRKA were considered and rejected by the Opposition Division during the course of the hearing. That decision is to be the subject of an appeal, at least by KRKA. In December 2005, Servier became aware that KRKA had obtained a marketing authorisation for generic perindopril in Hungary and were offering to sell that product under the brand name Prenessa. Servier acquired a sample of the product and analysed it to determine its crystal form. They took the view that the product contained the alpha crystalline form and, thereafter, took steps to prevent KRKA from commercialising the product in Hungary. Those steps began with a cease and desist letter written on 4th May 2006. Servier monitor the UK market constantly to look for the entry of generic versions of their branded products and, as part of that monitoring, discovered, on 11th May 2006, that KRKA had been granted four marketing authorisations for generic perindopril in 2 and 4 mg forms in the UK. KRKA's marketing authorisations were obtained under the Mutual Recognition Procedure and the reference state was Hungary. Mr. Falcand, the Chief Executive Officer of the second claimant, has deduced from this that the UK marketing authorisations are based on the same regulatory dossier as submitted in support of KRKA's application for a marketing authorisation to the Hungarian authorities and that the product which KRKA seek launch in the UK must therefore be identical to the one commercialised in Hungary. Thereafter, Servier and KRKA corresponded through their UK lawyers. On 15th May, Servier's solicitors wrote to KRKA drawing their attention to the fact that Servier had learnt that KRKA had obtained marketing authorisations for the sale of the generic form of perindopril in the UK and requesting, as a matter of urgency, information as to whether or not it was their intention to launch generic perindopril in the UK and, if so, the anticipated launch date, the provision of full details of the product and the industrial process by which it is produced, and a sample of the product itself. On 31st May, KRKA's solicitors provided a product description and, on 23rd August, samples of KRKA's tablets were provided to an independent laboratory. In the meantime, on 1st August, Servier issued proceedings seeking interim relief with an original return date of 13th September. On 9th August, KRKA's solicitors offered short-term undertakings not to launch their product in the UK until the earlier of the effective hearing date of the interim injunction application or the expiry of two clear working days' written notice of the proposed launch date. On 1st September, KRKA served their application for summary revocation of the Patent. So it is that the two applications now come before me. There are two other matters that I should mention at the outset. First, this is not the only infringement action under the Patent. In July 2006, Servier became aware that another generic manufacturer, Apotex, had applied for, and obtained, marketing authorisation for the marketing of a generic perindopril product in the UK. On 8th August, Servier applied for, and were granted, an interim injunction to restrain the marketing of that product pending further hearing of the application, anticipated to take place in about three weeks' time. In the event, I understand the injunction has been continued by agreement pending the trial of the action which is currently listed to be heard in February of next year. I should add that Apotex accepted, for the purpose of the hearing, that the Patent was valid. Secondly, another generic company, Ratiopharm, have also obtained authorisation to sell a generic perindopril product. Ratiopharm have undertaken to refrain from the launch of that product pending the conclusion of these proceedings. Legal principles The general principles I have to apply when considering whether to grant an interim injunction were explained by the House of Lords in American Cyanamid v. Ethicon [1975] AC 396. The House of Lords emphasised that it is no part of the court's function at this stage of litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend. The starting point is that the court must be satisfied that the claim is not frivolous or vexatious, that is to say, that there is a serious question to be tried. Unless the material before the court fails to disclose that the claimant has any real prospect of success in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interim relief sought. The steps involved in the exercise of these principles are well-known and I do not need to repeat them here. I would simply note that the adequacy of the respective remedies in damages to the parties must be considered and that it is where there is doubt as to the respective remedies in damages that the question of balance of convenience arises. Further, in assessing where the balance of convenience lies, the extent to which the disadvantages to each party would be incapable of being compensated in damages in the event of his success at trial is a significant factor to take into consideration. Where other factors are evenly balanced, then it is a counsel of prudence to take such measures as are calculated to preserve the status quo. As to the extent to which it is appropriate to take into account the strength of each party's case, Lord Diplock said this at 409: "…. if the extent of uncompensatable disadvantage to each party would not differ widely, it may not be improper to take into account in tipping the balance the relative strength of each party's case as revealed by the affidavit evidence adduced on the hearing of the application. This, however, should be done only where it is apparent upon the facts disclosed by evidence as to which there is no credible dispute that the strength of one party's case is disproportionate to that of the other party. The court is not justified in embarking upon anything resembling a trial of the action on conflicting affidavits in order to evaluate the strength of either party's case." In considering the application of these principles, it is important to keep in mind that the starting point is that the claimant must establish, by his evidence, that there is a serious question to be tried. As Lord Diplock himself said in Eng Mee Yong v. Letchumanan [1980] AC 331, at 341B-G, "Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be. In making such order on the application as me "may think just" the judge is vested with a discretion which he must exercise judicially. It is for him to determine in the first instance whether statements contained in affidavits that are relied upon as raising a conflict of evidence upon a relevant fact have sufficient prima facie plausibility to merit further investigation as to their truth." The same point emerges from the judgment of Slade J in Re Lord Cable [1976] 3 All ER 417, at 430: "I add one further observation in relation to the evidentiary position. American Cyanamid Co. v. Ethicon Ltd. may have led prospective plaintiffs to the belief, perhaps partially justified, that it is not necessary for them to adduce affidavit evidence in support of a motion for an interlocutory injunction of such a precise and compelling nature as might have been required before that decision. Nevertheless, in my judgment it is still necessary for any plaintiff who is seeking interlocutory relief to adduce sufficiently precise factual evidence to satisfy the court that he has a real prospect of succeeding in his claim for a permanent injunction at the trial. If the facts adduced by him in support of his motion do not by themselves suffice to satisfy the court as to this, he cannot in my judgment expect it to assist him by inventing hypotheses of fact on which he might have a real prospect of success." This brings me to the principles to be applied in relation to KRKA's application for summary judgment. These were summarised by the Vice-Chancellor in Celador Productions v. Melville [2004] EWHC 2362. as follows: (a) the applicant must show that the respondent's case has no real prospect of success at trial; (b) a "real" prospect of success is one which is more than fanciful and merely arguable; (c) if it is clear beyond question that the respondent will not be able at trial to establish the facts on which he relies then his prospects of success are not real; (d) the court is not entitled, on an application for summary judgment, to conduct a trial on the documents without disclosure or cross-examination. Infringement   The evidence in support of the infringement claim is set out in the witness statement of Mr. Whitfield, a solicitor in the firm of solicitors instructed by Servier in these proceedings and who has the conduct of this action under the supervision of his partner. He explains, as is the case, that claim 1 of the Patent is to the particular alpha crystalline form of perindopril which is characterised by an X-ray diffraction pattern expressed in the form of the relative intensities of the diffraction peaks found at various scattering angles 2 theta. The most intense peak of the alpha form pattern is at a 2 theta angle of 9.0 degrees, and further intense peaks are found at 2 theta angles of 11 degrees and 13.7 degrees. Mr. Whitfield deposes that he has been informed by Dr. Jaguelin-Guinamant, who has a PhD in chemistry and is Head of Patents at Servier, that powder x-ray diffraction analysis of KRKA's tablets is sufficient to determine the crystalline form of the generic perindopril they contain. This is because each crystalline from of perindopril has its own characteristic x-ray diffraction pattern, and the presence of peaks unique to one crystalline form are determinative of its presence. He has further been told by Dr. Jaguelin-Guinamant that there is no need to establish the presence of all of the x-ray diffraction peaks set out in claim 1 in order to be certain that the alpha crystalline form as claimed in the Patent is present. Provided that "fingerprint" peaks are observed, the identity of the crystalline form can be ascertained. Servier have compared, first, x-ray diffraction patterns of KRKA's tablets; second, x-ray diffraction patterns of reference samples of three crystalline forms of perindopril, that is to say the alpha, beta, and gamma forms; and, third, x-ray diffraction patterns derived from tablets that are equivalent in composition to KRKA's tablets but with the perindopril active ingredient removed. Analysis of the x-ray diffraction patterns of KRKA's tablets has revealed that three peaks are present at 2 theta angles of 9 degrees, 11 degrees, and 13.7 degrees and, further, these peaks are not found in the x-ray diffraction patterns of the equivalent tablets but with the perindopril removed. Mr. Whitfield explains that it is Dr. Jaguelin-Guinamant's opinion that the presence of these peaks in the patterns derived from KRKA's tablets clearly indicates the presence of the alpha crystalline form. KRKA have not yet admitted infringement but neither have they put forward any case in answer to that advanced by Servier. In the light of the evidence to which I have referred, I am satisfied that Servier have established a serious issue to be tried on the question of infringement. Validity This is an area of major dispute between the parties. For the purpose of the application before me, KRKA submit that the Patent is plainly invalid for lack of novelty or obviousness in the light of (a) an earlier Servier patent, namely, EP 0 308 341 ("341"), and/or (b) the sale by Servier before the priority date of the Patent of Coversyl tablets. They say it should be revoked now. I will address the objections in turn. 341 341 describes a method for the synthesis of perindopril and the subsequent formation of the perindopril salt which is obtained as a solid product after a process of crystallisation. It does not describe the particular crystalline form of the perindopril salt, nor that perindopril can occur in alpha, beta, and gamma crystalline forms. The crucial part of the disclosure is "Stage 3D" which instructs the reader to place in a reactor approximately 140 litres of ethyl acetate and 10 kg of the particular carboxylic acid product previously obtained. The reader is further instructed to "Add gradually approximately 2.20 kg of tert-butylamine, heat to reflux until all has dissolved; filter. Cool, filter off, and dry". KRKA's case is that the inevitable result of carrying out this stage is the production of perindopril in the alpha crystalline form. In support of this contention KRKA rely upon a number of matters. First, they point to the evidence of their expert, Mr. Ward, who is a retired industrial chemist, having worked for all his professional life for GlaxoSmithKline and its predecessor businesses, starting in 1961 until his retirement in 2002. He explains that as an industrial chemist working in the pharmaceutical industry he has gained considerable experience in the manufacture and study of crystalline compounds at laboratory, pilot plant scale and industrial scale. Mr. Ward explains that he understands Stage 3D to be describing natural cooling. He points out there is no indication in the description of Stage 3D or elsewhere within 341 of any special measures being required to cool the mixture. Given that the author is concerned with an industrial process, Mr. Ward has no doubt that had he or she required special steps to be taken to obtain rapid cooling to low temperatures then the fact and nature of this cooling would have been specified. He therefore believes that natural cooling is required and that this view would be shared by others skilled in the art. A little later in his evidence he elaborates his reasoning and, in particular, points out that Stage 3D describes either a small production batch or a pilot plant scale batch. It uses 140 litres of ethyl acetate and that a batch of this size would require a jacketed steel vessel of at least 250 litres capacity. In his experience, the first choice of reactor for this type of crystallisation would be a glass-lined steel reactor. He would expect that the cooling of such a reactor vessel from the reflux temperature down to ambient temperature would take several hours, bearing in mind the considerable mass of metal in the vessel and its jacket. Such a first choice reactor could not handle rapid cooling as there would be a very real risk of the thermal stress shattering the glass lining. Another choice of vessel would be needed, for instance a stainless steel vessel with a suitable low temperature coolant circulated through the jacket; yet no specific mention of such a vessel is made in Stage 3D. Second, KRKA rely upon the evidence of Professor Geffken of the Department of Pharmaceutical and Medicinal Chemistry at the University of Hamburg, and the evidence of Professor Meden of the Department of Inorganic Chemistry, University of Ljubljana. Both professors have carried out experiments for the purposes of the opposition proceedings in which they scaled down the quantities described in Stage 3D so they could be performed on a laboratory scale. Importantly, they allowed the filtrate to cool naturally. They both obtained the alpha crystalline form of perindopril. Third, KRKA have put before the court, through the evidence of Mr. Ward, two letters sent by Servier to the EPO in connection with the prosecution of the beta crystalline form patent. These letters strongly indicate, say KRKA, that it is Servier's own view that performing the Stage 3D process of 341 will not produce the beta crystalline form. Since there is no evidence that Stage 3D will produce the gamma crystalline form, KRKA say that it must produce the alpha crystalline form. Fourth, KRKA point to the disclosure of the Patent itself. That describes a particular process for the preparation of the alpha crystalline form which does appear to involve a period of active, albeit slow, cooling. Finally, KRKA have asked for disclosure from Servier of internal documents evidencing the results that Servier obtained when they performed Stage 3D of 341. As yet Servier have not produced any such documents. They say they have not carried out the disclosure exercise, that disclosure is not due and that no application for early specific disclosure has been made. I am satisfied that all of these maters provide a powerful base for the attack on the validity of the patent for lack of novelty or obviousness over 341. Servier, however, say that the matter is not as straightforward as KRKA's submissions would suggest. Crucially, they say that KRKA and their experts have wrongly interpreted the 341 disclosure; rather than teaching natural or carefully controlled and slow cooling under the particular conditions of the Patent, they say that the skilled person would understand 341 to be teaching active cooling and that in so far as the letters they have written to the EPO suggest the contrary, then they are wrong. Further, if active cooling is carried out, Servier say that the alpha crystalline form is not obtained. Servier rely in support of their submissions upon a report of Professor Motherwell, FRS, of the Department of Chemistry, University College London. He explains that in addition to his academic work he has co-operated closely with industry, having worked as a consultant for many years for, amongst others, Quest International, Kimberly-Clark, Heineken, Astra Zeneca, and GlaxoSmithKline. He has frequently been consulted to advise about early stage research and synthetic pathways, typically when a company is looking for new compounds, or ways to make a compound for research purposes, or when a company has already discovered a chemical compound of interest but is having difficulty expanding the production from a few grams needed for research purposes to the quantities required for industrial commercialisation and marketing. He therefore believes that he is familiar with the synthetic requirements for chemical processes on an industrial scale. Professor Motherwell has read 341 and points out that it is clearly concerned with a method for the complete chemical synthesis of the perindopril molecule and subsequent formation of the perindopril salt. Further, the reader is directed to carry out a crystallisation step but 341 does not mention any specific crystalline form of perindopril, nor that perindopril can occur in more than one crystalline form. So far as he is concerned, he understands 341 to be disclosing a chemical synthesis of perindopril which can be employed on an industrial scale. He considers that Stage 3D is directed to the formation of the salt in a solution of ethyl acetate and thereafter the isolation of the perindopril salt in solid form, and that his understanding of the direction given is that the operator should employ some positive action to subject the reaction mixture to cooling rather than simply leaving the reaction vessel to cool naturally. He gives a number of reasons for interpreting the instruction in this way and I would summarise them as follows. First, he says that it is accepted practice in chemical literature to be specific when requiring a particular action. If the patentee had intended the instruction to "cool" to be limited to meaning "leave to cool naturally" then he would have said so explicitly. Second, the example process described in 341 is on an industrial scale and it is, to the best of his knowledge, sound practice in any commercial or industrial process involving preparation of crystalline product to effect a specific defined cooling regime. Further, in an industrial process, it is important to maintain precise control over the conditions under which crystallisation takes place in order to ensure that the desired product is obtained in a reproducible manner. Therefore, an industrial scale reactor should always be cooled in a controlled manner. Third, such industrial scale reactions are carried out in large reaction vessels which are fitted with temperature control mechanisms, such as thermal jackets. These enable an operator to heat and cool a reactor by circulating heating or cooling fluid through the jacket. The size of industrial scale vessels means that they will take a very long time to cool if the heating fluid is simply removed leaving the thermal jacket empty, and the vessel left to cool naturally. He therefore does not believe that an industrial reactor would simply be left to cool, but rather that it would be cooled actively by circulation of a cooling medium through the jacket. Fourth, it is undesirable for large volumes of reaction mixture to be maintained at elevated temperatures for longer than is necessary to perform a particular process step. The reason for this is that elevated temperatures can increase the rate of unwanted side reactions, which may lead to contamination of the desired product as well as loss of material. In the case of perindopril, there is one particular side reaction of which he is aware, namely the base-induced racemisation of the particular chiral centres of the molecule which he has identified in paragraph 18(d) of his report. He points out that the risk of such racemisation is extremely important, because conversion to a mixture of different chiral forms would be extremely undesirable as it would lead to a loss of product and, more importantly, a mixture of stereoisomers which would have to be separated to remove the undesired products. Finally, an excess of tert-butylamine present in the reaction mixture could react with the ethyl acetate solvent giving the products N-(tert-butyl)acetamide and ethanol. Such a reaction would be favoured at high temperatures. Ethanol is a common organic solvent and it is possible that the resulting mixture of solvents could have properties different from those of the desired pure ethyl acetate solvent. This, in turn, could affect the crystallisation process. For all of these reasons, Professor Motherwell understands the instruction given by Stage 3D is to apply a cooling regime to the saturated solution. Servier also rely upon experiments which they submitted to the EPO and which show that rapid cooling to a low temperature produces perindopril crystals in something other than the alpha form. In the light of all this evidence it is, in my judgment, impossible to say that there is no issue to go to trial on the question of anticipation or obviousness of the Patent over 341. I reach this conclusion for all of the following reasons. First, there is clearly an acute conflict on the evidence as to whether the skilled person would implement the teaching of Stage 3D of 341 by actively cooling the solution or by letting it cool naturally. Second, the experimental evidence relied upon by KRKA only goes so far as to show that the alpha crystal form of perindopril is produced when the solution is cooled naturally. Third, it is true to say that the Patent discloses a method of making the alpha crystalline form which involves a particular controlled cooling regime. The cooling regime is, however, a slow one. Fourth, it is at arguable in the light of the evidence of Professor Motherwell that the skilled person would be concerned to cool the solution as quickly as possible to avoid adverse side reactions of the kind which he has described. Fifth, there is no evidence before me upon which I can safely conclude at this stage that such rapid cooling will necessarily produce the alpha crystal form. On the contrary, the evidence filed by Servier suggests that rapid cooling to a low temperature will produce something other than the alpha crystalline form, namely, a form similar to the beta crystalline form. Sixth, I accept that the correspondence passing between Servier and the EPO in connection with the beta crystal form patent suggests that very particular conditions are necessary to secure production of the beta crystalline form. However, the conditions there specified are not consistent with the conditions of the experiments upon which Servier now rely and which unquestionably produce something other than the alpha crystalline form. Finally, I have taken into account the fact that Servier have declined to provide early disclosure. However, I do not think that this is a matter which should drive a finding against them at this hearing. Disclosure is not yet due and no application has been made for early disclosure. In all the circumstances I do not think it would be right to draw from the absence of this disclosure the inference that KRKA invite me to. Prior sale of the Coversyl tablets It is admitted that Servier sold Coversyl tablets before the priority date. However, it is not admitted that the tablets contain the alpha crystalline form of perindopril, nor that the disclosure was enabling. As to the first issue, Mr. Ward explains that he has seen evidence filed by KRKA at the EPO in connection with the opposition to the Patent whereby a Dr. Greman carried out an analysis of tablets from one of the batches sold before the priority date and was able to identify certain peaks that she regarded as distinctive of the alpha crystalline form. Mr. Ward has not had access to the hard data used by Dr. Greman, but certainly her x-ray diffraction patterns show the most significant peak relating to the alpha crystalline form, namely, that at angle 2 theta 9.037. Servier have provided no substantive answer to this evidence. I conclude that KRKA have established that the Coversyl tablets sold by Servier before the priority date of the Patent did contain the alpha crystalline form. On the evidence they have put before me, Servier have not shown that they have any real prospect of success on this issue. I turn then to consider the second issue, that is to say, whether that disclosure was enabling. KRKA say that the sale of the tablets was clearly enabling and that at the priority date any skilled person would have been able to reproduce the tablets, including the alpha crystalline form of perindopril, without undue effort. In support of this submission, they again rely upon the evidence of Mr. Ward. Mr Ward was asked to consider whether a person skilled in the art could make the alpha form of perindopril and expresses the view that he has absolutely no doubt that he could. All that he would have to do is to repeat Stage 3D of 341. He continues that he was also asked to consider what the skilled person would do if he followed the teaching of 341 and, contrary to Mr. Ward's belief, applied a rapid cooling regime and ended up with the beta crystalline form. Mr. Ward says that there is no question that one of the things he would do is alter his cooling regime because it is (and was) common general knowledge that a way of getting a different crystal form is to cool rapidly. Consequently, if rapid cooling produced the wrong crystal form, cooling naturally or more slowly to see if a different form is produced would be an obvious option he would try. Mr Ward also says he would first cool naturally in any event. Further, Mr. Ward says that he could have taken an extra step to ensure that he obtained the same crystalline form as existed in the prior art tablets. He could have crushed the tablets in a pestle and mortar and seeded the hot Stage 3D solution with the resulting powder prior to allowing the solution to cool. The fragments of perindopril ingredient from the pulverised tablet would act as seeds and such seeding would lead to crystallisation of the same crystal form as in the prior art tablet. This, he says, is a well-known technique and was so at the relevant priority date. Further, he was asked to consider whether the skilled person could tell that the product he produced was different to the one on the market. He recognises that it is true that the x-ray diffraction diagram of the tablet is complicated by the presence of excipients which generate their own peaks, which may lie over peaks of the active ingredient, but says that there are two strategies to deal with this problem. The first is to concentrate only on one or two peaks which are not obscured by other ingredients. The second is to generate an x-ray diffraction diagram of the mixture of tablet ingredients in the absence of the active ingredient and perform a process of mathematical subtraction in an attempt to identify those peaks associated only with the active ingredient. He says that, as it happens, the matter would, in this case, be straightforward. If the skilled person found that it was the beta form that was produced by performing 341 then he would be able to tell that it was not the form in the prior art tablets and could produce the prior art form by seeding or altering his cooling conditions accordingly. This is, to my mind, powerful evidence. But it proceeds on a number of assumptions. First, it is important to have in mind that the tablet itself reveals nothing about the crystal form of the perindopril it contains. At the priority date of the Patent, there was no knowledge or understanding of the different crystal forms of perindopril and there is no disclosure of these different forms or how to make them in 341. Second, Mr. Ward does not say that it was possible to extract perindopril from the tablet and so separate the active ingredient from all the excipients. I have no evidence before me to say that the skilled person could carry out this task without undue effort at the priority date. Third, Mr. Ward's evidence therefore proceeds on the basis that the skilled person could, and would, determine the crystal form of the perindopril in the tablet itself. Professor Motherwell has given some important evidence on this issue in his report. He says that the approach proposed by Mr. Ward is, in theory, capable of identifying peaks in an x-ray diffraction pattern that are attributable to the active pharmaceutical ingredient of the tablet tested. However, the active ingredient typically forms a small fraction of the tablet's composition, the remaining material comprising the tablet's excipients. The x-ray diffraction signal that is due to the active ingredient will therefore be low in comparison with that due to the much greater concentration of excipients. This could lead to the relatively small peaks arising due to the active ingredient being lost during the subtraction process described by Mr. Ward as a result of the error in the signal. In the present case it is true to say that this does not in fact occur. Nevertheless, Professor Motherwell's evidence is important because it points to the perception that the skilled person would have. Professor Motherwell also explains that Mr. Ward assumes that if peaks arising due to the active ingredient can be identified, these peaks may be relied upon as a fingerprint character of that ingredient. However, unless the possible crystalline forms of the substance have been characterised, it is not possible to be sure that any particular peak is unique to only one particular crystalline form. Further, he says that except for the testing of the KRKA product carried out in the context of this action, he has never heard of a pharmaceutical company carrying out such a convoluted reverse engineering procedure of a marketed pharmaceutical product in this way as part of its drug development work. To my mind, an important point emerging from this evidence is that it is far from clear that it would occur to the skilled person to carry out the reverse engineering process that Mr. Ward described. Whether or not it would be possible to make it work in practice is one issue. As I have indicated, I certainly have powerful evidence to suggest that it would. However, another issue is whether or not the skilled person would embark upon the task at all. It is on this point that I understand the opinions of the experts differ.   Fourth, Mr. Ward then assumes that the skilled person would turn to 341 to provide a method of making perindopril. But there is no evidence that 341 was common general knowledge at the priority date or something that would attract the skilled person as providing an appropriate method of synthesis. Fifth, even assuming the skilled person did turn to 341, he would face the issue of how to perform the crystallisation step. As I have explained in considering the disclosure of 341, I am not satisfied at this stage, on the evidence before me, that it would be obvious to implement it in such a way that the final product would be the alpha crystalline form. This is a matter that must be determined at trial. Finally, Prof. Motherwell addresses the suggestion made by Mr. Ward that any difficulty could be overcome by seeding. He explains in response that while he agrees that seeding of saturated solutions is a common technique employed to initiate crystal formation, it is desirable to use a sample of pure crystal of the seed. Further, in order to reproduce the crystalline form present in the tablet it would be necessary for the skilled person to select an appropriate solvent and cooling regime. He further explains that whilst seeding of a solution of a product with a sample of a particular crystalline form may affect the crystalline form which is obtained upon the cooling of that solution, in the absence of experimental data he does not know the extent to which the effect of seeding would dominate the effect of choice of solvent or cooling regime, or the extent to which it could be predicted. He says that he has seen no experimental data to demonstrate that such a seeding technique works in the particular case of perindopril tablets. In summary, I have no doubt that KRKA have shown that there is a serious issue to be tried that the sale of Coversyl tablets before the priority date deprives the Patent of novelty. However, I am not persuaded that Servier have no real prospects of defending the Patent against that attack. In the circumstances, I must go on to consider the various matters to be taken into account under the balance of convenience. Balance of convenience Evidence in support of the application is given by Mr. Falcand, the Chief Executive Officer of the second claimant. He explains the dynamics of generic competition in the market for prescription drugs. The following points emerge, which I do not believe to be controversial. In the United Kingdom doctors are free to prescribe drugs by reference to the original brand or the generic name of the active ingredient. They are, however, encouraged by the Primary Care Trusts ("PCTs") and the NHS to prescribe generically. If doctors prescribe the original branded product then pharmacists have no option but to dispense that specific product. But if doctors prescribe generically, then pharmacists are free to dispense either the original branded product or any generic product. In the case of Coversyl, some 99.6% of doctors prescribe the drug generically as perindopril. As long as there is no generic product in the UK market the NHS reimbursement price will match the price of the branded product. Once a generic product is commercialised, however, the NHS will fix the reimbursement price for the generic product. Not surprisingly, a generic entrant will almost inevitably set its price below that of the original branded product. It can take several months for the NHS to fix a reimbursement price for a generic. Before the reimbursement price is fixed, there will be a window of opportunity for the pharmacists, and so also for the generic manufacturer and wholesalers, during which the reimbursement price of any dispensed generic will be the reimbursement price of the branded product. In this way generic products rapidly gain a large share of the market. However, once the NHS has fixed a generic reimbursement price, it is this price which determines reimbursement to the pharmacist even if the branded product is dispensed. There is, therefore, clearly a financial incentive for pharmacists to dispense generic perindopril once it becomes available. If the pharmacist dispenses the branded product on a generic prescription the pharmacist will bear a loss equal to the difference between the cost of the branded product and the generic reimbursement price. If there is more than one generic product entering the market, then the generic products are placed in category M, which means that the average reimbursement price is assessed on the basis of the average selling price of the different generic manufacturers less any discounts. Category M contains generics of branded products which the NHS considers are sold in sufficient volume to warrant an immediate fixing of the generic reimbursement price. This can happen in a matter of weeks. Against this background, Servier reasonably fear that the launch by KRKA of generic perindopril will cause them severe and continuing unquantifiable losses for all of the following reasons. First, KRKA will, by offering its generic perindopril at a lower price than Coversyl, quickly gain a major share of the UK market. Second, I am satisfied that there is a real risk that this will result in the NHS fixing a reimbursement price for the generic product below that of Coversyl. This will produce a further incentive for pharmacists to dispense generic perindopril with the result that Servier will suffer yet further loss of market share, unless they introduce their own generic product. Third, I accept the evidence of Mr. Falcand that there is a real risk other generic manufactures will launch a generic perindopril product as soon as they can. Apotex has a market authorisation but is currently injuncted until after trial, set, as I have indicated, for February of next year. If, however, KRKA are permitted to sell their generic perindopril pending trial, then Apotex may seek to have that injunction lifted or stayed due to the change in circumstances. Further, the German company Ratiopharm have, as I have also explained, recently been granted a marketing authorisation for generic perindopril products in the UK. Mr. Korosec, a director of the second defendants, suggests that Ratiopharm cannot market their product for some four months. But he expects that other competitors will obtain their product licences within the next few months and says that if KRKA are kept off the market until the New Year it is likely that other generic manufacturers will have been able to catch up with them. In the light of this evidence I am satisfied that unless Servier are granted protection there is a real risk that a number of generic manufacturers will have launched generic perindopril into the UK market by the time judgment is given following the trial of this action. Fourth, the effect of this competition is likely to produce a downward spiral in the price of generic perindopril. So much is common ground between Mr. Falcand and Mr. Korosec. Fifth, this downward spiral in price is likely to lead to a collapse in the reimbursement price of perindopril. Mr. Falcand gives some graphic illustrations of this in his evidence, as I shall explain. Sixth, Mr. Falcand believes that once the reimbursement price of perindopril has suffered such a collapse, it will be impossible for Servier to restore the price to its original level, even if they are successful at trial. The reason for this is that once NHS purchasers or PCTs adjust to paying the lower price for generic perindopril, they will be extremely reluctant to resume their purchase of Coversyl at the higher reimbursement price of the branded product. Mr. Falcand fears that if Servier were to insist on a higher price, then the PCTs and NHS purchasers would encourage doctors to prescribe alternative ACE inhibitor products such as Ramipril or Lisinopril, which are currently available as generics. As Mr. Falcand explains, in the case of Ramipril, within two months of the launch of a generic 80% of the market had been lost, and now some 90% of the market is generic. In the case of Lisinopril, the effect of generic entry was even more drastic. AstraZeneca lost over 90% of its market in two months and currently holds less than 3% of the market. Mr. Korosec responds that this belief is ill-founded because Servier could leave their own branded price unchanged and, if successful at trial, recover their market at that original price. I have to say that I find Mr. Korosec's suggestion to be unrealistic. If Servier do not lower their price or launch a generic version of perindopril, they will very quickly lose a substantial part of their market. Further, I am persuaded by Mr. Falcand's evidence that there would, in any event, be a substantial resistance to any attempt to force a substantial increase in the generic tariff rate and this might well lead to a move to prescribe alternative ACE inhibitors and, in particular, Ramipril and Lisinopril. In the result, I conclude that if I do not grant the injunction sought, there is a very substantial risk that Servier will suffer severe damage through price erosion and that such damage is likely to continue long after trial, even if Servier prevail. Conversely, if I do not grant the injunction I accept that KRKA will suffer unquantifiable loss because it will not be possible to determine with any certainty the extent of sales they would have made pending trial and the price they would have achieved for those sales. However, it seems to me that the difficulty of assessing this loss and its extent are far outweighed by the potential damage to Servier. Mr. Korosec also points to a further element of unquantifiable loss which he says KRKA will suffer if I grant the injunction sought. He says that KRKA will be deprived of the benefit which flows from being first to market a generic version of an established drug. However, I accept the submission advanced by Servier that KRKA are only in this position because Apotex have themselves been injuncted. It seems to me that there is no justification for affording to KRKA an advantage which has been denied to Apotex. Finally, I think it is important to have regard to three further matters. First, Coversyl is, as I have indicated, crucial to Servier's business in the UK. Conversely, KRKA produce numerous different generic products and I accept the submission that there is no reason to believe that perindopril is particularly significant to their future business plans. Secondly, if, which I do not accept, other factors were evenly balanced, consideration of the status quo clearly leads to the conclusion that it is appropriate to grant an injunction. KRKA are not on the market with perindopril. If I grant the injunction sought, that position will be preserved for the few months pending trial. Finally, but importantly in all the circumstances of this case, I think it is right to note that the patent was granted in February 2004 and it is clear that KRKA have been prepared to launch their product in Europe for some time. Indeed, they must have made an application for marketing authorisation in Hungary some time before the launch of their product in December 2005. They have chosen to seek to revoke the Patent through opposition proceedings before the EPO. Those opposition proceedings have not as yet proved successful. I think it is clear that they could have launched proceedings in the UK for revocation of the Patent some time ago and so cleared the way for the marketing of their generic perindopril in the UK. But they chose not to do so. In all the circumstances, I have reached the conclusion that it is appropriate to grant to Servier the relief that they seek on this application. ……………

Lord Justice Thorpe: On the 25 November 2011 we allowed the appeal of three children intervening in the appellate proceedings between their parents, proceedings brought by the father for the return of the three children to Poland under the 1980 Hague Abduction Convention and Article 11 of Regulation Brussels 2 Revised. Given the utmost need for expedition we announced our conclusion with reasons to follow. On the face of it this is a paradigm case for a return order. The parents are Polish and married in Poland on 13 April 1996. Their son K was born on the 18 June 1996. Their second son JA was born on the 12 July 1998. Their third child, a daughter JU, was born on 24 March 2001. The parents separated in August 2005 and custody proceedings immediately followed in Poland. On 31 August 2006 the court in Zamosc effectively granted custody to the father with contact to the mother on alternate Saturdays. Subsequently the mother emigrated to this country where she has successfully established her habitual residence, employment, and a home which she shares with her current partner. Accordingly in September 2010 she applied for the variation of the contact order. A welfare report was prepared and on the 9 November 2010 the Zamosc court by consent ordered holiday contact three times a year, the travelling costs to be met by the mother. On 5 July 2011 the mother collected the children from the father's home for the three week summer holiday in England ordained by the Zamosc order. Thus the children were to return to their father on 26 July. On 25 July the mother issued an application to the Zamosc Court for custody and for the children's relocation to this jurisdiction. On the mother's failure to return the children on the 26 July the remedy provided by the Hague convention was swiftly invoked. The London central authority received the Polish request on 11 August 2011 and on the 17 August the first order was made requiring the mother to file her evidence by 2nd September. She complied and the first inter partes directions order was made by Charles J on 7 September. The second directions order was made by HHJ Coates on 28 September. To these two orders I will return. The trial was fixed for 11 October and came before Roderic Wood J. Effectively there was only one issue for trial. Although in her written statements the mother had raised two defences, Article 13b and the children's objections, the directions order of 28 September contained this recital:- "And upon the mother indicating to the court through counsel that the primary issue in this case is whether the children should be returned to Poland notwithstanding their stated objections…" The mother maintained this position at trial. Although the Article 13b defence was not abandoned it was hardly pursued. The statement of the children's objections was not only contained in the mother's statements but also in a written report from the children and family reporter filed at the second directions hearing. Her report was filed in compliance with directions given by Charles J on 7 September. I cite the relevant paragraphs in full:- "3. The CAFCASS High Court team is requested to make arrangements to interview the three children and to prepare a report setting out the children's views, any objection which any of them have to returning to Poland, their maturity and recommendations, in particular as to whether any of the children should be separately represented, by 4pm on 21 September 2011. The costs of the attendance of the children at interview shall be deemed a reasonable disbursement on the father's public funding certificate, and shall be reimbursed by the father's solicitor when met by the LSC. 4. The father's application for summary return of the children to Poland shall be listed for a further hearing at 10.30am on 28 September 2011 at the Royal Courts of Justice (with a time estimate of 30 minutes). At this hearing the Court will consider: i. Any application for any or all the children to be made parties to the proceedings and to be represented; and ii. Directions generally, including the approach to be taken to the mother's Article 13b defence." Plainly paragraph 4(ii) above explains the recital in the order of 28 September cited above. Ms Julian, in her report of her interview with the children did not overlook the Judge's request for recommendations on separate representation. Paragraph 92 of her report stated:- "Based on my reading of the court papers provided to me and my interviews with K, JA and JU, I am not convinced that joinder of the children as parties would sufficiently enhance the courts understanding of the issues so as to justify further delay and the inevitable expense. The children had made their views known to the court through interview with me and they are clearly detailed in this report. " However, perhaps surprisingly, the last sentence of paragraph 93 and the first sentence of 94 reads as follows:- "The children each expresses a strong wish to remain in England with their mother and particularly K who would 'fight' and not get on the plane. If the court determined the children should return to Poland K is 15.3 years of age and if he chose to, could seek his own legal advice and I would expect him to be considered competent to give instruction if he did." On the 11 October the trial took an unexpected turn when the mother sought to fortify her case on K's objections by recounting a conversation she had had with K, unrecorded in her statements and not mentioned in Mrs Julian's report. The Judge required that evidence to be given on oath. When she had had her say the Judge asked her whether she would not accompany the children and look after them in Poland until her outstanding application to the Zamosc court was decided. She said that she would, that she and the children could live with her mother who did not live in the same town as the father. This was undoubtedly surprising since it was not a possibility outlined in either of her statements. The Judge adjourned over night to enable Mr Anderson, who represented the father below, to obtain instructions on undertakings to ensure the mother's security on return and pending the decision of the Zamosc court. Conventional undertakings were proffered on the next day and the Judge delivered his judgment granting the application for return. If the Judge did not find that the children objected to return, then Article 12 required the return order. If he found that the children objected to return then he could nevertheless order a return in the exercise of the discretion conferred upon him by Article 13. It is by no means clear by which of these two routes the Judge arrived at the order for return. The relevant passages are as follows:- 57 How shall I approach the question of discretion assuming it arises? 58 I say 'assuming it arises' for the obvious reason that looking at what the children say and assessing its weight in the light of the objective evidence, I have real doubt that these objections are in fact made out overall. I nevertheless, if I am thought to be wrong about that, now consider whether or not to exercise my discretion in favour for or against a return. 60 I have therefore decided that, on balance, taking account of all the above factors, that even if the 'objections' are thought by others to be fully made out (which I have already clear I have real doubt about) I would exercise my discretion in favour a return. Perhaps not surprisingly in the light of what the children had said and the observations of Ms Julian in paragraph 94 of her report, the children found their way to Ms Hansen, a partner in the London firm of Freemans. She filed a statement to record her interview with the three children and applied for leave to intervene and for permission to appeal. I considered her papers at a time when a permission application from the mother was mooted but not yet filed. I directed an oral hearing on notice of any applications for permission with appeal to follow on 25 November. In the interim the mother's appellants notice was filed. We first heard Mr Gration advance the mother's application for permission which we refused for reasons which need not be here repeated. By contrast we granted the children's application for permission which had been articulated in amended grounds of appeal and a skeleton argument settled by Mr David Williams. Mr Williams submitted that he was entitled to succeed on two grounds. First that the Judge had fallen into serious error in not of his own motion ordering separate representation for the three mature and articulate children who so strongly objected to return. Alternatively the Judge should of his own motion have required a meeting with the children to gauge their true positions and particularly to involve them in the process. As Mr Williams put it, it was simply unacceptable for the Judge to impose on the children the return that they dreaded without engaging them in the process. Mr Williams second ground was that the Judge had failed to make a clear finding on what was effectively the primary issue in the case, namely did the children object to return. It was impermissible for the Judge to sit on the fence. If he had implicitly concluded that the asserted objections had not been made good then that was a finding not open to him on the evidence. If he had on the other hand implicitly concluded that the children did object then the subsequent exercise of discretion was fatally flawed since a proper exercise was dependent upon proper findings on the children's reported evidence. Mr Jarman, for the father in response, easily met the submissions as to separate representation. As to a meeting Mr Jarman emphasised that no one had suggested, and it could not be said, that the Judge was plainly wrong in failing to seek it of his own motion. Mr Jarman supported the Judge's conclusion. This was a paradigm case for a return order and the Judge had sufficiently explained how his discretion led him to a predicable outcome. Mr Williams in reply suggested that, since it was the Judge who, in inquisitorial mode, had asked the question that neither counsel had sought to put (thereby eliciting a much smoother after return), it was incumbent upon the Judge then to meet the children to explain to them the development and all its reassuring consequences. In my judgment Mr Williams succeeds on his second ground. The Judge's primary task was to make a clear finding on what was in effect the only issue in the case. Although he might have had a distaste for the mother's strategy, the evidence as to the nature and extent of the children's objections was certainly not scant or weak. A clear finding that the children's objection had not been made good would have been the end of case and presented the mother with a single and clear ground of appeal. Equally a proper exercise of the discretion would only be triggered and conducted by an unequivocal finding that the objections had been made good. Turning to Mr Williams first ground, in my judgment the submission that the Judge of his own motion should have joined the children as parties is unsustainable. I would not find it necessary to go to Rule 12 of the Family Procedure Rules 2010, given the care that Charles J took on 7 September to ensure that issue should be settled, if it were to be raised, on 28 September. It was not then raised and had it been raised by the mother's current counsel on 11 October it would have received short thrift. On that view the submission that the Judge should himself have ordered it is hopeless. However I am impressed by Mr Williams's submission that the Judge should of his own motion have engaged the children in the process. It is of course easy to form hindsight judgments. Were the developments which are before this court foreseeable? Certainly the concluding paragraphs of Mrs Julian's report should have alerted the Judge to the risk. Furthermore the flow of authority pointed towards a meeting. Sir Mark Potter when President in a number of reported cases emphasised the desirability of a face to face meeting between Judge and children in appropriate cases: See JPC v SLW and SMW (Abduction) [2007] 2FLR 900 and DeL v H [2010] 1FLR 1229. Also for the Judge's guidance there was the reported case of re G (Abduction:Children's Objections) [2011] 1FLR 1645. I only emphasise what I said at paragraph 15 of my judgment:- "There is, in this branch of international family law, a growing perception that the judge at trial should hear the voice of the child: that is implicit from the Hague Convention itself but made explicit by the United Nations Convention on the Rights of the Child 1989. Of course, the manner in which the judge hears the child is a matter for local custom and tradition. In this jurisdiction, judges in the High Court have not traditionally in modern times heard the voice of the child directly but through the officer of the court, the Cafcass officer. The tradition is now under scrutiny, debate and revision. The subcommittee of the Family Justice Council that is concerned to ensure the safeguarding of the rights of children has forcefully expressed the view that judges in this jurisdiction should be meeting children and hearing their voice in carefully arranged conditions; given the fact that E was seeking to communicate her views to the decision-maker, it is perhaps with hindsight a pity that His Honour Judge Barnett did not have the opportunity of meeting her and hearing from her own lips." I would also emphasise what I said at paragraph 21:- "Courts of trial and appellate courts have to consider the implementation of a judgment for return. A court needs to be alive to the difficulty of implementing a return order, where the subject of the return order is an articulate, naturally determined and courageous adolescent." As well as these authorities the Judge had the advantage of the President's Practice Note (guidelines for judges meeting children who are subject to family proceedings) of April 2010. That Practice Note is the product of the sub committee of the Family Justice Council to which I referred in paragraph of my judgment in Re G (see paragraph 34). Mr Williams submits that the words of the Practice Note can be construed to apply only to domestic proceedings and not to proceedings brought under international family instruments such as The Hague 1980 Convention. He further informs us that in his experience the Practice Note has changed nothing and that practitioners and judges seem not to refer to it, or apply it. I have a plain reaction to that. The Practice Note should be taken to apply to all proceedings in which the decision of the court will have a significant impact on the future life of the child. Further if the Practice Note has as yet had no effect that is matter of concern. Practice Guidance from the President is not, like most of today's news, safely forgotten tomorrow. Practitioners and judges have the responsibility to consider in what way and to what extent the Guidance applies during preparations for trial and at the trial itself. These children understandably felt themselves to be vulnerable and lost in a complex legal landscape. They needed to understand that the proceedings in this jurisdiction were brought under an international instrument and were essentially summary in character. They needed to understand that they were habitually resident in Poland and that accordingly the Polish court had primary jurisdiction under Article 8 of Brussels 2 Revised. They needed to understand that any profound investigation of their future would be determined by the paramount consideration of their welfare and that the task of assessing that was for the Polish Judge. They needed to understand that their mother had initiated that process during the course of the summer holiday. They needed to understand that a summary return order might be a transient order dependent on the outcome of the mother's application for custody and relocation. They needed to be informed of the fundamental shift in their mother's case elicited by the Judge's questions. Return orders in respect of a boy on the threshold of escape from the courts Convention jurisdiction and determined to fight enforcement need to be very carefully thought through by any trial judge. There are enough incidents in the report of the distress and general mayhem caused by the making of return orders that were foreseeably bound to provoke dramatic scenes. In these cases an option open to the Judge is a meeting at which practicalities, consequences and reassurances can be ventilated. The Judge sits above the family turmoil. The Judge's authority can be an influence for acceptance. Importantly a meeting gives the Judge an opportunity directly to assess where the return order will lead if enforcement will be resisted. Dramatic (and by no means unknown) scenes such as the pilot refusing to take off without the children disembarking or children barricading themselves and threatening suicide cause profound damage to the principal actors and a great deal of disturbance to others in the cast or in the wings. All these reflections reinforce the message that in the present case the Judge erred in not at least raising with the parties the need for him to meet the children face to face. Of course each case is fact dependent. Of course the trial judge has a very broad latitude. In my opinion the Judge erred in not reacting to recent guidance. Of course I recognise that he was entitled to draw inferences from the absence of any application from the mother. Had this been the only ground advanced by Mr Williams, I would not have allowed this appeal. However I would not lose the opportunity of emphasising the importance of judges engaging children in the process directly in cases where the indications were as strong as here. It is very regrettable that the case must be remitted. The Regulation itself imposes the duty of maximum expedition and the performance of that obligation inevitability means that applications under the Convention and Regulation must leapfrog other fixtures. Accordingly I would direct the remitted hearing be listed in the week commencing 5 December to ensure that, if that the return order stands, that the children will be in Poland for Christmas. I would further direct that the remitted hearing be conducted without further oral evidence. If there were any question as to proof of the children's objections on 11 October that question is dispelled by subsequent developments. Thus the Judge's single task is to exercise the discretion giving due weight to relevant factors. Those factors are already well covered in the written evidence and the position of the parties has been fully ventilated in submissions here and below. I doubt the need for any further written submissions. On the basis that the childrens' objections are proved the judge's need to see the children is self evidently reduced. Furthermore their need to be engaged in the process is currently met by their separate representation for the purpose of the appeal. Their solicitor and counsel must ensure that the children understand the judge's task at the next hearing. The respective function of the English and Polish courts should be clearly explained to them. They should understand that the future which their mother desires and which they support can not be achieved by unilateral wrongful act on the part of their mother. That future can only be achieved by the discretionary judgment of the Polish judge whose responsibility it is to investigate and decide all issues governed by their ultimate welfare. They should understand that the mother's application to the Polish court was issued during their summer holiday and that it may well be necessary for their mother to return to pursue her application and for them to return to enable the Polish court to have an expert report on their wishes and feelings and the wider welfare issues. Indeed the Polish judge may well wish to see the children himself. Such due preparation of the children within the appeal for the remitted hearing might reduce the need for the Judge to meet the children. However if the judge makes a return order it is very important that every effort be made to avoid disruption and distress in its implementation. The impartial and authoritative judge would, in my judgment, be the best person to communicate to the children his decision and the importance of swift and untroubled implementation. Given the restrictions which I consider must be imposed on the remitted hearing it should demand no more than a half day time estimate assuming that the Judge has an opportunity to prepare. In that regard counsel should agree an essential reading list sparingly drawn. Additional documents can always be introduced during oral submissions. We were not informed what stage the mother's application of 25 August has reached. I would in any event propose to communicate to the network judge in Warsaw the request that its trial be expedited. Information should be sought for the judge at the remitted hearing. Sir Mark Potter I agree. Lady Justice Hallett I also agree.

MR JUSTICE COLLINS: Although nominally included within the claim by Corner House Research, Campaign Against the Arms Trade v the Director of the Serious Fraud Office, these proceedings in reality have nothing directly to do with that claim. What is in issue before me is a claim for a declaration on behalf of three media concerns that they should have access in judicial review proceedings to an acknowledgment of service and to any detailed grounds for contesting the judicial review claim pursuant to rule 5.4C of the CPR. That deals with the supply of documents to a non-party from court records and was inserted into the rules by the Civil Procedure (Amendment) Rules 2006, itself amended by the Civil Procedure (Amendment) (No 2) Rules 2006. 5.4C(1) provides: "The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of— (a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it; (b) a judgment or order given or made in public (whether made at a hearing or without a hearing)." 1A, which was inserted by the (Amendment) (No 2) Rules, provides that that rule is not to be retrospective and has effect only in relation to claims filed after 2 October 2006. 5.4C goes on: 2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person. (3) A non-party may obtain a copy of a statement of case or judgment or order under paragraph (1) only if— (a) where there is one defendant, the defendant has filed an acknowledgment of service or a defence; ... [(b) deals with a situation where there is more than one defendant] (c) the claim has been listed for a hearing; or (d) judgment has been entered in the claim. (4) The court may, on the application of a party or of any person identified in a statement of case— (a) order that a non-party may not obtain a copy of that statement of case under paragraph (1); (b) restrict the persons or classes of persons who may obtain a copy of that statement of case; (c) order that persons or classes of persons may only obtain a copy of that statement of case if it is edited in accordance with the directions of the court; or (d) make such other order as it thinks fit. (5) A person wishing to apply for an order under paragraph (4) must file an application notice in accordance with Part 23." This power derived from applications made by the media that the rule as it existed before, which was effectively that there was no access without an order of the court save to a writ (or what took over from a writ) was wrong and contrary to principles of open justice. The explanatory memorandum to the Amendment Rules records the reason for the change in these terms: "7.3(a) During the course of litigation, parties are normally required to file at court a number of different documents relating to their case. People who are not a party to a case may have access to some of these documents. This facility is mostly used by members of the press. Late in 2005, the DCA received a number of representations from members of the press concerning statements of case (a particular category of document which sets out a party's case in full). The complaint was that courts were not allowing release of these documents, following a rule change in October 2005 which enabled release of statements of case with permission of the court. The general complaint was that non-release was contrary to the principle of open justice. Following consultation with the press and other interested parties, the new regime shown at rule 3 of the statutory instrument was agreed. This reverses the previous position, making the default position that statements of case will be released unless the court orders that they should not be. 90% of the consultees, including the press, some judiciary and other interested parties (such as professional associations) approved this scheme." The reference in 5.4C is to a statement of case. One has to go back to rule 2.3 to find the definition of statement of case, and by 2.3(1) one finds it is defined thus: "'statement of case'– (a) means a claim form, particulars of claim where these are not included in a claim form, defence Part 20 claim, or reply to defence; and (b) includes any further information given in relation to them voluntarily or by court order under rule 18.1..." Historically, that would appear to pick up the rules of the Supreme Court as applied to claims instituted by writ between parties. Thus, there is reference to the claim form, the defence, reply to defence, and (b) would be further and better particulars of claim, or of a defence. When the CPR first came into effect, they did not supersede all the old rules of the Supreme Court, and that still is the case. There are some of the old rules which still apply. When the CPR came into being, judicial review was dealt with by order 53 of the Rules of the Supreme Court, and that remained the position until what is now CPR 54 came into effect. The changes followed a review of the Crown Office under the Chairmanship of Sir Jeffrey Bowman. The report was submitted to the Lord Chancellor in March 2000. In effect, the changes recommended by Sir Jeffrey Bowman were put into effect. So far as is important for the purposes of this case, the Bowman Recommendations contained the following. First, in paragraphs 23 and 24 of their report they considered the defendant's response to a claim for judicial review, and in paragraph 24 said this: "If the defendant indicates that he intends to contest the claim, then he must, in his acknowledgment, also set out an outline of the grounds of defence. There are two reasons for this. Firstly, it requires the defendant to address his mind to the issues in the claim and his response. Secondly, his outline grounds of defence will assist the judge at the permission stage by providing a fuller understanding of the issues and arguments. We do not expect the defendant to incur substantial expense at this stage." They then went on to consider what the defendant should do in the form of putting documents before the court if permission were granted, and in paragraph 34 they said this: "We believe that the defendant should have 35 days from the receipt of the notification from the claimant that the fee has been paid to lodge and serve evidence and detailed grounds of defence on all other parties." They then went on to say that that was a reduction of the 56 days currently available, but they thought that it was a justifiable reduction of time. It is of some significance that the Bowman Report refers to what the defendant has to do both in the acknowledgment of service and in the detailed grounds as grounds of defence, and indeed on any sensible view of the English language, that is indeed what they are. Unfortunately, the situation is not quite as simple as that because regrettably the way that the CPR is set out has not entirely taken into account the different procedures that applied in the Administrative Court, and have not sometimes properly considered, it would seem, whether provisions which are supposed to have general application can have that application to the procedures of the Administrative Court. It is also of course important to note that the purpose of judicial review is, as its name indicates, for the court to review a decision of a public body, and so it is not quite the same as a dispute between individuals as to some matter with which they have individual concern, but is of no direct concern to others than those individuals. What effectively Mr Clarke submits is that, if one looks at the language of the rules, and in particular the definition of "statement of case" in 2.3(1), it is apparent that the Rules Committee, and so the rules, were intending to focus on private law claims, and the wording which is clearly on the face of it restrictive is not apt to include the acknowledgment of service or the detailed grounds to contest because those are not defences within the meaning of 2.3(1). Indeed, he makes the point that, in Part 54, the wording did not follow the Bowman Recommendations in that the word "defence" was not included. So we see in 54.8, which deals with acknowledgment of service, 54.8(4) provides: "The acknowledgment of service – (a) must – (i) where the person filing it intends to contest the claim, set out a summary of his grounds for doing so ..." So far as the detailed grounds are concerned, in 54.14 it is provided that: "A defendant and any other person served with the claim form who wishes to contest the claim or support it on additional grounds must file and serve– (a) detailed grounds for contesting the claim or supporting it on additional grounds ..." It is to be noted that 54.1(2)(e) provides that the judicial review procedure means the Part 8 procedure as modified by this section. So one looks to see initially what Part 8 provides in this context. That is the successor to what used to be an originating application, and is most appropriately used where the court is being asked to construe a document of one sort or another, and there is no dispute as to the evidence which is material. It is not limited to such cases, but those are cases in which it is more regularly used. Indeed, 8.1(2) specifically provides: "A claimant may use the Part 8 procedure where – (a) he seeks the court's decision on a question which is unlikely to involve a substantial dispute of fact; ... (6) A rule or practice direction may, in relation to a specified type of proceedings – (a) require or permit the use of the Part 8 procedure; and (b) disapply or modify any of the rules set out in this Part as they apply to those proceedings." I suppose Part 54 might be said to come within paragraph 6, although of course it has its own procedure. Part of the Part 8 procedure provides for there to be an acknowledgment of service. It does not in terms require there to be included in the acknowledgment of service grounds for contesting the claim, but merely requires a statement that he does contest the claim, and if he seeks a different remedy, what that remedy is. However, there is no reason why a defendant should not in his acknowledgment of service set out what his case is, and frequently that is what happens. It is to be noted that by Part 22.1, it is provided as follows: "(1) The following documents must be verified by a statement of truth – (a) a statement of case; ... (d) an acknowledgment of service in a claim begun by way of the Part 8 procedure ..." I am bound to say that it is difficult to see the point of a statement of truth in support of an acknowledgment of service which says no more than there is an intention to contest the claim. But the reality is that that recognises that most acknowledgments of service will indeed go further than that and will contain the party's case, although I suppose it is possible that the statement of truth will contain what in reality is the case of the defendant even though the acknowledgment of service contains no more than a bare indication that it is being contested. However, in their wisdom, the Rules Committee and the rules have provided that that is the way in which Part 8 claims should be dealt with. It is to be noted, and this is in my view a most important distinction, that in Part 8 there is no requirement for the acknowledgment of service to contain any more than the bare denial. In Part 54, as I have already indicated, there is a requirement that both the acknowledgment of service, and later the detailed grounds, should descend to greater particularity: summary only in the acknowledgment of service; detailed once permission has been granted. It is accepted by Mr Clarke, and indeed it would be difficult for him to make any contrary submissions, that the claim form in judicial review proceedings is within 5.4C. It clearly is within the definition of what amounts to a statement of case, and it would be in those circumstances to do unacceptable violence to the language if the court were to decide that a claim form was not a claim form because it was either within Part 8 or within Part 54. That produces the situation that a third party will have access to the claim form and will know what is being submitted by the claimant. But if the contention of Mr Clarke on behalf of the Ministry of Justice is right, he will not have access to the defendant's case on what on any sensible view amounts to his defence. "Defence" was the word used by Bowman. Although it is not specifically used in the rules, it is clear that what is in issue is indeed a defence to the claim. Mr Clarke submits that it is not the same as in a private law case where one has pleadings, and an acknowledgment of service is merely to be regarded as an indication by the defendant to a court why permission should not be granted or, if permission is granted, why it should not review the decision which is in issue. That is a different form of proceedings, it is suggested, to private law proceedings between two private individuals. It is difficult, in my judgment, to see any conceivable justification for the distinction that is sought to be drawn. There is no logic in it. It was suggested by Mr Clarke, certainly in his written submissions in his skeleton argument, that there were reasons why the restriction should apply in public law cases because there was not the same need. Indeed, it was suggested that there should be a requirement that the court give permission in a case dealing with public bodies and public law claims. It seems to me that it is really the other way round: the whole purpose behind the change in the rules to give access by third parties to the statements of claim and defences was in the interests of public justice to enable the media, and any member of the public, to be able to see how the courts were operating and to ensure that the public could look at and see why claims have been brought; why they have been rejected; why they were being allowed to proceed. It seems to me that it is, if anything, more important that there be public access to judicial review claims. They are the more likely to be matters of genuine public concern than litigation between individuals, however much some of the public or some of the media may like to report such claims. I have been referred to the approach that should be adopted in construing the rules. It is submitted by Mr Nicol that it is apparent from various authorities and from Lord Woolf's report which led to the CPR that a purposive approach should be adopted, and that it was not right for the court, when faced with a contention relating to the construction of rules, to adopt a technical and restrictive approach to the language. In YD v Secretary of State for the Home Department [2006] 1 WLR 1646, the Court of Appeal, through Brooke LJ (and I note incidentally Moore-Bick LJ who is now the Chairman of the Rules Committee was a member of that court) said this in paragraph 22: "Concern has been expressed in some quarters to the effect that the court should be slow to enlarge the boundaries of its inherent jurisdiction and that it should now leave it to Parliament or the Rules Committee to introduce any innovative changes: see, for instance, the article by MS Dockray, 'The Inherent Jurisdiction to Regulate Civil Proceedings' (1997) 113 LQR 120. In my judgment, the enactment of the Civil Procedure Act 1997 and the introduction of the Civil Procedure Rules 1998 have changed the landscape. Recent history has shown the beneficent effect of the judges initiating innovative ways of regulating procedure, followed swiftly by the Rules Committee codifying or extending the new procedures the judges have introduced. CPR r 52.17 (which codifies Taylor v Lawrence [2003] QB 528) and CPR r 3.11 and the Practice Direction supplementing that rule (which codify and extend Bhamjee v Forsdick (Practice Note) [2004] 1 WLR 88) are good examples of desirable changes which would never have been made, or not made so swiftly, if the judges had not been ready to take the lead." So in addition to the purposive approach, it is, in my judgment, following that guidance, correct for the court, if persuaded that a particular construction is appropriate, to apply it. This is material because Mr Clarke submits that it is not for me to decide, contrary to what he submits is the primary meaning of "statement of case" within 2.3(1), that it extends to cover the situation here. That is a matter that should be left to the Rules Committee. Indeed, the issue was before the Rules Committee last year. I have before me minutes of the Committee meeting on 16 February 2007. The minutes record in relation to this point that there was a discussion on the extent of possible interpretation of defence within the list of documents defined as a statement of case within rule 2.3. The general consensus was that under the current rules the definition did not include the response to a judicial review claim. However, the Master of the Rolls suggested that an alternative purposive interpretation could include a number of analogous documents, including a response to a judicial review claim. It was noted, however, that it could not include an acknowledgment of service as this merely stated the intention to defend and did not comply with the requirements in Parts 15 and 16. With great respect to the Committee, that is plainly wrong because an acknowledgment of service in Part 54 goes further than merely stating an intention to defend since it requires a summary of the grounds upon which the claim is contested to be included. The matter was raised again in a later meeting in April, and this resulted in a decision that the matter could be dealt with by guidance issued to the court staff by the Ministry of Justice, and that guidance states: "(1) The control of access to court documents is an important issue as it involves complex policy issues, eg open justice and data protection. Rules of court are contained in Part 5 of the Civil Procedure Rules and the supporting Practice Direction. This guidance which sets out the procedures to be followed by court staff is consistent with the provisions of the rules and practice." Then dealing with non-party applications, this is said: "(4) If the request from a non-party is to obtain a copy from the court file of a document filed on or after 2 October 2006, 5.4C will apply." It sets out the provisions of 5.4C. Then in (6) it says: "Documents not listed above are not statements of case and are therefore not to be disclosed without the permission of the court: for example acknowledgment of service, applications and responses under Part 23, and appellant's notice and any response under Part 52, or the response to a judicial review." So the approach by the Ministry, and so the response of the court staff, has been to refuse disclosure of acknowledgments of service and of detailed grounds to contest the claim because they are not within 2.3. The question therefore turns on whether, in using the word "defence" in 2.3(1), the rules must be construed as excluding other than what is set out in Part 15, namely what amounts to a formal defence within that rule. It is to be noted that "statement of case" is dealt with in Part 16 and that states, as does Part 15, that it does not apply where the claimant uses the procedure set out in Part 8. On one view, if one adopts a technical reading of the rules, one could say that because 16.1 deals with statements of case and excludes Part 8, a claim in Part 8 is not included within the meaning of 2.3(1). That is not a submission which Mr Clarke has felt able to make, and I am not in the least surprised, but it does show the dangers of applying a restrictive and technical approach, because if one does that one could well exclude anything within Part 8, and by analogy anything within Part 54, which itself applies Part 8, from the scope of any access at all. That would be, to say the least, a strange result of a decision which was made in the interests of open justice. But once it is accepted that a claim form under Part 8 and under Part 54 is to be included, it becomes impossible to justify the exclusion of the equivalent of a defence under those Parts. I am not in this decision specifically concerned to deal with acknowledgments of service under Part 8 between private individuals, and nothing I say need be taken as a final decision in relation to that. But I am concerned to deal with the situation under Part 54 in the knowledge that the rules require that what is set out in the acknowledgment of service and in the detailed grounds is what amounts in effect to a defence. If therefore it is right, notwithstanding the provisions of 16.1, which disapplies Part 8 in relation to what are broadly described as statements of case, then as it seems to me a sensible construction -- if you like a purposive construction -- inevitably brings in the equivalent of a defence. This is not, in my view, to extend the meaning of the word "defence" beyond the meaning that it can properly bear. It is not doing more than indicating that "defence" as used there is not a word which should be given a technical meaning -- a technical meaning being only if within Part 15. One might as well argue that "statement of case" must be given a technical meaning, that is to say a meaning only if within Part 16 because the same principle applies to Part 16 and to Part 15, namely an exclusion of Part 8. It seems to me in those circumstances it does not do violence to the language of the rule to take the view that "defence" includes the judicial review equivalent to a defence. In those circumstances, I am satisfied that the correct meaning of 5.4C is that there is a right to have sight of not only a claim form, but also an acknowledgment of service and detailed grounds. It does not extend to any documents that are annexed to either the acknowledgment of service or the detailed grounds; it merely includes the grounds themselves as set out in either document. That is in conformity with what is allowed by 5.4C. If more is sought, then an application will have to be made under 5.4C(4). It is necessary to add two riders. First, it is of course open to a defendant, as indeed it is to a claimant, to include, either in the claim or any acknowledgment of service, a request that for whatever reason there should not be a disclosure of the whole or part. It may be, for example in a case involving mental health or children or other sensitive matters, that there should be no disclosure unless the court approves it. It will be necessary hereafter for a defendant to make that positive application. It need not be done by means of a formal application in the sense that there has to be a specific application for which payment has to be made; it suffices if, at the same time as the acknowledgment of service, there is served a document requesting it and giving reason for requesting any embargo upon disclosure without a court order. The second rider is that there has been concern expressed that this will have possible retrospective effect to 2 October 2006. Indeed, it will to that extent, because this is a declaration that the law has always been as I have said that it is. It seems to me that there is a practical way of dealing with that. If an application is made in respect of any acknowledgment of service or detailed grounds for contesting which were lodged before publicity is given to this judgment and the need for a specific application to be made, the defendant should have the opportunity to raise any objections to disclosure. This is because the general view indicated to defendants hitherto through the Rules Committee has been that the acknowledgment of service and detailed grounds are not included amongst documentation to which automatic access would normally be obtained. It may be that had a defendant in a particular case appreciated that that would be the position, he might have made an application that there should be an embargo on automatic disclosure, and that if disclosure was to be made, there should be an application. What should be done, and indeed I will ensure as the lead judge of this court that the court office is so instructed, is that in respect of any application dealing with access to an acknowledgment of service or detailed grounds served before this judgment is made public, in the sense that people know what the position is, the court will notify the defendant and the claimant that whoever seeks access should, if possible, indicate that that access is going to be sought so the party knows what is coming and the defendant will have seven days within which to raise any objections, and the matter can then, if necessary, be considered by the court. That will preserve the position in relation to claims made between 2 October 2006 and this decision. I should add too that there are some obvious anomalies in the way that the rules apply if Mr Clarke is right. It is to be noted that by 5.4C(3) a non-party can only obtain a copy of the statement of case if the defendant has filed an acknowledgment of service or a defence. That means in the context of judicial review that, since it is possible for a claim to be allowed to go ahead without an acknowledgment of service being lodged, there could be no access, on the face of it, to the claim form at that stage. That seems to be something of an anomaly, and it is difficult to follow what is the purpose behind that limitation. It is no good saying: once the case goes ahead, there will in due course be access, because no access can exist until either the claim has been listed for a hearing or judgment has been entered, and that may be some weeks -- sadly, having regard to the pressures on this court, sometimes some months -- after the claim has been entered. Similarly, if permission is refused, and as often is the case and indeed was the case in the instant claim (that is the Corner House claim), the judge refusing permission refers to and relies on as his reasons the arguments set out in the acknowledgment of service, it becomes quite impossible for the public to know precisely why the decision was reached to refuse permission. It seems to me that it is wrong that they should be required to make a specific application (which costs money because the court demands a fee to make such an application, which I am told at the moment is £50) -- not much for a newspaper but perhaps quite a lot for an ordinary member of the public who has an interest in it. There is too the added time spent in preparing for and making such an application and finding out whether it is opposed and so on. There is always the prospect that if it is opposed there may be the need to have a contested hearing before the court. It seems to me that it is only right that the matter should be put, as it were, the other way around, namely that there should be disclosure in such circumstances unless there is good reason to say that there should not be, and the defendant in question should raise, if he wishes, such a reason in order to resist a claim. In those circumstances, I have no hesitation in deciding that there should be such access as the claimant submits is appropriate. Now, Mr Nicol, in those circumstances, what remedy? In a sense, the judgment speaks for itself. MR NICOL: My Lord, it does, but I would ask that your Lordship make the formal declaration that I indicated when I made my opening, and that was the adapted form from our application notice. If your Lordship is content, I will draw up a minute of order and if Mr Clarke agrees it -- MR JUSTICE COLLINS: Mr Clarke, do you have any objection to that? I think it follows from what I have said. MR CLARKE: That covers our point about evidence and so forth because my learned friend's adjustment for the wording covers that point. MR JUSTICE COLLINS: And I think it is in accordance with what I have said. Mr Nicol, that is fine, if you would be good enough to draft the necessary -- MR NICOL: My Lord, I will do that. Can I take it that the matters that your Lordship referred to, as it were, by way of rider towards the end of his judgment are sufficiently catered for by being included in the judgment with such instructions as your Lordship gives to the office? MR JUSTICE COLLINS: I think so. MR NICOL: I would not have thought that it was necessary for that to be included in the order. MR JUSTICE COLLINS: I think that is a matter for the internal court process, as it were, to deal with. MR NICOL: My Lord, there are just two other matters. The first is that it would seem to us to follow from your Lordship's judgment, the matter now having been resolved, that the Ministry of Justice ought to withdraw the guidance that your Lordship referred to. MR JUSTICE COLLINS: Yes, that follows. MR CLARKE: That needs to be changed. MR JUSTICE COLLINS: What I think would be sensible for me to do perhaps is to give, say, 14 days to enable you to sort out and change the guidance, the court to be informed, the public to be informed so that the matter can be put on a proper basis. MR NICOL: So that the interim measures that your Lordship referred to, I think in his second rider, would extend for acknowledgments of service or detailed grounds that were filed between 2 October 2006 and 14 days from today. MR JUSTICE COLLINS: I think that would be sensible, do you not, because I think it is essential -- MR NICOL: It makes clarity. MR JUSTICE COLLINS: Exactly, and it gives time for the matter to be publicised, as it were, because after all it is not only central Government, it is all public bodies who are going to be faced with what to some may seem a new regime. MR NICOL: My Lord, I am content with that. The only other matter is the question of costs. I am instructed to make an application for costs to be summarily assessed. A schedule has been prepared. I do not know if it has reached my learned friend. MR JUSTICE COLLINS: I do not think I have seen it. MR CLARKE: My Lord, that reached me just before we came to court this afternoon, so it is late. MR JUSTICE COLLINS: What do you say about costs in principle? MR CLARKE: In principle I say there should be no order as to costs. MR JUSTICE COLLINS: I was wondering about that. MR CLARKE: This is not really a contention between the parties. We have had to ventilate a matter of some public importance given a slightly unsatisfactory state in the drafting of the rules. MR JUSTICE COLLINS: I think it is the sort of situation where, if the Ministry had not opposed, it would have been right, particularly in the light of the Rules Committee's approach, for me to have requested an advocate -- I am not allowed to say amicus now -- to raise any points against. MR CLARKE: You may recall, my Lord, when this matter was first ventilated before you last July, it was your suggestion that, first of all, the defendant in the substantive proceedings have an opportunity to make comments. That went by the board. But, more significantly, you directed that the Ministry of Justice be informed of the application and invited to make representations, and effectively we have performed the function of an amicus, to use a forbidden word, in having the matter debated to resolve the question of what is in the public interest here. So I would suggest it is not an appropriate case for costs to be ordered against the Ministry. MR NICOL: Well, my Lord, it is the nature of judicial review proceedings that they do often become a debate about the interpretation of legislation. That is what has always been. My clients have incurred costs in establishing that their interpretation of the rules is the correct one. It has not been a question about what is in the public interest; it is what the rules mean. MR JUSTICE COLLINS: I know, but as I have said, Mr Nicol, this is not a matter which is entirely straightforward, and I have to bear in mind that the view I have expressed is apparently not the view formed by certainly the majority of the Rules Committee. As I said earlier, I think the Master of the Rolls dubitante -- MR NICOL: My Lord, again, it is not a condition of receiving one's costs that one has won a clear case. Often these cases are not -- MR JUSTICE COLLINS: No, it is a question of status. As you know, Mr Nicol, it is not the practice of this court normally to award costs, for example, against a court or a Tribunal whose decision is in issue. I appreciate that frequently the Tribunal does not attend and it is the interested party, who is the CPS or the Home Office or however it may be in relation to that body. Nonetheless, there is certainly a principle which seems to have been applied quite regularly that those sorts of bodies do not normally pay costs unless there is a good reason to make a different order. MR NICOL: Of course normally, my Lord, in those cases, the Tribunal or magistrates or whoever it is either take no part in the proceedings or sometimes set out a chronology and history of what has happened in written observations for the court, and then are quite prepared to leave it to the court to decide whether or not they have erred in law. I mean absolutely no criticism of my learned friend's clients, but this is a more common feature of judicial review litigation where the two sides have advanced opposing views as to what the legislation means. One side has been successful and one has not, and the normal rule prevails. MR JUSTICE COLLINS: I follow that as a matter of principle. On the other hand, as I say, I think the situation here is a little different. I mean, yes, your clients have won in the sense that they have obtained from me a decision which gives them the access they wanted for future and actually it will save them quite lot of money in the future because they will not have to make applications and they will not have to spend time and money dealing with that. Maybe I can take that into account. MR NICOL: Well, my Lord, I think that would not be right, with great respect, that the consequences of a favourable decision for a claimant may run from nothing to many millions of pounds, but that is not the issue as to whether costs should be awarded. MR JUSTICE COLLINS: You are probably right. MR NICOL: My Lord, I do not think I can say further. We have won and we ought to get our costs. It is a straightforward issue, but it is in your Lordship's hands. MR CLARKE: My Lord, what we are doing here is ventilating arguments which are important arguments about what the rules mean, what effect they have. If it had not been the Ministry of Justice, as my Lord observes, you would have called probably for assistance to someone appointed by the Attorney General so it becomes the same thing. It is not really a case where one party has scored a win against another and deserves costs. MR JUSTICE COLLINS: They have beaten the system. I have an application for costs by the media organisations, if I may call them such, who have pursued this application on the basis that they have succeeded against the resistance of the Ministry of Justice. One can see that that, on the face of it, may well be thought to justify the award of costs which normally of course follow the event. However, as I have indicated, in the circumstances of this case, it was a question of construing the rules in the face of an indication from the Rules Committee, who considered the issue, and the decision which I have reached is one with which they did not agree. It was not a straightforward matter, and it was necessary, in my judgment, for there to be an argument put on the other side. The Ministry of Justice was, on the face of it, the appropriate party to put that argument, and indeed I so suggested when I indicated last summer that it would in my view be right for the Ministry to be served. If there had been no appearance on behalf of the Ministry, I am quite satisfied that I would have asked the Attorney General to appoint counsel in order that the court should have the benefit of the necessary argument. It is always difficult in this sort of situation because I can see the force of the suggestion that the media organisations should, having been put to the need to take these proceedings, and having succeeded, receive their costs. One does have to take a rather broad brush approach on issues of costs in these cases, and for the reasons I have indicated, namely that the position of the Ministry is more akin to that of an amicus, or whatever one calls him now, as opposed to a party to litigation, I think the appropriate order in these circumstances is that there should be no order for costs. MR CLARKE: My Lord, I am grateful. I am instructed to ask for permission to appeal. My Lord, as your Lordship has said, it is not a straightforward matter; it is a matter of some importance. When one looks at the Rules Committee in February of last year, four High Court Judges with the Master of the Rolls doubted -- MR JUSTICE COLLINS: They did not have the argument that I had the benefit of. MR CLARKE: They did not have the argument (inaudible) judicially when they are sitting on the rule-making Committee. But, my Lord, we would say that there is enough in this for the matter to be worthy of permission. MR JUSTICE COLLINS: Mr Clarke, let me make one thing clear, if you were to think in terms of an appeal, I would be very surprised if the Court of Appeal took the view that you should have the benefit of no order for costs if you lose. MR CLARKE: That is something my clients would have to consider. MR JUSTICE COLLINS: In my view, you would be at risk as to costs if you pursued this matter further. What do you say about permission? MR NICOL: Well, your Lordship reached a firm view. You heard the debate and you came to a firm conclusion. In my submission, notwithstanding the views of the Rules Committee without the benefit of that debate, your Lordship should simply say there is no prospect of this appeal succeeding and refuse permission. MR JUSTICE COLLINS: You could not think, Mr Clarke, of any good argument to show that, as a matter of policy or logic, there was good reason to approach this in the way that it had been approached. You relied on what you said was the technical meaning of the rules. It seems to me difficult in those circumstances to see how you could conceivably justify a decision to appeal. You have a decision which accords with commonsense and accords with justice; why not leave it there? MR CLARKE: My Lord, I am simply indicating what my instructions are. MR JUSTICE COLLINS: Well, I am not going to give you permission. If you want to pursue this matter, you will have to go to the Court of Appeal. I have taken a very firm view, and it seems to me that there is, for the reasons I have indicated, no merit in taking the matter further. I have to fill in this form. (pause) What I have said is: "See transcript, in particular the MOJ recognise that there was no logic in the position they were seeking to maintain and were relying only on a technical meaning of the rule. In those circumstances, there is in my view no reason to grant permission." Thank you.

ORIGINAL JURISDICTION Petition Nos. 81, 62, 63 3 of 1959. Petition under Art. 32 of the Constitution of India for enforcement of Fundamental rights. M. Munshi, N. C. Chatterjee, L. R. Das Gupta, G. K. Munshi, D. N. Mukherjee and R. Gopalakrishnan, for the petitioners. K. Daphtary, Solicitor-General of India, H. N. Sanyal, Additional Solicitor-General of India, B. R. L. Iyengar, R. Dhebar and T. M. Sen, for respondents Nos. 1 to 10 in Petn. No. 81 of 59 , Nos. 1 to 3 in Petn. No. 62 of 59 , No. 1 in Petns. Nos. 63 and 3 of 59 and Nos. 2 and 3 in Petn. No. 3 of 59 . N. Dikshit and C. P. Lal, for respondent No. 11 in Petn. No. 81 of 59 and No. 2 in Petn. No. 63 of 59 . Gopalakrishnan, for the intervener. 1959. December 18. The Judgment of the companyrt was delivered by KAPUR, J.-These petitions under Art. 32 of the Constitution raise the question of the companystitutionality of the Drug and Magic Remedies Objectionable Advertisement Act XXI of 1954 hereinafter referred to as the Act. As the petitions raise a companymon question of law they may companyveniently be disposed of by one judgment. The allegation of the petitioners was that various actions had been taken against them by the respond which violated their fundamental rights under Art. 19 1 a and 19 1 f g . They also challenged the Act because it companytrvened the provisions of Art. 14 and Arts. 21 and 31. The Act passed on April 30, 1954, came into force on April 1, 1955, along with the rules made thereunder. As provided in its preamble it was An Act to companytrol the advertisement of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters companynected therewith. The petitioners in Writ Petition No. 81 of 1959, the Hamdard Dawakhana Wakf and another, alleged that soon after the Act came into force they experienced difficulty in the matter of publicity for their products and various objections were raised by the authorities in regard to their advertisements. On December 4, 1958, the Drugs Controller, Delhi, intimated to the petitioners that the provisions of s. 3 of the Act had been companytravened by them and called upon them to recall their products sent to Bombay and other States. As a result of this, companyrespondence ensued between the petitioners and the authorities. On December 4, 1958, the Drugs Controller, Delhi State, stopped the sale of forty of their products set out in the petition. Subsequently, objection was taken by the Drugs Controller to the advertisements in regard to other drugs. Similarly objections were taken by the Drugs Controllers of other States to various advertisements in regard to medicines and drugs prepared by the petitioners. They submitted that the various advertisements which had been objected to were prepared in accordance with the Unani system and the drugs bore Unani numberenclature which had been recognised in the whole world for several centuries past. The Act is assailed on the ground of discrimination under Art. 14, excessive delegation and infringement of the right of free speech under Art. 19 1 a and their right to carry on trade and business under Art. 19 1 f g . Objection is also taken under Arts. 21 and 31. The petitioners therefore prayed for a declaration that the Act and the Rules made there under were ultra vires and void as violative of Part III of the Constitution and for the issuing of a writ of Mandamus and Prohibition and for quashing the proceedings and the numberices issued by the various authorities-the respondents. In their companynter affidavit the respondents submitted that the method and manner of advertisement of drugs by the petitioners and others clearly indicated the necessity of having an Act like the impugned Act and its rigorous enforcement. The allegations in regard to discrimination and impairment of fundamental rights under Art. 19 1 a , f g and any infringement of Arts. 21 and 31 were denied and it was stated - The restriction is about the advertisement to the people in general. I say that the main object and purpose of the Act is to prevent people from self medicating with regard to various serious diseases. Self-medication in respect of diseases of serious nature mentioned in the Act and the Rules has a deleterious effect on the health of the companymunity and is likely to affect the well-being of the people. Having thus found that some medicines have tendency to induce people to resort to self-medication by reason of elated advertisements, it was thought necessary in the interest of public health that the puffing up of the advertisements is put to a companyplete check and that the manufacturers are companypelled to route their products through recognised sources so that the products of these manufacturer companyld be put to valid and proper test and companysideration by expert agencies. It was also pleaded that the advertisements were of an objectionable character and taking into companysideration the mode and method of advertising companyducted by the petitioners the implementation of the provisions of the impugned Act was justified. Along with their companynter-affidavit the respondents have placed on record Ext.-A, which is a companyy of the literature which accompanied one of the various medicines put on sale by the petitioners and or was stated on the cartons in which the medicine was companytained. In their affidavit in rejoinder the petitioners reiterated that Unani and Ayurvedic systems had been discriminated against that self-medication had numberdeleterious effect on the health of the companymunity on the companytrary itis likely to affect the well-being of the people, in the companytext of effective household and domestic remedies based on local herbs popularly known to them in rural areas. Self-medication has its permission ? limits even in America and Canada where unlicensed itinerant vendors serve the people effectively. For the petitioners in all the petitions Mr. Munshi raised four points Advertisement is a vehicle by means of which freedom of speech guaranteed under Art. 19 1 a is exercised and the restrictions which are imposed by the Act are such that they are number companyered by cl. 2 of Art. 19 That Act, the Rules made thereunder and the schedule in the rules impose arbitrary and excessive restrictions on the rights guaranteed to the petitioners by Art. 19 1 f g Section 3 of the Act surrenders unguided and uncanalised power to the executive to add to the diseases enumerated in s. 3 Power of companyfiscation under s. 8 of the Act is violative of the rights under Arts. 21 and 31 of the Constitution. In Petitions Nos. 62 and 63 of 1939 which relate to two branches of Sadhana Ausadhalaya at Poona and Allahabad respectively, Mr. N. C. Chatterjee, after giving the peculiar facts of those petitions and the fact that the petitioners Poona branch was raided without a warrant, a number of medicines had been seized, and a companyplaint filed against the petitioners in that petition, submitted that s. 3 b of the Act was meant to strike down abnormal sexual activities, that advertisements in that case merely mentioned the names of the diseases and suggested the drug for the treatment of those diseases, that the prohibition of such advertisements was an unreasonable restriction on their fundamental right that there was numberhing indecent in saying that their medicine was a cure for a particular disease and that the Act was an undue interference with cure and treatment of diseases. We number proceed to companysider the vitality of the arguments raised on behalf of the petitioners. Firstly it was submitted that the restriction on advertisements was a direct abridgement of the right of free speech and advertisements companyld number be brought out of the guaranteed freedom under Art. 19 1 a because numberdividing line companyld be drawn and freedom of speech companyld number be curtailed by making it subject to any other activity. The learned Solicitor-General on the otherhand, companytended that it was necessary to examine the pith and substance of the impugned Act and if it was properly companysidered it companyld number be said to have in any way curtailed, abridged or impaired the rights guaranteed to the petitioners under Art, 19 1 a . He also companytended that the prohibited advertisements did number fall within the companynotation of freedom of speech . The doctrine of pith and substance,, submitted Mr. Munshi, was created for the purpose of determining the legislative companypetence of a legislature to enact a law and he sought to get support from the following observation of Venkatarama Aiyar, J., in A. S. Krishna v. State of Madras 1 - and the Privy Council had time and again to pass on the companystitutionality of laws made by the Dominion and Provincial legislatures. It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires regard must be had to its pith and substance. Though the doctrine of pith and substance was evolved to determine the companystitutionality of an enactment in reference to the legislative companypetence of a legislature particularly under a federal companystitution with a distributive system of powers it has been used in other companytexts in some cases, e.g., in companynection 1 1957 S.C.R. 399,406,410. with the determination of the companystitutionality of statutes restricting the rights to carry on certain activities and the companysequent infringement of Art. 19 1 g by Mahajan, C.J., in Cooverjee B. Bharucha v. The Excise Commissioner The Chief Commissioner of Ajmer 1 in the case of Excise Regulation of 1915 regulating the import, export, transport, manufacture, sale and possession of intoxicating drugs and liquor and imposing duties thereon by Das, C.J., in State of Bombay v. R. M. D. Chamarbughwala 2 in companynection with a statute which was held number to be interference with trade, companymerce or intercourse as such but to save it from anti-social activities. It is unnecessary to decide in the present case whether in its scope it extends to the determination of the companystitutionality of an enactment with reference to the various sub-clauses of cl. 1 of Art. 19. A more appropriate approach to the question is, in our opinion, companytained in the dictum of Mahajan, J. as he then was in M s. Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh 3 . There he held that in order to decide whether a particular legislative measure companytravenes any of the provisions of Part III of the Constitution it is necessary to examine with some strictness the substance of the legislation in order to decide what the legislature has really done. Of companyrse the legislature cannot bypass such companystitutional prohibition by employing indirect methods and therefore the Court has to look behind the form and appearance to discover the true character and nature of the legislation. Therefore, when the companystitutionality of an enactment is- ,challenged on the ground of violation of any of the articles in Part 111 of the Constitution, the ascertainment of its true nature and character becomes necessary, i.e., its subject matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into companysideration all the factors such as history of the legislation, the purpose thereof, the 1 1954 S.C.R. 873, 877. 2 1957 S.C.R. 874. 3 1954 S.C.R. 674, 682. surrounding circumstances and companyditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy Bengal Immunity Company Ltd. v. The State of Bihar 1 R.M.D. Chamarbaughwala v. The Union of India 2 Mahant Moti Das Ors. v. S. P. Sahi 3 . Another principle which has to borne in mind in examining the companystitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they companysider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the companystitutionality of an enactment. Charanjit Lal Chowdhuri v. The Union of India Ors. 4 The State of Bombay v. F.N. Bulsara 5 Mahant Moti Das v. S. P. Sahi 3 . What then was the history behind the impugned legislation and what was the material before the Parliament upon which it set to enact the impugned Act. In 1927 a resolution was adopted by then Council of State recommending to the Central and Provincial Governments to take immediate measures to companytrol the indiscriminate use of medical drugs and for standardisation of the preparation and for the sale of such drugs. In August 1930, in response to the public opinion on the subject and in pursuance of that resolution the Government of India appointed the Drugs Enquiry Committee with Sir R. N. Chopra as its Chairman to enquire into the extent of the quality and strength of drugs imported, manufactured or sold in India and to recommend steps for companytrolling such imports, manufacture and sale in the interest of the public. This Committee made a report pointing out the necessity of exercising companytrol over import, 1 1955 2 S.C.R. 603, 632 633. 2 1957 S.C.R. 930, 936. A.I.R. 1959 S.C. 942, 948. 4 1950 S.C.R. 869, 5 1951 S.C.R. 682, 708. manufacture and sale of patent and proprietary medicines in the interest of the safety of the public and public health. The report pointed out in paragraph 256-259 how in other companyntries companytrol was exercised and restrictive laws to achieve that end had been enacted. In the Appendix to this Report was given a list of a number of samples of advertisements of patent and proprietary medicines dealing with cures of all kinds of diseases. As a result of the Chopra Committee Report the Drugs act, was passed in 1940. In 1948 The Pharmacy Act was passed to regulate the provisions of pharmacy. As a result of these two enactments the State Governments were given the responsibility of companytrolling the manufacture of drugs and pharmaceuticals and their sales through qualified personnel and the Central Government was given the companytrol on quality of drugs and pharmaceuticals imported into the companyntry. The Chopra Committee Report dealt with the popularity of the patent and proprietary medicines in the following words The pride of place must be accorded to ingenious propaganda clever and attractive dissemination of their supposed virtues and wide and alluring advertisements. The credulity and gullibility of the masses, especially when certain cures are assured in utterly hopeless cases, can well be imagined. Perusal of the advertisements of cures produces a great effect on patients who have tried treatment by medical men without success. Such patients resort to any and every drug that companyes in their way. In an infinitesimal small number of cases spontaneous cures are also effected. Widest publicity is given to these and the preparations become invested with miraculous virtues. The reassurances of cure, the force of argument advanced to guarantee it and the certificates of persons said to have been cured which are all set out in advertisements make a deep impression, especially on those with weak nerves. The love of mystery and secrecy inherent in human nature, the natural disinclination and shyness to disclose details of ones illness especially those involving moral turpitude, the peculiar temperament of the people who, high and low, rich and poor, demand something in a bottle for the treatment of every ailment and poverty of the people who cannot afford to pay the doctors bills or the high prices current for dispensed medicines, have all been enlarged upon as tending to selfdiagnosis and self-medication by patent and proprietary medicines. Evidence was led before the Chopra Committee deprecating the increasing sale of proprietary medicines particularly those with secret formulae as such drugs were positively harmful and were a serious and increasing menace. There were advertisements and pamphlets issued in companynection with these medicines which showed fraudulent practices and extravagant claims for these medicines. The Chopra Committee Report had also made a recommendation for a strict measure of companytrol over proprietary medicines. The Bhatia Committee was set up in pursuance to a resolution No. CI-1 12 /52 dated February 14, 1953, and between March 1953, and end of that year it examined a large number of witnesses in different towns of India some of whom represented chemists and druggists, some were leading medical practitioners and some were State Ministers for Health. The Bhatia Committee issued a Questionnaire to various organisations and witnesses. It companytained questions in regard to advertisement of drugs and therefore one of the objects of this Committee which was inaugurated by the Health Minister on March 12, 1953, was amongst other things to look into the companytrol to be exercised over objectionable and unethical advertisements. There were a large number of objectionable advertisements in the Press in regard to patent medicines which were after the Act came into force pointed out by the Press Commission Report but it cannot be said that this fact was unknown to Parliament as this Committee also examined a number of witnesses. The Indian Medical Association had suggested to this Press Committee which was presided over by the late Mr. Justice Rajadhyaksha the barring of advertisements of medicines which claim to cure or alleviate any of the following diseases Cancer, Brights disease, Cataract, Diabetes, Epilepsy, Glaucoma, Locomotor ataxia, Paralysis, Tuberculosis. In the United Kingdom, advertisements of drugs or treatment for these diseases are governed by the Cancer Act of 1939 and the Pharmacy and Medi. cines Act of 1941. Advertisement relating to the treatment of venereal diseases are governed by the Venereal Diseases Act of 1917 . Wyndham E.B. Lloyd in his book Hundred years of medicine published in 1936 wrote about the outstanding evils which arise from the use of secret remedies and numbertrums. It also drew attention to the dangers of advertisements in regard to them and what the British Medical Association had said about them. The British Medical Association had in a book entitled Secret Remedies What they companyt and companytain exposed ruthlessly the harmful effects of such remedies. The companyncil on Pharmacy and Chemistry of American Medical Association had also given its opinion on the harmful effects of indiscriminate self-medication by the public and the grave danger which ensued from such misdirected and inadequate treatment, and the failure to recognise seriousness of the disease only when it was too late. It is number necessary to refer to the recommendations of the Bhatia Committee or the Press Enquiry Committee because they were published in June and July 1954 respectively. In England as far back as 1889, an Act called the Indecent Advertisements Act 52 and 53 Viet. Ch. 18 was passed to suppress indecent advertisements in which advertisements relating to syphilis, gonorrhoea, nervous debility or other companyplaints or infirmity arising from intercourse was prohibited. In 1917 the Venereal Diseases Act 7 and 8 Geo. V Ch. 21 was passed in England. This placed restrictions on advertisements relating to treatment for venereal diseases. In 1941, The Pharmacy and Medicine Act, 1941 4 and 5 Geo. VI Ch. 42 was passed which companyresponds in material particulars to the impugned Act. It cannot be said that there was numbermaterial before Parliament on the basis of which it proceeded to enact the impugned legislation. This material shows the bistory of the legislation, the ascertained evil intended to be cured and the circumstances in which the enactment was passed. In Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar 1 , Das, C.J., observed - that in order to sustain the presumption of companystitutionality the companyrt may take into companysideration matters of companymon knowledge, the history of the times and may assume every state of facts which can be companyceived existing at the time of legislation Thus it is open to the companyrt for the purpose of determining the companystitutionality of the Act to take all these facts into companysideration and in the present case we find that there was the evil of self-medication, which both in this companyntry and in other companyntries, the medical profession and those, who were companyversant with its dangers, had brought to the numberice of the people at large and the Government in particular. They had also warned against the dangers of self-medication and of the companysequences of unethical advertisement relating to proprietary medicines particularising those diseases which were more likely to be affected by the evil. There is reason, therefore, for us to assume that the state of facts existed at the time of the legislation which necessitated the Act. These facts we have already set out and it is number necessary to reiterate them. With this background in view we proceed to examine the provisions of the Act and ascertain the predominant purpose, true intent, scope and the object of the Act. The preamble shows that the object of the Act was to companytrol the advertisement of drugs in certain cases, i.e., diseases and to prohibit advertisements relating to remedies pretending to have magic qualities and provide for other matters companynected therewith, 1 1959 S.C.R. 279, 297. The title of the Act also shows that it is directed against objectionable advertisements. The definition section s. 2 in cl. a defines advertisements and in cl. b drugs which include i medicines for use of human beings and animals, ii substances for use of diagnosis, treatment or prevention of diseases in human beings and animals, iii articles other than food whichaffect the organic functions of the body of human beings or animals and articles intended for use as a companyponent of any medicine etc., cl. c defines magic remedies to include a talisman, mantra, kavacha and other charms and d relates to the publication of any advertisement and e what a venereal disease is. Section 3 prohibits advertisement of drugs for treatment of diseases and disorders. Clause a of s. 3 deals with procurement of miscarriage in women for prevention of companyception cl. b with maintenance or improvement of capacity of human beings for sexual pleasure cl. c with diagnosis and cure of venereal and other diseases. Section 4 prohibits misleading advertisements relating to drugs. Section 5 similarly prohibits advertisements of magic remedies efficacious for purposes specified in s. 3. Section 6 prohibits the import into and export from India of certain advertisement. Section 14 is a saving clause which excludes registered practitioners, treatises or books,, advertisements sent companyfidentially to medical practitioners, wholesale or retail chemists for distribution among registered medical practitioners or to hospitals or laboratories. It also excludes advertisements printed or published by Government or with the previous sanction of the Government. Section 15 gives the Government the power to grant exemptions from the application of ss. 3, 4, 5 and 6 in certain cases. As already stated when an enactment is impugned on the ground that it is ultra vires and unconstitutional what has to be ascertained is the true character of the legislation and, for that purpose regard must be had to the enactment as a whole, to its objects, purpose and true intention and to the scope and effect of its provisions or what they are directed against and what they aim at A. S. Krishna v. State of Madras 1 . Thus 1 1957 S.C.R. 399, 4060 410. examined it cannot be said that the object of the Act was merely to put a curb on advertisements which offend against decency or morality but the object truly, and properly understood is to prevent self-medication or treatment by prohibiting instruments which may be used to advocate the same or which tend to spread the evil. No doubt in s. 3 diseases are expressly mentioned which have relation to sex and disorders peculiar to women but taken as a whole it cannot be said that the object of the Act was to deal only with matters which relate to indecency or immorality. The name and the preamble are indicative of the purpose being the companytrol of all advertisements relating to drugs and the use of the word animals in cl. b of the definition section negatives the object being merely to curb the emphasis on sex and indecency. Section 4 further suggests that the legislature was trying to stop misleading advertisements relating to drugs. Section 5 also tends to support the object being prohibition of advertisements suggesting remedies for all kinds of diseases. Section 6 also points in the same direction, i.e., to stop advertisements as to drugs. Sections 14 and 15 are a clearer indication that there should be numberadvertisements for drugs for certain diseases in order that the general public may number be misled into using them for ailments which they may imagine they are suffering from and which they might believe to be curable thereby. That this is so is shown by the fact that such advertisements can be sent to medical practitioners, hospitals and laboratories. The exclusion of Government advertisements and the power to give exemption all point to the objective being the stopping of advertisements of drugs for the object above-mentioned and number merely to stop advertisements offending against morality and decency. Mr. Munshis argument was that s. 3 was the key to the Act and that the object and direct effect of the Act was to stop advertisements and thereby impair the right of free speech by directly putting a prohibition on advertisement. If the companytention of Mr. Munshi were accepted then the restriction to be valid, must fall within cl. 2 of Art. 19 of the Constitution. In other words it must have relationship with decency or morality because the other restrictions of that clause have numberapplication. If on the other hand the submission of the learned Solicitor-General is accepted then the matter would fall under sub-cls. f and g and the restriction under Art. 19 6 . The object of the Act as shown by the scheme of the Act and as stated in the affidavit of Mr. Merchant is the prevention of self-medication and selftreatment and a curb on such advertisements is a means to achieve that end. Objection was taken that the preamble in the Act does number indicate the object to be the prevention of treatment of diseases otherwise than by qualified medical practitioners as the English Venereal Diseases Act 1917 does. In this Court in many cases affidavits were allowed to be given to show the reasons for the enactment of a law, the circumstances in which it was companyceived and the evils it was to cure. This was done in the case of Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar 1 . Similarly, in Kathi Raning v. The State of Saurashtra 2 and in Kavalappara Kottarathil Kochunni v. The State of Madras 3 affidavits were allowed to be filed setting out in detail the circumstances which led to the passing of the respective enactments. In support of his argument that any limitation of his right to advertise his goods was an infringement of his freedom of speech because advertisement was a part of that freedom Mr. Munshi relied upon Alma Lovell v. City of Griffin 4 . In that case the objection was taken to the validity of a municipal ordinance prohibiting the distribution without a permit of circulars, handbooks, advertising or literature of any kind on the ground that such ordinance violated the first and the 14th amendment by abridging the freedom of the Press and it was held that such prohibition was invalid at its face as infringing the companystitutional freedom of the Press and companystitutional guarantee of such freedom embraced pamphlets and leaflets. The actual violation which was companyplained of in that case companysisted of the 1 1959 S.C.R. 279. 2 1952 S.C.R. 435. A.I.R. 1959 S.C. 725. 4 82 Law Ed. 949 303 U.S. 444. distribution without the required permission of pamphlets and magazines in the nature of religious tracts. Chief Justice Hughes, said - The ordinance in its broad sweep prohibits the distribution of circulars, handbooks, advertising or literature of any kind. It manifestly applies to pamphlets, magazines and periodicals. No doubt the word advertisement was used both in the ordinance as well as in the opinion by the learned Chief Justice but the case actually related to the distribution of pamphlets and magazines. Mr. Munshi also relied on Express Newspapers Private Ltd. v. The, Union of India 1 , where the cases dealing with freedom of speech were discussed by Bhagwati, J., but the question of advertisements as such did number arise in that case. An advertisement is numberdoubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Art. 19 1 which it seeks to aid by bringing it to the numberice of the public. When it takes the form of a companymercial advertisement which has an element of trade or companymerce it numberlonger falls within the companycept of freedom of speech for the object is number propagation of ideassocial, political or economic or furtherance of literature or human thought but as in the present case the companymendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines. In such a case, advertisement is a part of business even though as described by Mr. Munshi its creative part, and it was being used for the purpose of furthering the business of the petitioners and had numberrelationship with what may be called the essential companycept of the freedom of speech. It cannot be said that the right to publish and distribute companymercial advertisements advertising an individuals personal business is a part of freedom of speech guaranteed by the Constitution. In Lewis J. Valentine v. F. J. Chrestensen 2 . It was held that the companystitutional right of free speech is number infringed by 1 1959 S.C.R. 12,123-133. 2 86 Law. Ed. 1262. prohibiting the distribution in city streets of handbills bearing on one side a protest against action taken by public officials and on the other advertising matter. The object of affixing of the protest to the advertising circularwas the evasion of the prohibition of a city ordinance forbidding the distribution in the city streets of companymercial and business advertising matter. Mr. Justice Roberts, delivering the opinion of the companyrt said- This companyrt has unequivocally held that the streets are proper places for the exercise of the freedom of companymunicating information and disseminating opinion and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may number unduly burden or proscribe its employment in these public thoroughfares. We are equally clear that the Constitution imposes numbersuch restraint on government as respects purely companymercial advertising If the respondent was attempting to use the streets of New York by distributing companymercial advertising, the prohibition of the Code provisions was lawfully invoked against such companyduct. It cannot be said therefore that every advertisement is a matter dealing with freedom of speech number can it be said that it is an expression of ideas. In every case one has to see what is the nature of the advertisement and what activity falling under Art. 19 1 it seeks to further. The advertisements in the instant case relate to companymerce or trade and number to propagating of ideas and advertising of prohibited drugs or companymodities of which the sale is number in the interest of the general public cannot be speech within the meaning of freedom of speech and would number fall within Art. 19 1 a . The main purpose and true intent and aim, object and scope of the Act is to prevent self-medication or self-treatment and for that purpose advertisements companymending certain drugs and medicines have been prohibited. Can it be said that this is an abridgement of the petitioners right of free speech. In our opinion it is number. Just as in Chamarbaughwallas ease 1 it was said that activities undertaken and 1 1957 S.C.R. 930. carried, on with a view to earning profits e.g. the business of betting and gambling will number be protected as falling within the guaranteed right of carrying on business or trade, so it cannot be said that an advertisement companymending drugs and substances as appropriate cure for certain diseases is an exercise of the right of freedom of speech. Das, C.J., in State Bombay v. R.M.D. Chamarbaughwalas 1 case said at, page 920 We have numberdoubt that there are certain activities which can under numbercircumstances be regarded as trade or business or companymerce although the usual forms and instruments are employed therein. To exclude those activities from the meaning of those words is number to cut down their meaning at all but to say only that they are number within the true meaning of those words. One has only to substitute for the words trade or business or companymerce the phrase freedom of speech to see how it applies to the present case. Freedom of speech goes to the heart of the natural right of an organised freedom-loving society to impart and acquire information about that companymon interest. If any limitation is placed which results in the society being deprived of such right then numberdoubt it would fall within the guaranteed freedom under Art. 19 1 a . But if all it does is that it deprives a trader from companymending his wares it would number fall within that term. In John W. Rast v. Van Deman Lewis Company 2 , Mr. Justice McKenna, dealing with advertisements said- Advertising is merely identification and description apprising of quality and place. It has numberother object than to draw attention to the article to be sold and the acquisition of the article to be sold companystitutes the only inducement to its purchase. As we have said above advertisement takes the same attributes as the object it seeks to promote or bring to the numberice of the public to be used by it. Examples can be multiplied which would show that advertisement dealing with trade and business has relation 1 1957 S.C.R. 874. 2 60 Law Ed. 679, 690, with the item business or trade and number with freedom of speech. Thus advertisements sought to be banned do number fall under Art. 19 1 a . It was also companytended that the prohibition against advertisements of the petitioners was a direct abridgement of the right of freedom of speech and Alice Lee Grosjean v. The American Press Co. 1 was relied upon. That was a case in which a tax was levied based on gross receipts for the privilege of engaging in the business of public advertisements in newspapers, magazines etc. having a specified circulation and it was there held that such a statute abridged the freedom of the press because its effect was number merely to reduce revenue but it had tendency to curtail circulation. - This subject was discussed in Express Newspapers case 2 at pages 128 to 133 where the question was whether the Wage Board Act specifying the wages and companyditions of service of the working journalists and thus imposing certain financial burden on the press was an interference with the right of freedom of Press and Bhagwati, J., said at page 135- Unless these were the direct or inevitable companysequences of the measures enacted in the impugned Act, it would number be possible to strike down the legislation as having that effect and operation. A possible eventuality of this type would Dot necessarily be the companysequence which companyld be in the companytemplation of the legislature while enacting a measure of this type for the benefit of the workmen companycerned. In companysidering the companystitutionality of a statute the Court has regard to substance and number to mere matters of form and the statute must be decided by its operation and effect M. Near v. State of Minnesota 3 . In the present case therefore 1 the advertisements affected by the Act do number fall within the words freedom of speech within Art. 19 1 a 2 the scope and object of the Act its true nature and character is number interference with the right of freedom of speech 1 80 Law Ed. 660. 2 1959 S.C.R. 12, 123-133. 3 75 La- Ed. 1357, 1363-4. but it deals with trade or business and 3 there is numberdirect abridgement of the right of free speech and a mere incidental interference with such right would numberalter the character of the law Ram Singh v. The State of Delhi 1 Express Newspapers Private Ltd. v. The Union of India 2 . It is number the form or incidental infringement that determines the companystitutionality of a, statute in reference to the rights guaranteed in Art. 19 1 , but the reality and substance. The Act read as a whole does number merely prohibit advertisements relating to drugs and medicines companynected with diseases expressly mentioned in s. 3 of the Act but they companyer all advertisements which are objectionable or unethical and are used to promote self-medication or selftreatment. This is the companytent of the Act. Viewed in this way, it does number select any of the elements or attributes of freedom of speech falling within Art. 19 1 a of the Constitution. It was next argued that assuming that the matter was within clauses f g of Art. 19 1 , the restraint was disproportionate to the purpose of the Act, the object sought to be achieved and the evil sought to be remedied. It was further argued that it companyld number be said that the restrictions imposed by the Act were in the interest of the general public. The basis of this argument was 1 the very wide definition of the word advertisementin s. 2 a 2 the use of the word suggest in s. 3 3 the uncanalised delegated power to add diseases to the schedule 4 the existence of s. 14 c read with rule 6 of the Rules and 5 the procedural part in s.8 of the Act all of which, according to companynsel, showed that it was beyond all allowable limits of restraint under cl. 6 of Art. 19. Advertisement in the Act, it was argued, included number only advertisements in newspapers and periodicals and other forms of publication but also on. cartons, bottles and instructions inside a carton. Without this latter kind of advertisement, it was submitted, the user would be unable to know what the medicine was, what it was to be used for and how ? If the purpose 1 1951 S.C.R.451, 455. 2 1959 S.C.R. 12, 123,133. of the Act is to prevent objectionable and unethical advertisements in order to discourage self medication and self treatment it cannot be said that the definition is too wide keeping in view the object and the purpose of the Act which have been set out above. It is these evils which the Act seeks to cure and if the definition of the word advertisment was number so broad and inclusive it would defeat the very purpose for which the Act was brought into existence. The argument that the word suggest is something subjective is, in our opinion, also number well-founded. Suggest has many shades of meaning and in the companytext it means companymendatory publication. It companynotes a direct approach and its use in s. 3 does number support the companytention. that the restraint is disproportionate. In another part of the judgment we shall discuss the companystitutionality of the power of delegation reasonableness of the range of diseases added in the schedule and it is unnecessary to go over the same field here. Then we companye to s. 14 c and r. 6, i.e., prohibited advertisement is to be sent companyfidentially by post to a registered medical practitioner or to a wholesale and retail chemist or a hospital and laboratory and the following words have to be inscribed on the outside of every packet companytaining the advertisement, i.e., for the use only of registered medical practitioners or a hospital or a laboratory . If the purpose is to discourage selfmedication and encourage treatment by properly qualified medical practitioners then such a regulatory provision cannot be companysidered an excessive restraint. The mere fact that in the companyresponding English Act certain other persons are also mentioned and that such advertisements can be published in certain medical journals and scientific treatises is number a ground for holding the restriction to be disproportionate. It is number a proper method of judging the reasonableness of the restrictions to companypare every section of the Act with the companyresponding English Act and then to hold it unreasonable merely because the companyresponding section of the two Acts are different. The evil may be the same but the circumstances and companyditions in the two companyntries in regard to journals may be different and there are bound to be differences in the degree of restrictiveness in the operativeportions of the two Acts. The policy behind the Act is that medication should be on the advice of qualified medical practitioners. Merely because the legislature thought that it would number exclude advertisements in medical journals of the companyntry would number be indicative of the disproportion of the restraint. Objection was then taken to the procedural part in s. 8 and it was submitted that the power seizure and detention was unfettered and and there is numberproper procedure laid down Criminal Procedure Code or the Drugs Act are numberrules and safeguards in regard warrants or entry into premises as there Code of Criminal Procedure or the Drugs Act. In another part of the judgment we shall deal with this question and it is number necessary to do so here. It was next companytended that the Act was number in the interest of the general public as it companyld number be said that the mention of the names of diseases or instructions as to the use of particular medicines for those diseases was number in the interest of the general public. Besides, it would prevent the medicines being brought to the numberice of the practising medical practitioners or distributing agencies. It would also prevent a properly worded advertisement suggesting cure of diseases to people who for the sake of prestige and other understandably valid reasons do number like to companyfide to any person the nature of their diseases and that it would prevent medical relief in a companyntry where such relief is numberoriously inadequate. We have already set out the purpose and scope of the Act, the companyditions in which it was passed and the evils it seeks to cure. If the object is to prevent self-medication or self--treatment, as it appears to be then these are exactly the evils which such advertisements would subserve if a piece of legislation like the Act did number exist. It has number been shown that the restrictions laid down in the Act are in any manner disproportionate to the object sought to be attained by the Act number has it been of shown that the restrictions are outside the permissible limits. Mr. Chatterjee in dealing with this point drew our attention to the test of reasonablenses as laid down in Chintaman Rao v. The State of Madhya Pradesh 1 where it was said by Mahajan, J. as he then was at pages 762 and 763- The question for decision is whether the statute under the guise of protecting public interests arbitrarily interferes with private business and imposes unreasonable and unnecessarily restrictive regulations upon lawful occupation in other words whether the total prohibition of carrying on the business of manufacture of bidis within the agricultural season amounts to a reasonable restriction on the fundamental rights mentioned in article 19 1 g of the Constitution. It has number been shown in the present case that under the guise of protecting public interest the Act arbitrarily interferes with private business or imposes unreasonable restrictions. If the true intention of the Act is, as indeed it is, to stop objectionable and unethical advertisements for the purpose of discouraging selfmedication numberquestion of unreasonable restrictions arises. Mr. Chatterjee also relied upon the observation of Bose, J., in Dwarka Das Srinivas of Bombay v. The Sholapur Spinning Weaving Company Limited 2 where the learned Judge said that the provisions in the Constitution touching fundamental rights must be companystrued broadly and liberally in favour of those on whom the rights have been companyferred . With this statement we are in accord. The interpretation should be such as to subserve the protection of the fundamental rights of the citizen but that is subject to limitations set out in Art. 19 itself which are for the general welfare of all ,citizens taken as a whole and are therefore for the interest of the general public. Mr. Chatterjee further companytended that the restraint was excessive because the prohibition of a mere mention of the name of a disease and the suggestion of a cure for that companyld 1 1950 S.C.R. 739. 2 1954 S.C. R. 674, 733. number be a reasonable restriction. As submitted by the learned Solicitor-General the objection is number to the names but to the advertisements companymending certain medicines as a cure for the same and this is what the Act is endeavouring to eliminate. In our opinion it cannot be said that the restrictions either excessiveor disproportionate or are number in the interest of the general public. The third point raised by Mr. Munshi was that thewords or any other disease or companydition which maybe specified in the rules made under this Act in cl. d of s. 3 of the Act are delegated legislation and do number lay down any certain criteria or proper standards,and surrender unguided and uncanalised power to theexecutive to add to diseases in the schedule. Thelearned Solicitor-General in reply supported theschedule as a case of companyditional legislation and number the exercise of delegated legislative power and he further companytended that even if it was held to be thelatter it was within the limits recognised by judicial decisions. The distinction between companyditional legislation and delegated legislation is this that in the former the delegates power is that of determining when a legislative declared rule of companyduct shallbecome effective Hampton Co. v. U.S. 1 and thelatter involves delegation of rule making power which companystitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate companypletes the legislation by supplying details within the limits prescribed by the statute and in the case of companyditionallegislation the power of legislation is exercised by the legislature companyditionally leaving to the discretion of an external authority the time and manner -of carrying its legislation into effect as also the determination of the area to which it is to extend The Queen v. Burah 2 Russell v. The Queen 3 King-Emperor v. 1 276 U.S. 394. 2 1878 3 App. Cas. 889. 1882 7 App. Cas. 829, 835. Benoarilal Sarma 1 Sardar Indar Singh v. State of Rajasthan 2 . Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation. But when the legislation is companyplete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is companyditional legislation. To put it in the language of another American case To assert that a law is less than a law because it is made to depend upon a future event or act is to rob the legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs number yet developed, or to things future and impossible to fully know. The proper distinction there pointed out was this The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. There are many things upon which wise and useful legislation must depend which cannot be known to the law making power, and must therefore be subject of enquiry and determination outside the hall of legislatures In Lockes Appeal 72 Pa. 491 Field v. Clark 143 U. S. 649. But the discretion should number be so wide that it is impossible to discern its limits. There must instead be definite boundaries within which the powers of the administrative authority are exercisable. Delegation should be number be so indefinite as to amount to an abdication of the legislative function-Schwartz American Administrative Law, page 21. In an Australian case relied upon by the learned Solicitor General the prohibition by proclamation of 1 1944 L.R. 72 I.A. 57, 2 1957 S.C.R. 604, goods under s. 52 of the Customs Act 1901 was held to be companyditional legislation Baxter v. Ah Way 1 According to that case the legislature has to project its mind into the future and provide as far as possible for all companytingencies likely to arise in the application of the law, but as it is number possible to provide for all companytingencies specifically for all cases,, the legislature resorts to companyditional legislation leaving it to some specified authority to determine in what circumstances the law should become operative or to what its operation should be extended, or the particular class of persons or goods -to which it should be applied Baxters case 1 at pp. 637 638. Broadly speaking these are the distinguishing features of the two forms of delegation and these are their characteristics. The question is in which companypartment does the power given in the Act fall. The power given to the authority under that provision S. 3 of the Act is companytained in cl. d in the following words- S.3 Subject to the provisions of this Act, numberperson shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for d the diagnosis, cure, mitigation, treatment or prevention of any venereal disease or any other disease or companydition which may be specified in rules made under this Act. And power to make rules is laid down in s. 16 which is as follows- S. 16 1 The Central Government may by numberification in the official gazette make rules for carrying out the purposes of this Act. In particular and without prejudice to the generality of the foregoing power, such rules may a specify any disease or companydition to which the provisions of s. 3 shall apply 1 3 Com. L. R. 626, 634, 637, 638. b prescribe the manner in which advertisement of articles or things referred to in cl. c of sub-s. 1 of s. 14 may be sent companyfidentially. For the petitioner it was argued that s. 3 d is delegated legislation and number companyditional legislation as the power delegated therein is only to specify companyditions and diseases in the rules. The interdiction under the Act is applicable to companyditions and diseases set out in the various clauses of s. 3 and to those that may under the last part of clause d be specified in the rules made under s. 16. The first subsection of is. 16 authorises the making of rules to carry out the purposes of the Act and cl. a of sub-section 2 of that section specifically authorises the specification of diseases or companyditions to which the provisions of s. 3 shall apply. It is the first sub-section of s. 16 which companyfers the general rule making power, i.e., it delegates to the administrative authority the power to frame rules and regulations to subserve the object and purpose of the Act. Clause a of the second sub-section is merely illustrative of the power given under the first sub-section King Emperor Sibnath Banerji 1 . Therefore, sub-s. 2 a also has the same object as sub-s. 1 , i.e, to carry out the purposes of the Act. Consequently, when the rule making authority specifies companyditions and diseases in the schedule it exercises the same delegated authority as it does when it exercises powers under sub-s. 1 and makes other rules and therefore it is delegated legislation. The question for decision then is, is the delegation companystitutional in that the administrative authority has been supplied with proper guidance. In our view the words impugned are vague. Parliament has established numbercriteria, numberstandards and has number prescribed any principle on which a particular disease or companydition is to be specified in the Schedule. It is number stated what facts or circumstances are to be taken into companysideration to include a particularcompanydition or disease. The power of specifying diseases and companyditions as given in s. 3 d must therefore be held to be going beyond permissible boundaries 1 1945 L.R. 72 I.A. 241. of valid delegation. As a companysequence the Schedule in the rules must be struck down. But that would number affect such companyditions and diseases which properly fall within the four clauses of s. 3 excluding the portion of cl. d which has been declared to be unconstitutional. In the view we have taken it is unnecessary to companysider the applicability of Baxter v. Ah Way 1 . We are of the opinion therefore that the words or any other disease or companydition which may be specified in the rules made under this Act companyfer uncanalised and uncontrolled power tothe Executive and are therefore ultra vires. But their being taken out of cl. d of s. 3 does number affect the companystitutionality of the rest of the clause or section as they are severable R. M. D. Chamarbaughwala The Union of India 2 . The companystitutionality of s. 8 of the Act was challenged on the ground that it violated the petitioners right under Arts. 21 and 31. That section when quoted runs as follows Any person authorised by the State Government in this behalf may, at any time, seizeand detain any document, article or thing which such person has reason to believe companytains any advertisement which companytravenes any of the provisions of this Act and the companyrt trying such companytravention may direct that such document includingall companyies thereof article or thing shall be forfeited to the Government.It was pointed out by Mr. Munshi that there was numberimitation placed on, numberrules and regulations made for and numbersafeguards provided in regard to the powers of a person authorised in that behalf by Government to seize and detain any document, article or anything which in the opinion of such person companytains any advertisement companytravening any of theprovisions of the Act. It was also submitted that in the companyresponding English Act of 1939, in s. 10 there are proper safeguards provided in regard to the exercise of the power of seizure etc. The first part of s. 8 of the Act dealing with seizure and detention received slender support from the Solicitor-General. It may 1 8 Com. L.R. 626, 634, 637, 638, 2 1957 S.C.R. 930. be, he companytended, that having regard to the purpose and object of the Act the Indian legislature did number think it necessary to provide any safeguards and that the legislature thought that numberody would be prejudiced by reason of the want of safeguard previous to the seizure, In our opinion this portion of the section goes far beyond the purpose for which the Act was enacted and, the absence of the safeguards which the legislature has thought it necessary and expedient in other statutes, e.g., the Indian Drugs Act, is an unreasonable restriction on the fundamental rights of the petitioners and therefore the first portion of the section, i.e., any person authorised by any of the provisions of this Act is unconstitutional. What then is the companysequence of this unconstitutionality ? If this portion is excised from the rest of the section the remaining portion is number even intelligible and cannot be upheld. The whole of the section must therefore be struck down. By a portion of cl. d of s. 3 and the whole of B. 8 being declared unconstitutional the Act is number thereby affected as they are severable from the rest of the Act. As a companysequence of excision of that portion and of s. 8 from the Act the operation of the remaining portion of the Act remains unimpaired. R. M. D. Chamarbaughwala v. The Union of India 1 . As a result of s. 8 being declared invalid, all the goods seized from the petitioners having been seized without the authority of law must be returned to the respective petitioners. It will be for the Government to take such action in regard to the proceedings taken or prosecutions companymenced as is in accordance with the law laid down in this Judgment.

Mr. Justice AKENHEAD: Introduction This application is made during the trial by the Claimants to rely upon the reports of Mr. Bourdillon and Mr. Coates, the fire experts retained by the Second and Third Defendants who now no longer play any part in these proceedings, consent orders having been made on the second and third days of the trial whereby the claim and respective part 20 claims have been discontinued against them. The application raises issues under CPR 35.11 which states: "Where a party has disclosed an expert's report, any party may use that expert's report as evidence at the trial." Previously, CPR 35.11 has been considered by His Honour Judge Coulson QC (as he then was) in Gurney Consulting Engineers v Gleeds Health & Safety Ltd [2006] EWHC 43 (TCC) The background This claim relates to a fire which occurred in Butchery Lane, Canterbury, Kent on 3 July 2001. The fire started in and badly damaged the City Arms, 7 Butchery Lane, then owned by the Fourth Claimants and managed (and occupied) by the Fifth Claimants. The First to Third and Sixth to Ninth Claimants ("the Neighbouring Claimants") owned or occupied adjacent premises which were also affected by the fire. EDF Energy Networks (SPN) PLC ("EDF") was the electricity distributor at the material time. The Second Defendant, Whitbread PLC, had been the owner of the City Arms until some eight weeks before the fire. The Third Defendants were electrical contractors retained by Whitbread from time to time who had done various works at the City Arms at various times. The claim was commenced in 2006 and has been proceeding in a relatively conventional way. By various orders made at various times, the two sets of Claimants and the three Defendants were required to have their experts meet, discuss matters on a without prejudice basis, produce joint statements identifying what they agreed and disagreed about, and to exchange expert reports. That is what happened. The Neighbouring Claimants' expert is Mr Tucker, the 4th and 5th Claimants' is Dr. Lipczynski, EDF's is Dr Fletcher, the Second Defendant's was Mr Bourdillon and the Third Defendant's was Mr Coates. Their exchanged reports appear thorough but, perhaps unsurprisingly, they do not agree on every matter. Broadly, based upon the exchanged reports and the first four Joint Statements, all experts except Dr. Fletcher seem to have agreed that the source or seat of the fire was on the supply side, that is on the electricity supply side of the electrical meter. Dr Fletcher's analysis is that the fire probably started on the consumer's side of the meter. That is important because all Counsel accepted in opening that, if the fire started on the consumer side, EDF would not be liable. It remained in issue whether, even if the fire started on the supply side, EDF was liable. On the first day of the trial, the 21st January 2008, the parties informed me that there was a very good prospect that a compromise would be achieved in effect to allow the Second and Third Defendants out of the proceedings. I adjourned the hearing until the next day, the 22nd January, when I was told that the Neighbouring Claimants had settled with the Second and Third Defendants but that the Fourth and Fifth Claimants had not. I was told that the Neighbouring Claimants had a claim in separate proceedings against the Fourth and Fifth Claimants, relating to the fire, which had been stayed. I lifted the stay, made orders requiring various steps to be taken to enable that claim to proceed at the same time and adjourned the start of the trial until the following day. I was not wholly surprised to be told at the start of the third day that the Fourth and Fifth Claimants had also resolved their differences with the Second and Third Defendants as well as the Neighbouring Claimants. On the first day, Mr Brown, Counsel for the Neighbouring Claimants, had indicated that in the event that the Second and Third Defendants took no part in the proceedings, he would apply under CPR 35.11 for an order confirming that his clients could rely upon the reports of their experts' reports. He made that application during his full opening on the third day, the 24th January, supported by Mr Elkington for the Fourth and Fifth Claimants. Mr. Jones QC for EDF opposed that application during his opening. Following that, I indicated that I acceded to the application and would give my reasons later, which I now do by this judgment. The arguments Mr Brown relies upon the Gurney decision as authority for the proposition that the Claimants are entitled to rely upon the expert reports of Mr Bourdillon and Mr Coates in circumstances where the Second and Third Defendants have dropped out of the proceedings. He argues that in effect his clients are so entitled as of right given the wording of CPR 35.11. In any event, he argues that it is fair that this can happen given these experts' involvement until past the twelfth hour. Mr Jones QC argues otherwise. He refers to CPR 35.1 which states: "Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings" He also relies upon CPR 35.7 (under which the Court can appoint a single joint expert) as supportive of his position that the court's approach should be sparing when it comes to allowing in expert evidence. He says that it is unnecessary for these two reports to be introduced as the Claimants have adequate expert evidence in the form of Mr Tucker's and Dr Lipczynski's reports and time and cost will be wasted. He will be put in difficulty if having to call Mr Bourdillon and Mr Coates. Discussion The wording of CPR 35.11 is unequivocal and unqualified: it applies where any party has put in an expert's report so that any party may rely upon it as evidence. There is no qualification that it only applies to a party (whose expert's report has been disclosed) if it remains a party. The party which wishes to rely upon that report as evidence is not limited to the party which has disclosed it in the first place. CPR 35.1 must be read with CPR 35.11. Whilst the indiscriminate use of experts and in particular the reliance by one party on more than one expert in each relevant discipline is discouraged, often parties will be allowed each to call one expert in each material discipline, if necessary or otherwise desirable. CPR 35.7 is an example where the Court can, to save cost, resources and time, order that a single joint expert is appointed; that applies, for example, in cases where the amount in issue is relatively small and the single joint expert can relatively easily address the issues from the joint perspective of the parties. Thus, in this Court, quantity surveyors are sometimes appointed (often by agreement) as a single joint expert to address quantum matters in cases on final accounts and defects cases. Where, however, the Court has gone down the route, as here, of permitting all five parties to rely upon their own technical experts, with the concurrence of the parties, the Court has accepted that it was reasonable in the first place to permit the introduction of such expert evidence as is presaged in their reports. HHJ Coulson's judgment in Gurney is illuminating and in my view correct. The facts of the case are comparable. Gurney was a defendant in proceedings relating to a refurbishment project of a terrace which had collapsed. Gurney had brought in various parties as Part 20 defendants: architects, contractors and Gleeds, the project managers. The contractors had brought in a scaffolding sub-contractor. Gurney settled with the Claimant, the architects and the contractors. Gleeds wished to rely upon the exchanged expert reports of the parties who had settled. Gurney objected. The material parts of the judgment are: "6. In my judgment, the answer to Mr Sutherland's [Gurney's Counsel] two points can be found in CPR 35.11 itself. It only applies where party A has already disclosed an expert's report and party B wants to rely on it as evidence at the trial. The disclosure of party A's report could only have occurred in accordance with CPR 35.4. In other words, it is a fundamental assumption within CPR 35.11 that there has already been compliance with CPR 35.4, and the report which party B now wishes to use is one for which the court has already given permission. In such circumstances, it is not necessary for party B to seek permission all over again; party B merely wishes to use a report for which permission has already been given. 7. Similarly, because CPR 35.11 assumes that party A's report has been disclosed in accordance with CPR 35.4, it does not matter whether, sometime after disclosure of that report, party A ceased to be a party to the proceedings. The reference to "a party [that] has disclosed an expert's report" in CPR 35.11 cannot be limited to those who happen to be parties to the proceedings at the time that that report is sought to be used by another: there is nothing in the rule which could limit its scope in that way. The reference in r.35.11 is to any party who has disclosed a report in accordance with r.35.4, whether they subsequently remain a party to the proceedings or not. 8. Prima facie, therefore, as a matter of straightforward construction of the CPR, Gleeds can use the engineering reports disclosed by Pearson, Styles and Wood, GMK, and Fourways. Moreover, I should say that, in my judgment, such a result is generally in accordance with the over-riding objective at CPR 1.1. It would be artificial, and possibly even misleading, in a case of this sort, for the court to have no regard whatsoever to the reports of the other experts, or the part played by those other experts in reaching the detailed contents of the CPR 35.12 joint statement…. 11. Finally I should add this. Although I consider that, in general terms, it would be artificial for me to ignore entirely the views of the other engineering experts, it should not be thought that any great weight can be attached to the views of any expert who will not give oral evidence at the trial. Moreover, the fact that the majority of the engineering reports reach broadly similar conclusions on causation is also, of itself, of little account: cases of this kind are decided by reference to the quality of the expert evidence adduced at trial, and in particular the oral evidence. They are not determined by weight of numbers." I am of the view that in the circumstances of this case the Claimants are entitled to rely upon the reports of Mr Bourdillon and Mr Coates pursuant to CPR 35.11; my reasons are as follows; (a) CPR 35.11 gives them an unqualified right to do so. (b) It is logical that, if the parties have complied with and relied upon Court orders, as here, with regard to the service of expert reports and to the production of joint statements setting out what the experts agree and disagree about, any party remaining in the proceedings can rely, as evidence, upon the reports of experts whose clients were, but are no longer, active parties to the proceedings. They will have conducted themselves on the basis that all the experts will be giving evidence at trial. (c) Even if CPR 35.11 gave me a discretion, and in any event, pursuant to case management powers, I would allow the Claimants to rely upon these other reports. The five experts undoubtedly spent a considerable time talking together and producing four joint statements (albeit Mr Bourdillon did not contribute to the fourth). Those statements are before me in any event and contain the views of Mr Bourdillon and Mr Coates. To understand them in context, it is likely to be necessary to understand what their reports say. (d) It is not disproportionate to permit the Claimants to rely upon these reports as evidence. If the case against the Second and Third Defendants had proceeded, they would have been able to do so and EDF must have prepared for trial upon the basis that Mr Bourdillon and Mr Coates would have given evidence. There is no prejudice particularly to EDF who can either call the two experts or rely upon the factors set out in Paragraph 11 of the Gurney judgment (see above). I have made it clear in argument that I would permit EDF's Counsel to cross-examine them if called pursuant to any witness summons issued by EDF. There remains time to issue such summonses. (e) I do not see that costs will be materially increased. If Mr Bourdillon and Mr Coates are not called, then little time will be added overall. All Counsel and experts have doubtless (and I had) already read their reports, given that the settlement with the Second and Third Defendants occurred after the trial had started. They would probably have to be considered further in any event in exploring the ambit of the joint statements. Even if they are called as witnesses (which I suspect is unlikely), I anticipate that their examination would be fairly limited; the trial is in any event likely to be much shorter than the parties anticipated by reason of the departure of the Second and Third Defendants. It will be open to EDF to argue that, if reliance upon the reports turns out to be wholly unnecessary, a special costs order in their favour should be made. It follows that the Claimants may rely upon the reports of Mr Bourdillon and Mr Coates in the trial which is proceeding.

ASHOK BHUSHAN, J. Leave granted. This appeal has been filed against judgment dated 08.07.2014 of High Court of Karnataka in Civil Revision No. 219 of 2014. The Civil Revision was filed by the appellants against the judgment and order dated 27th May, 2014 of vacation District Judge, Mangalore in Original Suit No. 5 of 2014 filed by the appellants plaintiffs. In the Suit, I.A. No. IV was filed by the defendants respondents under Section 8 1 of Arbitration and Conciliation Act, 1996, relying on arbitration agreement in retirement deed dated 25.07.2005 hereinafter referred to as retirement deed as well as in the partnership deed dated 05.04.2006 hereinafter referred to as partnership deed . Learned District Judge has allowed the application filed by the defendant under Section 8 1 of 1996 Act. Parties to the suit were referred to the arbitration to settle the dispute as per arbitration agreement. The High Court wide impugned judgment has affirmed the order of Trial Court with observation that parties can press for an early trial. The Revision Petition was disposed of accordingly. Aggrieved against the judgment of High Court, the appellants plaintiffs have filed this appeal. The brief facts necessary to be numbered for deciding this appeal are Late Ramabhakta had started a business of manufacture and sales of Beedi under the name M s Neo Subhash Beedi Works. After his demise, his six sons, namely, late M. Narasimha Bhakta, late M. Subhaschandra Bhakta, late M. Prakashchandra Bhakta, late M. Ganesh Bhakta, late M. Gangadhar Bhakta and late M. Ashok Bhakta, companystituted the partnership firm. M. Narsimha Bhakta retired from the firm as per the release deed dated 30.06.1986 and the remaining partners companytinued with the firm. M.Prakashchandra Bhakta died on 20.03.1995 and as per his Will, his minor son Master M. Vinayaka Bhakta was admitted to the partnership as per partnership deed dated 21.03.1995. On 06.03.1997, Subhaschandra Bhakta died and his LRs, namely Defendant Nos. 1 to 4 became partners. Ashok Bhakta died on 18.09.2001. The first plaintiff is son of late Ashok Bhakta. On 25.07.2005, retirement deed was executed in which Defendant Nos. 1 to 4 were stated to have retired from partnership. The partnership deed dated 05.04.2006 was entered between late M. Gangadhar Bhakta, M. Vinayaka Bhakta, Defendant No. 5 and M. Vipin Bhakta S o late M. Ganesh Bhakta and Master M. Anantesh Bhakta,1st Plaintiff. M.Gangadhar Bhakta expired and his estate is represented by the Plaintiff Nos. 2 3. The suit for partition was filed by M. Prakaschandra Bhakta and others against M. Subhaschandra Bhakta and others, being O.S. NO. 4 of 1985. The preliminary decree was passed on 31.07.1986. M. Subhaschandra Bhakta and others filed FDP No. 24 of 1992 for preparation of final decree in which the companypromise petition dated 04.04.1994 was filed and companypromise decree was passed on 05.04.1994. As per the companypromise decree, Item No. 1 of A schedule property was allotted to M. Subhaschandra Bhakta and Item No. 2 was allotted to M. Prakashchandra Bhakta. An agreement to sale dated 19.04.1993 was executed by M. Prakashchandra Bhakta in favour of partnership firm. Similar agreement to sell dated 19.04.1993 was also executed by M.Subhaschandra Bhakta in favour of firm. A Suit No. 5 of 2014 was filed by three Plaintiffs appellants against six Defendants who are Respondent Nos. 1 to 6 in this appeal praying for permanent prohibitory injunction restraining the Defendants or anyone claiming through them for transferring or alienating A schedule property. Further, the permanent prohibitory injunction was sought against the Defendant regarding possession and enjoyment of property by Plaintiff. The Defendant had filed I.A.No.IV under Section 8 1 of Arbitration and Conciliation Act, 1996 hereinafter referred to as Act on 09.05.2014, praying to pass an order referring the parties to the arbitration for adjudication of the disputes raised by the Plaintiff in the Suit. The application was number accompanied by retirement deed and partnership deed. On 12.05.2014, the original retirement deed and the partnership deed were produced by the Defendant along with the list. The companynter affidavit to the application I.A. No. IV was also filed by the Plaintiff. The Learned District Judge heard the I.A.No.IV as well as the objections raised by the Plaintiff and by an order dated 27.05.2014, pass the following order A.No. IV filed under Section 8 1 of the Arbitration and Conciliation Act, 1996 by the defendants is allowed. The parties to the suit are referred to the Arbitration to settle their disputes and differences, in view of the Arbitration Agreement. The suit of the plaintiffs stands disposed off accordingly. Learned Counsel appearing for appellants in support of this appeal raised following submissions The application I.A.No.IV of 2014 praying for referring the matter to arbitration was number accompanied by the original retirement deed dated 25.07.2005 and partnership deed dated 05.04.2006, hence the application was liable to be dismissed under Section 8 2 and Learned District Judge companymitted error in allowing the application. According to Section 8 2 of the Act, it is mandatory to file the original arbitration agreement or a duly certified companyy thereof along with the application seeking reference to the arbitration. All the parties to the suit were number parties to the arbitration agreement as claimed in retirement deed and partnership deed. Hence, dispute companyld number have been refereed to the arbitrator. The firm being an unregistered firm, numberreference to the arbitration can be made with regard to the dispute relating to unregistered firm. Learned companynsel appearing for respondents have refuted the submissions and companytends that Learned District Judge after companysidering all aspects of the matter have rightly made the reference to the arbitrator. It is submitted that there was clear arbitration agreement in the retirement deed as well as in the partnership deed as has been numbered by District Judge and the suit companyld number have proceeded. All the Plaintiffs as well as Defendant Nos. 1 to 4 and Defendant No. 5 were parties to the arbitration agreement either personally or claiming through the person who was party to the agreement. The Defendant No. 6 has number inherited any right in the partnership firm and was unnecessarily impleaded by the Plaintiff. Mere presence of Defendant No.6 as one of the Defendants does number preclude the implementation of arbitration agreement. With regard to number-filing of retirement deed and partnership deed along with application I.A.No. IV of 2014, two submissions have been raised. Firstly, it is companytended that the Plaintiff themselves has filed both retirement deed and partnership deed along with the list of documents and having admitted both retirement deed and partnership deed, number-filing along with the application I.A.No. IV was inconsequential. Secondly, the Defendant themselves immediately after three days of filing their I.A.No. IV of 2014 had filed the original retirement deed and partnership deed on 12.05.2014 and at the time the matter was companysidered by District Judge, original deeds were on the record. Hence, the application I.A.No. IV was number liable to be rejected on this ground. There is numbersuch provision which prohibits the adjudication of dispute by arbitration regarding an unregistered partnership firm. We have companysidered the submissions of learned companynsel for the parties and perused the records. From the pleadings on records and submissions made, following three issues arises for companysideration Whether number-filing of either original or certified companyy of retirement deed and partnership deed along with application I.A.No. IV dated 09.05.2014 entailed dismissal of the application as per section 8 2 of 1996 Act. Whether the fact that all the parties to the suit being number parties to the retirement deed partnership deed, the Court was number entitled to make the reference relying on arbitration agreement. Whether dispute pertaining to unregistered partnership deed cannot be referred to an arbitration despite there being arbitration agreement in the deed of retirement partnership deed. ISSUE NO. 1 Two facts which emerged from record in this respect need to be numbered. Firstly, the plaintiffs in their plaint of O.S.No. 5 of 2014 have referred to and admitted the retirement deed dated 25.07.2005 and partnership deed dated 05.04.2006 in para 5 of the plaint. The plaintiffs themselves have filed the photocopies of deed of retirement dated 25.07.2005 as the document number 6 in the list and photocopies of partnership deed dated 05.042006 as document number 7 as have been numbered in para 23 of the District Judge judgment. Further, although initially the application filed by Defendant A.No. IV dated 09.05.2014 was number accompanied by companyy of retirement deed and partnership deed. The Defendant on 12.05.2014 filed the original retirement deed and partnership deed along with the list. It is useful to numbere the findings recorded by District Judge in the above companytext in paragraph 39 which is to the following effect The materials on record clearly goes to show that I.A.No. IV was filed by the defendants on 09.05.2014. It is true that the application was number accompanied by the Retirement Deed and the Partnership Deed either the originals or the certified companyies. On 12.05.2014 the original Retirement Deed and the Partnership Deed were produced by the defendants along with the list. Section 8 which falls for companysideration in the present case provides as follows Power to refer parties to arbitration where there is an arbitration agreement- A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies number later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. The application referred to in sub-section 1 shall number be entertained unless it is accompanied by the original arbitration agreement or a duly certified companyy thereof. Notwithstanding that an application has been made under sub-section 1 and that the issue is pending before the judicial authority, an arbitration may be companymenced or companytinued and an arbitral award made. The appellants submit that sub-section 2 of Section 8 provides that the application referred to in sub-section 1 shall number be entertained unless it is accompanied by the original arbitration agreement or a duly certified companyy thereof. They submit that admittedly with the application I.A.No. IV filed on 09.05.2014, original or certified companyy of the Retirement Deed and Partnership Deed was number filed. Learned Counsel to the appellants also placed reliance on a judgment of this companyrt reported in 2008 2 SCC 602, Atul Singh Othes Vs. Sunil Kumar Singh Others. In the above case, defendant had moved a petition on 28.02.2005 praying for referring the dispute to arbitration. The Trial Court had dismissed the petition on the ground that the predecessor in interest of the plaintiff was number party to the Partnership Deed executed on 17.02.1992. Hence the main relief being declaration of the deed to be void which companyld have been granted only by the Civil Court, the dispute companyld number be referred. Defendant filed Civil Revision which was allowed by the High Court. One of the submissions made before this companyrt was that as per sub-section 2 of Section 8 , the application companyld number have entertained unless it was accompanied by original arbitration agreement or duly certified companyy thereof. This companyrt held that there is numberwhisper in the petition that the original agreement or a duly certified companyy is being filed. There was number companypliance of Section 8 2 . Hence the reference companyld number have been made. Following was stated by this companyrt in paragraph 19 There is numberwhisper in the petition dated 28.02.2005 that the original arbitration agreement or a duly certified companyy thereof is being filed along with the application. Therefore, there was a clear numbercompanypliance with sub-section 2 of Section 8 of the 1996 Act which is a mandatory provision and the dispute companyld number have been referred to arbitration. Learned companynsel for the respondent has submitted that a companyy of partnership deed was on the record of the case. However, in order to satisfy the requirement of sub-section 2 of Section 8 of the Act, Defendant 3 should have filed the original arbitration agreement or a duly certified companyy thereof along with the petition filed by him on 28.02.2005, which he did number do. Therefore, numberorder for referring the dispute to arbitration companyld have been passed in the suit. It is relevant to numbere that in Atul Singhs case Supra , the submission of respondent was numbericed that the companyy of the Partnership Deed was on the record of the case, but the Court has number proceeded to examine as to when such companyies are already on record what is the effect. In this companytext, the reference is made to judgment of this Court in 2007 7 SCC 737, Bharat Sewa Sansthan Vs. U.P.Electronics Corporation Ltd. In the above case, two judge bench of this Court has held that photocopies of lease agreement companyld be taken on record under Section 8 for ascertaining the existence of arbitration clause. Following was stated in paragraph 24 The respondent Corporation placed on record of the trial companyrt photocopies of the agreements along with an application under Section 8 1 of the Arbitration Act. The High Court, in our view, has rightly held that the photocopies of the lease agreements companyld be taken on record under Section 8 of the Arbitration Act for ascertaining the existence of arbitration clause. Thus, the dispute raised by the appellant Sansthan against the respondent Corporation in terms of the arbitration clause companytained in the lease agreement is arbitral. In the case of Atul Singh Supra , which was also a judgment of two Judge Bench, earlier judgment in Bharat Sewa Sansthan was number cited. However, for purposes of this case, we need number enter into the issue as to whether there is a companypliance of section 8 2 if photocopies of the arbitration agreement is already on the record and number disputed by the parties. There is one another aspect of the matter which is sufficient to uphold the order of the District Judge. Section 8 2 uses the phrase shall number be entertained. Thus, what is prohibited is the entertainment of the application unless it is accompanied by the original arbitration agreement or a duly certified companyy thereof. The word entertained has specific meaning in P. Ramanatha Aiyars Advanced Law Lexicon word entertained has been defined as To bear in mind or companysider, esp, to give judicial companysideration to the Court then entertained motions for companytinuance . To amuse or please. To receive a person as a guest or provide hospitality to a person . The expression entertain means to admit a thing for companysideration and when a suit or proceeding is number thrown out in limine but the Court receives it for companysideration and disposal according to law it must be regarded as entertaining the suit or proceeding, numbermatter whatever the ultimate decision might be. The Blacks Law Dictionary also defines this word entertain as follows To bear in mind or companysideresp., to give judicial companysideration to the companyrt then entertained motions for companytinuance In 1971 3 SCC 124, Hindusthan Commercial Bank Ltd. Vs. Punnu Sahu Dead through Legal Representatives, the word entertained came for companysideration as occurring in Order 21, Rule 90, Proviso of Civil procedure Court. Para 2 of the Judgment numberices the amended Proviso which was to the following effect The amended proviso with which we are companycerned in this appeal reads thus Provided that numberapplication to set aside a sale shall be entertained- a upon any ground which companyld have been taken by the applicant on or before the date on which the sale proclamation was drawn up and Unless the applicant deposits such amount number exceeding twelve and half percent of the sum realised by the sale or furnishes such security as the Court may, in its discretion, fix except when the Court for reasons to be recorded dispense with the requirements of this clause Provided further that numbersale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. The companytention of the appellant was that word entertain refers to initiation of the proceedings and number to the stage when the Court takes up the application for companysideration. The High Court had rejected the said companytention. The above view of the High Court was approved by this companyrt in paragraph 4 of the judgment. Following was stated Before the High Court it was companytended on behalf of the appellant and that companytention was repeated in this companyrt, that Clause b of the proviso did number govern the present proceedings as the application in question had been filed several months before that clause was added to the proviso. It is the companytention of the appellant that the expression entertain found in the proviso refers to the initiation of the proceedings and number to the sage when the Court takes up the application for companysideration. This companytention was rejected by the High Court relying on the decision of that Court in Kundan Lal Vs. Jagan Nath Sharma, AIR 1962 All 547. The sameview had been taken by the said High Court in Dhoom Chand Jain V. Chamanlal Gupta, AIR 1962 All 543 and Haji Rahim Bux and Sons V. Firm Samiullah and Sons, AIR 1963 All 320 and again in Mahavir Singh V. Gauri Shankar, AIR 1964 All 289. These decisions have interpreted the expression entertain as meaning adjudicate upon or proceed to companysider on merits. This view of the High Court has been accepted as companyrect by this Court in Lakshmiratan Engineering Works Ltd. V. Asst. Comm., Sales tax, Kanpur, AIR 1968 SC 488. We are bound by that decision and as such we are unable to accept the companytention of the appellant that Clause b of the proviso did number apply to the present proceedings. Another relevant judgment is 1998 1 SCC 732, Martin and Harris Ltd. Vs. VIth Additional District Judge and others. In the above case Section 21 1 proviso of U.P. Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972 13 of 1972 word entertained came for companysideration. The proviso to Section 21 1 was to the following effect Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the companymencement of the Act, numberapplication shall be entertained on the grounds, mentioned in clause a unless a period of three years has elapsed since the date of such purchase and the landlord has given a numberice in that behalf to the tenant number less than six months before such application, and such numberice may be given even before the expiration of the aforesaid period of three years. In the above case, the application under Section 21 1 was filed by the landlord before expiry of period of three years from the date of purchase. It was held by this Court that word entertained as employed in first proviso under Section 21 1 companyld number mean institution of such proceedings. In Para 9 and 10, following was laid down Even that apart there is an internal indication in the first proviso to Section 21 1 that the legislature has made a clear distinction between entertaining of an application for possession under Section 21 1 a of the Act and filing of such application. So far as the filing of such application is companycerned it is clearly indicated by the legislature that such application cannot be filed before expiry of six months from the date on which numberice is given by the landlord to the tenant seeking eviction under Section 21 1 a of the Act. The words, the landlord has given a numberice in that behalf to the tenant number less than six months before such application, would naturally mean that before filing of such application or moving of such application before the prescribed authority numberice must have preceded by at least six months. Similar terminology is number employed by the legislature in the very same proviso so far as three years period for entertaining such application on the grounds mentioned in clause a of Section 21 1 a stage must be reached when the companyrt applied its judicial mind and takes up the case for decision on merits companycerning the grounds for possession mentioned in clause a of Section 21 1 of the Act. Consequently on the very scheme of this Act it cannot be said that the word entertain as employed by the legislature in the first proviso to Section 21 1 of the Act would at least mean taking companynizance of such an application by the prescribed authority by issuing summons for appearance to the tenant-defendant. It must be held that on the companytrary the term entertain would only show that by the time the application for possession on the grounds mentioned in clause a of Section 21 1 is taken up by the prescribed authority for companysideration on merits, atleast minimum three years period should have elapsed since the date of purchase of the premises by the landlord. Leaned Senior Counsel, Shri Rao, for the appellant then invited our attention to two decisions of this Court in the case of Lakshmiratan Engineering Works Ltd. V. Asstt. Commr. Judicial I, Sales Tax and Hindusthan Commercial bank Ltd V. Punnu Sahu. In Lakshmiratan Engineering this Court was companycerned with the meaning of the word entertain mentioned in the proviso to Section 9 of the U.P. Sales Tax Act, 1948. Hidayatullah,J., speaking for the Court observed in the light of the statutory scheme of Section 9 of the said Act that the direction to the Court in the proviso to Section 9 was to the effect that the Court shall number proceed to admit to companysideration an appeal which is number accompanied by satisfactory proof of the payment of the admitted tax. In the case of Hindusthan Commercial Bank the term entertain as found in the proviso to Order XXI Rule 90 Code of Civil Procedure CPC fell for companysideration of the Court. Hegde,J., speaking for a Bench of two learned Judges of this Court in this companynection observed that the term entertain in the said provision means to adjudicate upon or to proceed to companysider on merits and did number mean initiation of proceeding . The aforesaid decisions, in our view, clearly show that when the question of entertaining an application for giving relief to a party arises and when such application is based on any grounds on which such application has to be companysidered, the provision regarding entertaining such application on any of these grounds would necessarily mean the companysideration of the application on the merits of the grounds on which it is base. In the present case, therefore, it must be held that when the legislature has provided that numberapplication under Section 21 1 a of the Act shall be entertained by the prescribed authority on grounds mentioned in clause a of Section 21 1 of the Act before expiry of three years from date of purchase of property by the landlord it must necessarily mean companysideration by the prescribed authority of the grounds mentioned in clause a of Section 21 1 of the Act on merits. In the present case as numbered above, the original Retirement Deed and Partnership Deed were filed by the defendants on 12th May and it is only after filing of original deeds that Court proceeded to decide the application I.A.No. IV. Section 8 2 has to be interpreted to mean that the companyrt shall number companysider any application filed by the party under Section 8 1 unless it is accompanied by original arbitration agreement or duly certified companyy thereof. The filing of the application without such original or certified companyy, but bringing original arbitration agreement on record at the time when the Court is companysidering the application shall number entail rejection of the application under Section 8 2 . In the present case it is relevant to numbere the Retirement Deed and Partnership Deed have also been relied by the plaintiffs. Hence, the argument of plaintiffs that defendants application I.A.No. IV was number accompanied by original deeds, hence, liable to be rejected, cannot be accepted. We are thus of the view that the appellants submission that the application of defendants under Section 8 was liable to be rejected, cannot be accepted. ISSUE NO. 2 The relevant facts and pleadings of the parties have been marshaled by the trial companyrt. Trial Court has returned the findings that the plaintiff number 1 represented by his mother and next friend was party to the Retirement Deed. The mother of plaintiff namely Smt. Usha A. Bhakta has signed the retirement deed for self and on behalf of her minor children, the plaintiff No. 1. Plaintiff No. 2 and 3 claiming their rights through one of the partners Shri Gangadhar Bhakta, their father, who was party to the retirement deed. In paragraph 23 of the judgment, Learned District Judge had returned the following findings therefore, the plaintiff number 1 represented by his mother and next friend Smt. Usha A. Bhakta is a party to the Retirement Deed and plaintiffs 2 and 3 are claiming their rights through one of the partner late Shri Gangadhar Bhakta, who was also a party to the Retirement Deed. The Defendants 1 to 5 are also the parties to this Retirement Deed. Therefore, except defendant No. 6 all others are either personally or through the persons from whom they are claiming the right are parties to the Deed of Retirement Deed dated 25.07.2005 Thus it was only defendant number 6 who was number party to the retirement deed or partnership deed. Both 5th and 6th defendants are issues of late M. Prakashchandra Bhakta. Learned Counsel for the respondents have submitted that it was case of the plaintiffs themselves that by virtue of Will executed by Prakashchandra Bhakta it was only defendant number 5 who became entitled to benefits of partnership and defendant number 6 was number given any share. The plaintiffs admittedly are parties to the arbitration agreement as numbered above. It does number lie in their mouth to companytend that since one of the defendants whom they have impleaded was number party to the arbitration agreement, numberreference can be made to the arbitrator. In the facts of the present case, it cannot be said that merely because one of the defendants i.e. defendant number 6 was number party to the arbitration agreement, the dispute between the parties which essentially relates to the benefits arising out of Retirement Deed and Partnership deed cannot be referred. Learned District Judge has numbered that defendant number6 has number inherited any share either in Partnership deed or in the schedule property and hence there is numberquestion of bifurcation of either cause of action or parties. Relevant findings in this companytext have been returned by District Judge in paragraph 40 to the following effect 40It is only defendant No. 6 was number the party to either the Retirement Deed or the Partnership Deed where there is an Arbitration Clause to refer all the disputes and differences to the Arbitration. Even according to the plaintiffs defendant No. 6 is number a Partner number she is a party to any of the documents and further as per the Will executed by her father late Shri Prakash Chandra Baktha, she has number inherited any right or share either in the Partnership Deed or in the Schedule property. Moreover, the Plaint schedule property according to the plaintiffs is the property of the Partnership Firm M s. Neo Subhash Beedi Works. Therefore, there is numberquestion of bifurcation of either cause of action or parties if the same is to be referred to the Arbitration as per the Arbitration Clause formed in the Retirement Deed dated 25.07.2005 and the Partnership Deed dated 05.04.2006 We fully endorse the above view taken by Learned District Judge. ISSUE NO. 3 The submission by the petitioner is that partnership being an unregistered partnership, numberreference can be made to the arbitration. In the present case there is numberdispute between the parties that both Retirement deed and Partnership deed companytain an arbitration clause. In Retirement deed which had been signed by retiring partners, companytinuing partners and companycurring partners, following was stated in clause 8 In case of any dispute or difference arising between the parties, regarding the interpretation of the companytents of this Deed of Retirement or any other matter or transactions touching the said retirement, it shall be referred to an arbitration under the provisions of the Arbitration Conciliation Act, 1996 Further, in partnership deed which was 05.04.2006, clause 26 companytains an arbitration clause which is to the following effect ALL DISPUTES arising between the partners or their legal representatives about the interpretation of this Deed or their rights and liabilities there under or in relation to any other matters whatsoever touching the partnership affairs shall be decided by an Arbitration as provided by the Arbitration Conciliation Act, 1996.

Leave granted. This is an appeal filed by the Punjab Waqf Board who was the plaintiff in a suit for declaration and injunction. The High Court in the second appeal had summarily dismissed the appeal on the ground that the second appeal was companycluded by the companycurrent findings of fact arrived at by the companyrts below. From the judgment itself, it would appear that the Board had failed to prove that the respondents have encroached any land belonging to the appellant-Board. In view of the aforesaid position, the second appeal was summarily dismissed by the High Court. In our view, the High Court ought number to have dismissed the suit summarily merely on the ground that the second appeal was companycluded by the companycurrent findings of fact. The dispute that was raised by the parties before the companyrt was whether the respondent had encroached upon any land belonging to the appellant-Board. Therefore, it cannot be in dispute that the dispute was in respect of the encroachment of the suit land. Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial companyrt but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the companyrt to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 of the CPC. The appellate companyrt found that the trial companyrt did number take into companysideration the pleadings of the parties when there was numberspecific denial on the part of the respondents regarding the allegations of unauthorized possession in respect of the suit land by them as per paragraph 3 of the plaint. But the only companytroversy between the parties was regarding demarcation of the suit land because land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial companyrt was wrongly rejected. It is also number in dispute that even before the appellate companyrt, the appellant-Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was number at all gone into by the High Court while dismissing the second appeal summarily.

C. Lahoti, J. Leave granted in both petitions. The appellant is a companyoperative sugar factory manufacturing sugar from sugarcane. On 17.11.1992 an agreement was entered into between the appellant and the respondent for design, manufacture, procurement and supply of machinery and equipments for moderanisation with companytinuous fermentation process based on Encillium Process, developed and patented by Council for Scientific and Industrial Research, New Delhi and National Chemical Laboratory, Pune. Disputes arose between the parties. The agreement dated 17.11.1992 companytained an arbitration clause pursuant whereto the disputes were referred for arbitration by two arbitrators, one appointed by each of the parties. By their award dated 20th June, 1999, the learned Arbitrators directed an amount of Rs.151.97 lacs to be paid by the respondent to the appellant in full and final settlement of all claims by and between the parties. The award was filed in the Court of the Civil Judge, Senior Division, Sangamner. Both the parties preferred objections against the award. After hearing the learned companynsel for the parties, by its judgment dated 6.5.2000 the learned Civil Judge directed the award to be remitted back to the learned arbitrators for rendering a fresh award companysistently with the directions given by the learned Civil Judge. The appellant preferred a revision laying challenge to the direction of the Court remitting the award while the respondent preferred an appeal submitting that on the view taken by the learned Civil Judge, Senior Division the award itself should have been set aside and there was numberoccasion for remitting the award to the arbitrators. The learned Single Judge of the High Court heard the revision and the appeal together. By the impugned order the learned Judge has dismissed the civil revision and allowed the appeal. As a result the order of the learned Civil Judge, Senior Division remitting the award to the arbitrators has been set aside and the award to the extent of Rs.107.54 lacs and the interest thereon in the sum of Rs.28.74 lacs has been set aside. The rest of the award has been made a rule of the Court. Feeling aggrieved by the impugned judgment of the High Court these petitions have been filed by the appellants seeking leave to file appeals by special leave. We have heard the learned companynsel for the parties at length who have apart from making legal submissions carried the Court through the pleadings, the relevant companyrespondence between the parties, several documents and the proceedings before the arbitrators. However, it is number necessary for us to deal with the same in very many details as we have formed an opinion that the impugned judgment of the High Court deserves to be set aside and the order of the learned Civil Judge deserves to be restored. A perusal of the judgment of the learned Civil Judge, Senior Division shows the learned Judge having formed an opinion that the award suffered from an error apparent on its face. There was an omission on the part of the learned arbitrators to companysider a few relevant documents available on record which in the opinion of the learned Civil Judge if taken into companysideration the finding of the arbitrators would number have been what it is. The learned Civil Judge also formed an opinion that there was a violation of the principles of natural justice inasmuch as the parties were number afforded a hearing on the issue on which the learned arbitrators had based their decision. The learned Civil Judge was of the opinion that on totality of the facts and circumstances of the case instead of setting aside the award the same deserved to be remitted to the arbitrators with the request to render the award afresh. The High Court has however formed an opinion that to the extent to which the award has been set aside by the High Court it was beyond the scope of reference to the arbitration and hence there was numberquestion of the parties being afforded an opportunity of re-arguing the same question before the arbitrators as the arbitrators companyld number assume jurisdiction over an issue which was number referred to them. On 19th October, 1994 the appellant served a numberice on the respondent setting out several disputes arising between the parties. One of the disputes raised therein reads as under Till today, we have spent Rs.107.54 lakhs on the said plant, which it is abundantly clear that will number give required results as agreed number even optimum to the numberms laid down by the excise rules. Therefore, Rs.107.54 lakhs will be straight way loss to my client and there will be also loss of interest at the rate of 18 per year from 1st May, 1993 onwards. In the circumstances my clients have instructed me to call upon you which I hereby do to reimburse the loss suffered by my clients to the tune of Rs.237.83 lakhs within a week from today. On 26.12.1994 once again a numberice was served by the appellant on the respondent appointing its own arbitrator calling upon the respondent to appoint its and in the companytents of the numberice it was specifically stated that they were the questions, disputes and differences mentioned in the numberice dated 19.10.1994 which shall be referred to the arbitration. During the pendency of the arbitration proceeding, on 24th July, 1995, a memorandum of understanding was arrived at between the parties which suggests that it was the dispute referred to in the numberice dated 19.10.1994 for which trial-runs were being companyducted. The numberice dated 12.9.1995 served by the appellant on the respondent reiterates that it was the failure on the part of the respondent to manufacture and supply the plant and companyply with the terms of agreement that had caused total failure entitling the appellant for refund of total amount of advance paid by the appellant to the respondent. In its reply dated 30.9.1995 the respondent had told the appellant that the matter was already before the arbitrators and the respondent reserved the right to file an appropriate written statement before the arbitrator disputing the claim made by the appellant and it was number necessary to give a detailed reply in response to the appellants numberice. We have also perused the statements of claim and their responses filed by the parties before the arbitrators. We find that the claim for Rs.107.54 lacs and the interest thereon raised by the appellant against the respondent was very much before the arbitrators and the parties also proceeded on the assumption that this dispute was before the arbitrators and liable to the adjudicated upon by them. Issues number 10, 11 and 12 framed by the arbitrators are Does the claimant prove that it spent Rs.107.54 lacs on the plant and the plant has gone waste for number getting the guaranteed performance? Is the claimant entitled to Rs.107.54 lacs as actual damages? Is the claimant entitled to Rs.45.46 lacs as interest on the said amount of Rs.107.54 lacs? The issues are widely worded and include within their sweep the dispute arising for decisions and as was adjudicated upon by the award. The arbitration agreement between the parties opens as under 18.0 Arbitration If at any time there should be any question, dispute or difference between the parties in respect of any matter arising out of or in relation to this agreement, either party may give to the other party numberice in writing of the existence of such question, dispute or differences and the same shall be referred to arbitration In Renusagar Power Co. Ltd. Vs. General Electric Company Anr., 1984 4 SCC 679, this Court has held Whether a given dispute inclusive of the arbitrators jurisdiction companyes within the scope or purview of an arbitration clause or number primarily depends upon the terms of the clause itself it is a question of what the parties intend to provide and what language they employ. Expressions such as arising out of or in respect of or in companynection with or in relation to or in companysequence of or companycerning or relating to the companytract are of the widest amplitude. In our opinion, it is the substance of the claim made before arbitrators which has to be seen. The Court would number companystrue the nature of claim by adopting too technical an approach or by indulging into hair-splitting. Else the whole purpose behind holding arbitration proceedings as an alternate to civil companyrts forum would stand defeated. We have carefully perused the arbitration clause and the disputes referred and adjudicated upon by the arbitrators. We find it difficult to sustain the finding of the High Court that the arbitrators had determined an issue which was beyond the scope of reference to the arbitration. The disputes did arise out of the companytract between the parties and the arbitrators were seized of the disputes within the scope of reference to them. The parties have also joined in the companytest before the arbitrators having understood the scope of companytroversy, as already stated hereinabove. Clause c of sub-section 1 of Section 16 companytemplates an award being remitted to the arbitrators or Umpire for reconsideration upon such terms as the Court thinks fit where an objection to the legality of the award is apparent upon the face of it. As held recently by this Court in Ramachandra Reddy Co. Vs. State of A.P. Ors. 2001 4 SCC 241 the jurisdiction to remit an award by the Court to the arbitrators is a discretionary jurisdiction companyferred on the Court and so long as the said discretion has been judicially exercised an Appellate Court would number be justified in interfering with the exercise of discretion unless the discretion is misused.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Charlie, 2008 BCCA 44 Date: 20080131 Docket: CA035344 Between: Regina Appellant And Martin Patrick Charlie Respondent Before: The Honourable Madam Justice Rowles The Honourable Madam Justice Saunders The Honourable Mr. Justice Frankel P.A. Eccles Counsel for the Appellant L.K. Mirsky Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia 15 January 2008 Place and Date of Judgment: Vancouver, British Columbia 31 January 2008 Written Reasons by : The Honourable Mr. Justice Frankel Concurred in by: The Honourable Madam Justice Rowles The Honourable Madam Justice Saunders Reasons for Judgment of the Honourable Mr. Justice Frankel: Introduction [1] The Crown seeks leave to appeal, and if leave is granted, appeals an 18-month conditional sentence order imposed on Mr. Charlie by Judge Gulbransen, of the Provincial Court of British Columbia, following a plea of guilty to a charge of possession of cocaine for the purpose of trafficking.  The sentencing judge’s reasons are indexed as 2007 BCPC 296. [2] When Mr. Charlie committed this offence, he was serving a first conditional sentence imposed as a result of his conviction on drug-related charges. [3] The Crown raises two grounds.  First, it submits that the sentencing judge erred in treating the fact that the original conditional sentence was reinstated after the commission of the present offence as a matter “favourable” to Mr. Charlie.  Second, it says that in considering the application of s. 718.2(e) of the Criminal Code , R.S.C. 1985, c. C-46, the sentencing judge placed undue weight on Mr. Charlie’s aboriginal background.  Section 718.2(e) provides: A court that imposes a sentence shall also take into consideration the following principles: (e)      all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. Factual Background [4] In the early morning hours of October 16, 2005, a member of the Royal Canadian Mounted Police stopped a vehicle being driven by Mr. Charlie for making a left turn without signalling.  The officer saw a cellular telephone on the passenger seat.  Upon checking Mr. Charlie’s name by means of a police computer, the officer discovered that Mr. Charlie was serving a conditional sentence with a condition that he not possess a cellular telephone, or be in a vehicle with one.  At this point, Mr. Charlie was detained for breaching the conditional sentence order.  In searching Mr. Charlie’s vehicle, the officer found 30 packages of rock cocaine (total weight – 6.65 grams); 16 packages of heroin (total weight – 3.55 grams); three packages of methamphetamine (total weight – 0.75 grams); and two cellular telephones.  Mr. Charlie had $760.00 in his pocket, and a further $320.00 in his wallet.  The drugs had a value of approximately $1,200.00.  Mr. Charlie was released by the police on a promise to appear.  Sometime later, an information was sworn charging him with three counts of possession of a controlled substance for the purpose of trafficking; i.e., a separate count for each drug. [5] As the sentencing judge noted in paragraph 1 of his reasons, the facts disclosed that Mr. Charlie: [W] as part of an operation which is colloquially called a dial-a-dope operation; he was the driver who would go places and deliver the drugs to people who phoned for them. He was kind of a travelling salesman for drugs, certainly not the main operator of the business. [6] On the day Mr. Charlie was stopped he was subject to a nine-month conditional sentence order imposed on April 8, 2005, in respect of his conviction on three drug charges arising out of his involvement in another dial-a-dope operation.  He spent 14 weeks in custody before this sentence was imposed.  That is his only previous conviction. [7] The April 8, 2005 order contained a number of conditions in addition to the ones prohibiting Mr. Charlie from possessing a cellular telephone or being in a motor vehicle in which there is a cellular telephone.  These included a house arrest provision requiring Mr. Charlie to remain inside his residence 24 hours a day except for work or school related purposes, medical appointments, etc.  This curfew was in effect for five months.  While subject to this curfew, Mr. Charlie was required to present himself at the front door of his residence at the request of a police or corrections officer.  This curfew expired approximately five weeks before Mr. Charlie was again found trafficking drugs. [8] After receiving the police report regarding the events of October 16, 2005, the Crown obtained a warrant for Mr. Charlie’s arrest.  Mr. Charlie turned himself in on December 8, 2005.  He appeared that day before a judge of the Provincial Court who released him on $2,000.00 cash bail, with conditions akin to those in the April 8, 2005 conditional sentence order, including a curfew. [9] On April 25, 2006, Mr. Charlie appeared before a judge of the Provincial Court pursuant to s. 742.6 of the Criminal Code on the breach allegation.  Mr. Charlie admitted to the breach.  The judge reinstated the conditional sentence order and extended it to May 30, 2006.  The house arrest condition was varied so that it remained in effect throughout the term of the extended order. [10] The drug charges arising from the events of October 16, 2005, came before the Provincial Court on April 18, 2007.  Mr. Charlie entered a plea of guilty to possession of cocaine for the purpose of trafficking.  At the request of his counsel, sentencing was adjourned for the preparation of a pre-sentence report and a technical suitability report with respect to the use of electronic monitoring. [11] The sentencing hearing took place on July 26, 2007.  The parties agreed that, although Mr. Charlie had pleaded guilty only to the cocaine-related charge, the other drugs seized from his vehicle were to be considered by the sentencing judge in deciding on the appropriate punishment. [12] At the time of sentencing, Mr. Charlie was 25 years old.  He is a member of the Hesquiaht First Nation, located near Tofino, on Vancouver Island.  As noted by the sentencing judge, Mr. Charlie’s background is a “sad one.”  He was raised by a single mother who had a drinking problem, and was physically abused by his stepfather.  He has never met his father. [13] Under the heading “Attitude / Understanding Regarding the Offence” the pre-sentence report states: Martin advised that a former associate introduced him into the drug trade.  He advised that for a few years it became part of his lifestyle.  He advised that the lure of easy money made it difficult to quit dealing drugs.  Martin advised that he has made significant changes in his associates and priorities.  He expressed a strong desire to refrain from further criminal activity. [14] The report further indicates that Mr. Charlie resides with his partner in Cloverdale, where they live in a basement suite with their two-year-old daughter.  His partner describes their relationship as “positive and supportive”, and Mr. Charlie as a “committed father.” [15] Mr. Charlie has a Grade 12 education.  At the time the report was prepared he had been employed for three months with a construction company.  The owner of the company described Mr. Charlie as a “reliable worker.”  Letters provided to the sentencing judge confirm that Mr. Charlie is a member in good standing of a trade union, earning approximately $20.00 per hour, plus benefits. [16] Under the heading “Summary and Proposed Intervention”, the report states, in part: Martin advised he has made significant changes in his lifestyle and is confident he will not return to criminal activities.  He is gainfully employed in the construction trade and has the opportunity to continue with a company that he enjoys working for. Martin expressed a desire not to be away from his family.  He added that being placed on a restrictive curfew for the period of his bail supervision has not been problematic for him.  Family members support Martin’s lifestyle changes and would like him to continue attending regular family gatherings and activities. Although Martin has a history of alcohol abuse, significant others relate that he rarely consumes the substance and abstains from drug use.  Should Martin receive a community disposition he may be directed to complete the CORE Substance Abuse Management program offered by community corrections.  The next program offered at the Langley Office is scheduled for September, 2007. The report notes that Mr. Charlie’s residence meets the requirements for electronic monitoring, and recommends a number of conditions that would be suitable should a non-custodial sentence be imposed. [17] The Crown’s position was that a period of actual incarceration in the range of 18 months to two years was appropriate.  Crown counsel submitted that the fact that Mr. Charlie had become involved in a dial-a-dope operation for the second time while under a conditional sentencing order was an aggravating factor, and that deterrence should be given precedence over rehabilitation. [18] Mr. Charlie’s counsel submitted that a conditional sentence in the range of 18 months to two years less one day was appropriate.  She stressed that since October, 2005, Mr. Charlie’s has been focused on providing for his family.  She noted that he has the support of his family, friends, and employer. [19] While acknowledging that dial-a-dope operations involve serious criminal offences, the sentencing judge recognized that it was his responsibility to “craft a sentence which imposes a just sentence in these particular circumstances”:  para. 4.  In choosing to give rehabilitation primacy, the sentencing judge stated: [10]      I think society has, as a goal, that people raise families and raise children and form those units.  It is something that is very important for rehabilitation.  Those two factors, a job, a regular job, getting decent money, working hard and raising a family, having the support of a spouse are ways in which people live “normal” lives as opposed to the life that perhaps Mr. Charlie was living before.  That is a very strong signal to me that this man is well on the way to rehabilitation, has a strong potential for rehabilitation.  So I must, in these circumstances, give significant weight to that rehabilitation. [20] With respect to the fact that Mr. Charlie re-offended while subject to a conditional sentencing order, the sentencing judge stated: [11]      Then I have to consider, though, the fact that he was on a conditional sentence.  What can I do in relation to that?  I have to consider that because my normal practice is, “One conditional sentence and that's it, I’m not going to give another one.”  Most judges are fairly strict when people violate their conditional sentences. I note that Mr. Charlie’s conditional sentence wasn't terminated, that must mean something.  It is something favourable to him. [12]      One other thing that’s quite important in this case in terms of deciding whether a conditional sentence should be imposed is that would it endanger the community to release him on a conditional sentence?  Well, clearly, in my view, it would not.  For a man for the last 20 months or so, 21 months, has been working hard, looking after his family, demonstrating to all who can see him that he can lead a normal life and not commit any crimes, despite the fact that he committed a crime while on a CSO, shows me that he's changed his ways considerably and there is little likelihood that he’ll commit an offence in the future.  I can't truly predict the future. I’ve made mistakes in the past, I’ll make them again I’m sure. I don't know for sure he won’t commit another offence, but my judgment is, my assessment is the probabilities are, given that he’s got a family, he’s got work, he’s got the support of his friends, he's not in the drug lifestyle, it is unlikely he’ll commit further offences.  The only offences on his record are drug offences, so in those circumstances, those prerequisites are met. [Emphasis added] [21] With respect to s. 718.2(e) of the Criminal Code and Mr. Charlie’s aboriginal background, the sentencing judge said this: [16]      It seems to me that in looking at the various issues that I have to give weight to and sentencing principles in this case, is that Mr. Charlie's aboriginal background, unfortunate as it is, has been addressed by him personally in many significant ways.  He has a daughter that he wants to care for; he’s not going to, in any way, make that daughter’s life like his was.  He has a spouse whom he cares for; he's not going to make his spouse’s life like his mother’s life was.  He’s got a job.  He is not someone who is likely to go in and out of jail.  I think it's important to point out, it’s not as if aboriginal people are all oppressed people or problematic people, there are many excellent citizens who have aboriginal backgrounds, who’ve got good jobs and help people and work hard and never get in trouble.  His background is similar to the kinds of backgrounds that come up in this court very often with aboriginal people.  So it’s a long way of saying that I think it’s a very important factor in this sentence, despite his prior conviction, of his aboriginal background . [Emphasis added] [22] In conclusion, the sentencing judge gave the following reason for not sentencing Mr. Charlie to a period of actual incarceration: [17]      Having said all that, in my view the principles of sentencing can be met by imposing a conditional sentence, despite the prior conviction, given my confidence that Mr. Charlie is pretty well on the way to rehabilitation.  If I possibly can, I ought not to prevent that from continuing. [18]      Judges sometimes have to take chances.  This is the kind of case where I’m comfortable taking a chance.  As I said, I can’t predict the future very well, I can’t predict it, other than taking the probabilities into account, and the probabilities here look good. In my view it would be unjust not to impose a conditional sentence, given the fact that the prospect of rehabilitation is so great despite the other negative factors ; so for all those reasons I will impose a conditional sentence. [Emphasis added] [23] In the result, the judge sentenced Mr. Charlie to a period of incarceration of 18 months to be served in the community.  The order includes an 8:00 p.m. to 5:00 a.m. curfew that expired on January 26, 2008.  While the curfew was in effect, Mr. Charlie was subject to electronic monitoring.  He was required to present himself at the door of his residence when requested by a corrections officer, peace officer, or supervisor, to verify compliance with the electronic monitoring and curfew. Analysis Reinstatement of the Previous Conditional Sentencing Order [24] The Crown submits that the sentencing judge gave undue weight to the fact that Mr. Charlie’s previous conditional sentence had not been terminated.  It says it was not afforded an opportunity to address why the previous order was reinstated and that there was nothing before the sentencing judge as to why this occurred. [25] In my view, it cannot be said that the sentencing judge erred in the way he dealt with the reinstatement of the original conditional sentence.  Having regard to the entirety of the reasons for sentence, I take the sentencing judge’s comments as indicating only that he considered the fact that another judge had been prepared to permit Mr. Charlie to continue to serve his original sentence in the community.  He found this to be an indication of Mr. Charlie’s potential for rehabilitation.  In the end, it was Mr. Charlie’s actual positive efforts with respect to rehabilitation during the 21 months since his second apprehension that the sentencing judge considered to be a strong mitigating factor.  He was clearly entitled to take those efforts into account. Mr. Charlie’s Aboriginal Background [26] The Crown submits that the circumstances here are such that rehabilitation should not have “trumped” the principles of deterrence and denunciation.  While accepting that Mr. Charlie’s aboriginal background warrants consideration, the Crown says that the sentencing judge gave it undue emphasis.  As Mr. Charlie chose to re-involve himself in serious criminal activity while serving a conditional sentence for similar offences, the Crown says this is a case in which both aboriginal and non-aboriginal offenders should be treated alike.  In this regard, it points to the following passage from the judgment of Mr. Justice Iacobucci in R. v. Wells , [2000] 1 S.C.R. 207, 2000 SCC 10: 44        Let me emphasize that s. 718.2(e) requires a different methodology for assessing a fit sentence for an aboriginal offender; it does not mandate, necessarily, a different result .  Section 718.2(e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender.  Furthermore, in Gladue , as mentioned the Court stressed that the application of s. 718.2(e) does not mean that aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation, and separation (at para. 78).  As a result, it will generally be the case, as a practical matter , that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders ( Gladue , at para. 33).  Accordingly, I conclude that it was open to the trial judge to give primacy to the principles of denunciation and deterrence in this case on the basis that the crime involved was a serious one. [Underlining in original] [27] Dial-a-dope offences clearly fall on the “serious” end of the spectrum  Most recently, in R. v. Tran , 2007 BCCA 405, 245 B.C.A.C. 171, this Court, in allowing a Crown appeal, set aside a conditional sentence of two years less one day and substituted a sentence of two-years’ incarceration.  In so doing, Madam Justice Saunders stated: [34] This case involves a “dial-a-dope” cocaine marketing scheme “for profit only”.  Mr. Tran is not an addict.  He has a history of offences of similar nature.  This Court has discussed “dial-a-dope” circumstances in the past and noted that it is a more aggravated form of the drug business.  By its nature it has a degree of sophistication and marketing to sustain the business, indicating a significant level of committed endeavour, and it poses extra difficulty for police investigation.  Mr. Tran was a part of this scheme, even if he was not its main player. [35] Cocaine, as noted by courts repeatedly, is a highly addictive drug.  On a daily basis courts see the negative toll it takes on people who use it.  By engaging in the business of dispensing cocaine in an operation such as this, Mr. Tran has lent himself to misery in his community. And he has done so for profit when he has been earlier warned by the courts, through his prior conviction and incarceration, not to do so. [36]      In my view, notwithstanding his family circumstances, the sentence must speak to deterrence and denunciation.  I do not consider that the sentence, in the circumstances, accomplishes that goal. [28] However, as each case must be decided on its own facts, it is also clear that not all those convicted of drug offences committed while serving a conditional sentence need to be incarcerated. R. v. Bui , 2001 BCCA 471, 158 B.C.A.C. 21, is such a case.  Ms. Bui pleaded guilty to possession of four flaps (i.e., 1.6 grams) of cocaine for the purpose of trafficking.  These drugs were found during a search of her residence.  At the time, she was nearing the end of a 15-month conditional sentence for possession of heroin and cocaine for the purpose of trafficking.  Having been given one-year’s credit for time spent in pre-trial custody, she was sentenced to two years in jail. [29] On appeal, this Court substituted a conditional sentence of two years less one day.  In so doing, Saunders J.A., having determined that the sentencing judge had misapprehended the facts with respect to the extent of Ms. Bui’s involvement in trafficking, stated: [11]      What then is a fit sentence?  I agree with the sentencing judge that commission of an offence while on a conditional sentence is an aggravating factor.  In all but the rarest of cases I would not expect a conditional sentence to be followed by another conditional sentence.  This is, however, in my view, one of those rare cases. [12]      Ms. Bui has already endured what the trial judge said was equivalent to a year’s incarceration.  The tripling of the time spent illustrates that it was, in other words, “hard time” indeed.  This time undoubtedly would have specific deterrent effect upon Ms. Bui and general deterrent effect so far as the circumstances become known in the community.  Recognizing that, the efforts made towards rehabilitation by Ms. Bui since August 1999 [when she was arrested] and the investment of the community in that process, in my view, a second and likely last conditional sentence may be countenanced, in accordance with the provisions in the Criminal Code that direct the Courts to sentence other than to jail if such can be done in accordance with the principles of sentencing. [30] Whether Mr. Charlie’s sentence is “unfit” because too much emphasis was placed on his aboriginal background is an arguable point.  However, it is not one that I need decide because, even if the sentencing judge erred as alleged by the Crown, I would not interfere with the sentence he imposed. [31] Before being sentenced, Mr. Charlie spent some 21 months in the community following the commission of the present offence.  In light of the positive changes Mr. Charlie had made to his life, the sentencing judge was of the view that there was “little likelihood that he’ll commit an offence in the future.”  Another six months has passed since Mr. Charlie was sentenced.  There is no suggestion that Mr. Charlie has done other than continue to be a productive and law-abiding member of the community. [32] More than two years has passed since Mr. Charlie re-involved himself in drug trafficking.  Why this case has taken this long to reach this point is not entirely clear, and I attribute no fault to either party.  However, it is a fact that during this period Mr. Charlie has been subject to stringent conditions, and is a much different person today than he was in October, 2005. [33] This Court has been reluctant to allow a Crown sentence appeal and substitute a custodial sentence for a non-custodial one when to do so would interfere with an offender’s positive efforts at rehabilitation.  Such was the situation in R. v. Morphy (1974), 21 C.C.C. (2d) 62 (B.C.C.A.).  Mr. Morphy was convicted of possession of marihuana for the purpose of trafficking.  Having spent three months in pre-trial custody, he was sentenced to pay a fine, and placed on probation for three years.  The Crown’s appeal came on for hearing six months later.  Although of the view that a jail sentence should have been imposed, this Court declined to do so.  In this regard, Mr. Justice McFarlane stated (at 64): Having regard to the circumstances outlined and particularly the fact that this respondent, with a favourable pre-sentence report, continues in steady employment and is not likely to repeat his offence, I think the Court should be most reluctant to send him to prison now. [34] R. v. Nelson , [1992] Y.J. No. 171 (C.A.) (QL), is also apposite.  Mr. Nelson had been sentenced to three months in jail to be followed by three-years’ probation.  The Crown’s sentence appeal was not heard until six months later.  In dismissing the appeal, Mr. Justice Hinds said: [37]      Absent special circumstances, the court is often reluctant to reincarcerate a person, particularly if that person is satisfactorily performing terms of a probation order and is making progress towards rehabilitation.  In this case there was an opportunity for the sentence appeal to have been brought on for hearing in June, 1992 when a division of this Court was sitting in Whitehorse, or in July or August when a division of this Court was sitting for one week in each of those months in Vancouver to deal with urgent matters during long vacation.  Unfortunately the Crown, which had the responsibility for this appeal, did not apply for it to be heard during the foregoing months.  It was not heard until October, 1992, several months after the respondent had been released from prison.  In my opinion, it would not have been just in the circumstances of this case to reincarcerate the respondent. [35] The concern expressed in Morphy and Nelson applies here.  It would be unjust, and counterproductive not only to Mr. Charlie’s interests, but those of society at large, to interfere with his successful efforts at rehabilitation by sentencing him a period of incarceration at this time.  It is on this basis alone that I would dismiss this appeal. Conclusion [36] I would grant leave to appeal and dismiss the appeal. “The Honourable Mr. Justice Frankel” I AGREE: “The Honourable Madam Justice Rowles” I AGREE: “The Honourable Madam Justice Saunders”

MR JUSTICE PLENDER: The applicant in this case is a Jamaican national on behalf of whom it has been said that he came to the United Kingdom at the age of 9 and has remained in the United Kingdom ever since. It is common ground that his lifestyle is criminal. The decision to make a deportation order in this case was made following his conviction for three offences: the first was a benefit fraud involving some £23,000 obtained fraudulently from the Department for Work and Pensions; the second was an offence of sexual assault on a female under 13; the third was the use of racial threats contrary to the Public Order Act 1936 (as amended). For those offences he was sentenced to a total of 27 months' imprisonment. The Secretary of State therefore had the power to make a deportation order under section 32(3) of the United Kingdom Borders Act 2007 if, and only if, the claimant was not immune from deportation under section 7 of the Immigration Act 1971. The essential point at issue in this case is whether the defendant is immune from deportation under that section. The claimant has a long history of other offences, which are set out in the judgment of the sentencing judge for the fraud offences, which led to the making of a deportation order. By letter dated 4 December 2008, the Secretary of State wrote to the claimant stating that she had in mind the making of a deportation order unless the defendant satisfied her to the contrary. The letter referred expressly to section 7 of the Immigration Act 1971, and invited the making of representations as to whether the claimant was immune from deportation. Having received no response by the 26 February 2007, the Secretary of State decided to make the order in this case. By letter dated 27 February 2009, there were presented to the Secretary of State a number of documents tending to show, and showing, according to the claimant's counsel, that the claimant had been ordinarily resident in the United Kingdom not just for five years preceding the Immigration Act 1971, but for some 40 years. The documents produced include, in particular, medical records going back some 40 years. Counsel for the Secretary of State, Mr Singh, says in open court that the Secretary of State does not accept that these documents demonstrate that the claimant was ordinarily resident for all of the five-year period, but in any event, and more principally, Mr Singh says, the claimant has an alternative remedy. The alternative remedy is an appeal to the Asylum and Immigration Appeal Tribunal, specifically upon the question of whether this claimant is liable to deportation. Not only, says Mr Singh, is there such a remedy available, but it is a remedy that has actually been invoked by this claimant in the present case, and the appeal has been set down for the 29 April 2009. Against that, Mr Stanage, for the claimant, says that on 29 April the Tribunal is to hear the appeal, and it may take three or four weeks for it to promulgate its decision. This court, he says, should not sit idly by while waiting for the Tribunal's determination. He says that a minimal exercise of discretion would be required by this court, and furthermore, in granting permission to appeal in this case, Keith J rejected, or must be taken to have rejected, the argument that there is an alternative remedy, an argument that Mr Stanage himself drew to the attention of the court very properly in accordance with his duty. He says the basis of a claim for bail, which may be considered by the Tribunal, is discretionary but liberty is an entitlement. He is of course quite right in drawing that antithesis. But the issue before the Asylum and Immigration Appeal Tribunal is not, properly speaking, whether this claimant should be released, the question is whether he is amenable to deportation. The record of this claimant is far from enviable, but it is not a record which itself justifies his detention, whether under the Immigration Act or otherwise. A person convicted of criminal offences is liable to be imprisoned for the period specified by the court by way of sentence, lawfully imposed, and not otherwise. Detention under the Immigration Act, however, is lawful only in the case of a person who is liable for deportation. The issue before the Asylum and Immigration Appeal Tribunal will therefore address the basis upon which this claimant is detained. I shall not end without drawing attention to some concern as to the duration of the detention in this case. One expresses the hope that the Asylum and Immigration Appeal Tribunal, notwithstanding the pressures on it, will take no longer than is necessary to reach its judgment in this case, where the liberty of the subject is at stake. MR SINGH: My Lord, the normal order at the conclusion of a substantive judicial review hearing where the application for judicial review is dismissed is that the claimant should pay the defendant's costs. So, my Lord, I would ask the court to make that order. The claimant is legally aided, so the order could not be enforced without leave of the court in any event. MR JUSTICE PLENDER: Mr Stanage, what do you have to say about that? MR STANAGE: My Lord, no objection, and my client being publicly funded, might there be detailed assessment of the claimant's costs? MR JUSTICE PLENDER: You may have your detailed assessment for costs, and there will be an order for costs in the defendant's favour, not to be enforced without leave of the court.

Deepak Gupta, J. Leave granted. This appeal is directed against the judgment dated 29 th March, 2016 whereby the Writ Appeal No.669 of 2016 filed by the appellant herein was dismissed and the judgment dated 22nd February, 2016 of the learned Signature Not Verified Digitally signed by SANJAY KUMAR Date 2017.09.08 Single Judge in Writ Petition Civil No. 20027 of 2015, 132505 IST Reason filed by the respondent No.1 herein was allowed. The undisputed facts are that the appellant school was a junior primary school up to the level of Class IV. Vide order dated 16th June, 2015 the appellant school was upgraded to the level of upper primary school i.e. it was permitted to run from Class V to Class VIII also. The order of the government dated 16th June, 2015 permitting the school to be upgraded was challenged by respondent No.1, who is the Manager of a school being run in the vicinity. The main ground of challenge was that the procedure prescribed under the Kerala Education Rules, 1959 for short KER , had number been followed and numbernotice was given to the schools in the vicinity to raise any objection with regard to the upgradation. The learned Single Judge allowed the writ petition mainly on the ground that the procedure prescribed in Rule 2 of Chapter V of KER was number followed. The order of the State Government was set aside but permission was given to the appellant school to permit the students already admitted, to companytinue their education in the school till the next academic year. The learned Single Judge also directed that it would be open to the Government to take a fresh decision in the matter after following the procedure prescribed under Rule 2 of Chapter V of KER. The appellant filed Writ Appeal No.669 of 2016 which was dismissed. Hence this appeal. Mr Huzefa Ahmadi, learned senior companynsel appearing for the appellant school urged that both the companyrts have lost sight of the fact that the Government of Kerala specifically exercised the powers of relaxation vested in it under Rule 3 of Chapter I of KER. A perusal of the order dated 16th June, 2015 shows that it is a detailed order and the appellant school had made a request that to meet the needs of the children of the locality it may be permitted to be upgraded as an upper primary school. In the order it is mentioned that the appellant school is situated in an economically backward area and the students mainly belonged to the minority Muslim companymunity. It is also observed that the students studying in this school have to attend schools at a distance of 2.5 kilometres to 6 kilometres after passing Class IV. It was also numbericed that there are 268 students studying in the school from Class 1 to Class IV. After companysidering all these aspects and after taking into companysideration Rule 2 and Rule 2A of Chapter V of KER, which prohibit opening and upgradation of new schools except in terms of the said rules, the government has taken a companyscious decision to make relaxation in favour of the appellant school and exempted it from the provisions of Rule 2 and Rule 2A of Chapter V of KER and it has been upgraded to an upper primary school from the academic year 2015-2016. Shri Ragenth Basant, learned companynsel appearing for the respondent No.1 urged that without giving an opportunity to the respondent No.1 numberupgradation order companyld have been passed in favour of the appellant school. Shri Prashant Bhushan, learned companynsel appearing for respondent No. 6, the Parent Teachers Association, supported the appellant and wanted that the children should go to the appellant school which is located in their locality. It appears that the attention of the High Court was number drawn to the last two paragraphs of the impugned order which makes specific reference to Rule 2 and Rule 2A of Chapter V of KER as well as Rule 3 of Chapter I of KER and the companyscious decision of the State to relax the rigours of the rules. There was numberspecific challenge to the order of relaxation. Even otherwise, we are clearly of the view that the Government had the authority and jurisdiction to grant such a relaxation in terms of Rule 3 of Chapter 1 of KER, which reads as follows Where the Government are satisfied that the operation of any rule under these Rules causes undue hardship in any particular case, the Government may dispense with or relax the requirements of that rule to such extent and subject to such companyditions as they may companysider necessary for dealing with the case in a just and equitable manner. We may also mention that we have gone through the file of the case especially the map Annexure P-13 , showing the distance of the various schools and we find that numberother school is at a distance of less than 3 kilometres from the appellant school.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Samuelson, 2015 BCCA 29 Date:  20150126 Docket: CA041956 Between: Regina Respondent And Anthony Leonard Donald Samuelson Appellant Before: The Honourable Madam Justice Kirkpatrick The Honourable Madam Justice Garson The Honourable Madam Justice MacKenzie On appeal from:  An order of the Provincial Court of British Columbia, dated December 12, 2013 ( R. v. Samuelson , Penticton Registry File Number 41107). Counsel for the Appellant: M.F. Welsh Counsel for the Respondent: M.A. Street Place and Date of Hearing: Vancouver, British Columbia January 8, 2015 Place and Date of Judgment: Vancouver, British Columbia January 26, 2015 Written Reasons by: The Honourable Madam Justice Kirkpatrick Concurred in by: The Honourable Madam Justice Garson The Honourable Madam Justice MacKenzie Summary: Application for leave to appeal and an appeal from a sentence of two years less a day followed by three years’ probation for an aggravated assault. Following a provocative and aggressive exchange, the offender attacked the victim with a makeshift weapon, which was a rock placed in a sock and swung like a sling. The sentencing judge found that the assault was severe and premeditated. Held: Appeal dismissed. The sentence was not demonstrably unfit and the sentencing judge did not commit an error in principle, fail to consider a relevant factor, or overemphasize a relevant factor. Reasons for Judgment of the Honourable Madam Justice Kirkpatrick: [1] At close of submissions on this appeal, we dismissed the appeal with reasons to follow. These are those reasons. [2] Anthony Leonard Donald Samuelson seeks leave to appeal, and if leave is granted, appeals from the sentences imposed on May 6, 2014 of two years less a day followed by three years’ probation following his conviction for aggravated assault, contrary to s. 268(2) of the Criminal Code , R.S.C., 1985 c. C-46 and assault with a weapon (a rock contained in a sock), contrary to s. 267(a) of the Code . [3] Mr. Samuelson does not appeal the ancillary orders prohibiting him from possessing firearms and weapons, and requiring him to provide a DNA sample. He also does not contest the sentences imposed on matters to which he pleaded guilty: mischief to property owned by the RCMP (telephones) and three breaches of his recognizance, all of which were committed while he was on bail on these charges. [4] Mr. Samuelson submits the sentences imposed offend the principles of proportionality, parity, and restraint. He asks this Court to vary the sentence and impose a three year suspended sentence “with probation” or, alternatively, a reduction of the jail term imposed in the trial court. A conditional sentence order is not an available sanction by operation of s. 741(e)(i) of the Code . CIRCUMSTANCES OF THE OFFENCE [5] On the evening of September 7, 2012, Michael Ricciardi and five friends were walking to a local pub in Penticton, B.C. after drinking at a residence. Each member of Mr. Ricciardi’s group, with the exception of Dave Jevons, had consumed five to six beers and considered themselves to be “intoxicated”. [6] As the group neared the local art gallery on route to the pub, they heard Mr. Samuelson yelling aggressively. Although they could not understand what he was saying, the group interpreted Mr. Samuelson’s words as of a “fighting, provocative nature”. One member of Mr. Ricciardi’s group heard Mr. Samuelson call them “pussies” and “faggots” and another heard him say “Let’s fucking go”. [7] Mr. Ricciardi’s group exchanged unpleasantries with Mr. Samuelson as they continued toward the pub. No one in the group expressed any intention to fight with Mr. Samuelson. [8] Mr. Samuelson was described as appearing as though he wanted to fight − he was standing in a fighting stance with his hands in the low-ready position and bouncing on his feet like a boxer. [9] The judge described the assault as follows: [12]      Mr. Ricciardi and the accused stood face to face. Mr. Ricciardi stepped towards the accused. He did not make any threatening motions. At most, he shrugged his shoulders up and opened his palms face up when he asked the accused what his problem was. The two did exchange unpleasantries. At one point, Mr. Ricciardi suggested that Mr. Samuelson ought to return to Alberta where he came from. The tone coming from both men was aggressive in nature. [13]      Mr. Ricciardi testified that the accused then turned, walked away, and picked up a weapon, charged, and then struck him with it. Again, I preferred the evidence of the others that Mr. Samuelson had the weapon in his hands the whole time and did not back away to pick it up. [14]      It is important to note that not only had Mr. Ricciardi been drinking, but he had also sustained a severe blow to his head within seconds of the observations he testified about. [15]      After the blow, the accused turned and ran. Members of Mr. Ricciardi’s group gave chase. Mr. Jevons said that Mr. Samuelson was laughing as he ran. Mr. Samuelson was calling out for assistance from others in the area. [16]      Eventually the group was able to tackle him. There was a brief struggle on the ground and Mr. Samuelson then apologized. Others began to approach, and the members of Ricciardi’s group felt it too unsafe and left. [10] The weapon referred to by the judge was a rock placed in a sock and swung like a sling. Mr. Ricciardi sustained a serious head wound that resulted in a permanent, visible scar. He missed a week of work due to his injuries. [11] At the time of sentencing, Mr. Ricciardi continued to suffer from concussion symptoms, as well as anxiety, paranoia and anger. He takes prescription medication for his anxiety. He rarely leaves his house, which has affected his family and social relationships. CIRCUMSTANCES OF THE OFFENDER [12] The judge had the benefit of a pre-sentence report with a psychological component. Mr. Samuelson reported having an unstable childhood where he moved between the homes of his separated parents. His father was verbally, emotionally, and physically abusive toward him. His mother was drug-addicted and neglectful. She died from a drug overdose before the sentencing hearing. [13] Mr. Samuelson described himself as rebellious and poorly behaved in school. He was expelled from school in Grade 8 because of his disruptive behaviour in the classroom and from an alternative school in Grade 10. He had a sporadic employment history. He had no income at the time of sentencing. [14] It appears that the source of Mr. Samuelson’s difficulties can be traced to an early history of excessive consumption of alcohol beginning when he was 13 or 14 years old. He also used marihuana. Prior to the offence, Mr. Samuelson was consuming alcohol and marihuana daily. He consumed ecstasy and cocaine bi-weekly. [15] At the time of the pre-sentence report, Mr. Samuelson claimed to be abstaining from all substances. He also claimed to have completed an intake at an addiction resource centre and that he had an appointment with a counsellor, neither of which was confirmed by the centre. [16] Mr. Samuelson was seen by a psychiatrist, Dr. Agbodo in February 2012. Dr. Agbodo diagnosed him as having an impulse control disorder and prescribed carbamazepine. Mr. Samuelson failed to attend a follow-up visit although he says he continues to take the medication and that he finds the medication beneficial. [17] In a similar vein, Mr. Samuelson failed to follow instructions from his general practitioner to attend for blood work with drug screening and for specialist appointments, ultimately prompting the termination of his treatment. [18] The psychiatric report of Dr. Meldrum was filed at the sentencing hearing. Dr. Meldrum considered that Mr. Samuelson “had some insight into his difficulties” but “did however seem somewhat naïve with respect to his ability to maintain abstinence over the longer term without formalized treatment”. [19] Mr. Samuelson’s risk factors were described by Dr. Meldrum in part as follows: There are factors in Mr. Samuelson’s history that will increase his risk of violence compared to an individual without such a history. This includes Mr. Samuelson’s current convictions for violent offences. This was an act of serious violence which increases the risk of future violence. Additionally Mr. Samuelson was 18 years old at the time of his arrest and his young age statistically increases his risk. Other historical risk factors that are pertinent to predicting an increased risk of violence is Mr. Samuelson’s history of substance misuse, early developmental trauma and maladjustment and a possible mental illness, which could be bipolar disorder, attention deficit disorder or an impulse control disorder. Mr. Samuelson also has a history of early maladjustment and has a history of a breach charge both of which statistically increase his risk compared to an individual without these factors. REASONS FOR SENTENCE [20] The judge reviewed the foregoing background in his comprehensive reasons for sentence. He concluded that the assault was serious and pre-meditated: [19]      Mr. Samuelson removed one of his socks and placed a rock in it to act much like a slingshot. The nature of the weapon would have required some thinking and forethought on his part. It is not the same as simply picking up a stick or a rock. I am also satisfied that it was his intention to use it with the element of surprise when the group was near him. It was not a mere reaction on his part to what he says he perceived to be a threatening situation. The fact that he ran away laughing supports my belief. The evidence does not support the notion that the blow occurred in the course of a consensual fight or that Mr. Samuelson could have been mistaken in his belief that Mr. Ricciardi was a willing participant. [21] The judge reviewed the aggravating circumstances which he identified as: (a) the nature and permanence of Mr. Ricciardi’s injuries; (b) the fact that Mr. Samuelson “purposely lured” Mr. Ricciardi to the location and went to the effort to fashion a weapon from a rock and a sock; (c) the absence of provocation; (d) the nature of the weapon which the judge found could have only one purpose − to cause death or serious bodily harm; (e) the lack of insight into the crime as evidenced by his belief that he was acting in self-defence; and (f) Mr. Samuelson’s post-offence attitude exhibited by non-compliance while on bail “which demonstrate challenges for the system in effecting future rehabilitation” and “diminishes the prospects that he would be able to comply with a community-based sentence”. [22] The mitigating circumstances were found by the judge to include Mr. Samuelson’s “very difficult upbringing”; his relative youth − he was 18 at the time of the offence and 20 years old at the time of sentencing; and the absence of a criminal record. [23] The judge had particular regard to the objective circumstances of the assault. He referred to this Court’s decisions in R. v. Craig , 2005 BCCA 484 and R. v. Johnson (1998), 131 C.C.C. (3d) 274 (B.C.C.A.). [24] In Craig , the Court described the range of sentence for the commission of aggravated assault as follows: [10]      It is not disputed, and it appears clear on the cases, that a sentence of two years’ imprisonment for the commission of aggravated assault (which is the sentence that was effectively imposed by the judge) is at the low end of the range of sentences imposed on similar offenders in similar circumstances ( R. v. Chana (1998), 115 B.C.A.C. 159, [1998] B.C.J. No. 2458 (Q.L.) (C.A.) at para. 6). The range of sentence for similar offences was described as being between 16 months and six years in R. v. Johnson (1998), 131 C.C.C. (3d) 274 (B.C.C.A.), two years less a day to six years in R. v. Biln , 1999 BCCA 369, and, most recently, between 18 months and six years in R. v. Willier , 2005 BCCA 404. In determining an appropriate sentence within this broad range, an unprovoked attack with a weapon tends to result in the imposition of a sentence at the higher end while a consensual fight that has escalated with resulting injury tends to result in a sentence at the lower end. See in particular: R. v. Willier , at para. 22, and R. v. Johnson , at para. 10. [25] At the outset, it is important to emphasize that sentencing is an individualized process, as the Supreme Court of Canada recently explained in R. v. Pham , 2013 SCC 15 at para. 8. The potential of a person to rehabilitate is an important factor to consider in crafting such an individualized sentence. Assessing the potential of a particular offender to rehabilitate is a fact that is within the purview of the sentencing judge: R. v. C.A.M. , [1996] 1. S.C.R. 500 at para. 82. Even if the manner and the type of the offence is similar, and even where some background circumstances of the offender (e.g., age or criminal record) are partly analogous, the underlying potential of the offender to be rehabilitated may indicate the need for a more (or less) severe sentence. [26] At sentencing, the Crown sought a sentence of three to four years’ imprisonment. The defence advocated a suspended sentence, relying on R. v. Nakamura , 2012 BCSC 327; R. v. Nicholls , 2013 BCSC 1145; and R. v. Powell (1994), 134 N.S.R. (2d) 236 (N.S.C.A.), all of which imposed suspended sentences. The judge conceded that the defendant’s cases were “somewhat difficult to distinguish”. [27] With respect, those cases were clearly distinguishable. Nakamura concerned two youthful offenders who had shown sincere remorse for their actions and who had positive pre-sentence reports. Mr. Samuelson, while also a “youthful” offender, and who accepted responsibility for the conviction for assault with a weapon, was unable to accept the aggravated nature of the assault. He committed three breaches of his bail and committed another offence while awaiting trial. [28] Nicholls concerned an Aboriginal offender who was 21 years old at the time of the offence. The sentencing judge was impressed by Nicholls’ behaviour following the offence, including complete compliance with bail conditions. Mr. Samuelson has demonstrated obvious difficulty complying with bail conditions, which calls into question the extent of his potential rehabilitation if he were to receive a suspended sentence. [29] In Powell, the Nova Scotia Court of Appeal upheld a suspended sentence for a conviction for aggravated assault. On appeal, the Crown conceded that the injuries sustained by the victim were “more akin to one causing bodily harm than aggravated assault”. The sentencing judge, with due regard to the offender’s circumstances and the nature of his offence, concluded that incarceration would not have been the most appropriate sentencing given his underlying potential for rehabilitation. As the Court of Appeal explains, it was within the sentencing judge’s discretion to conclude that the suspended sentence was the “best hope for [his] reformation and rehabilitation” which might “bring a positive change in his life”. [30] Ultimately, the judge in the case at bar was moved to impose a custodial sentence. He reasoned: [48]      … However, a suspended sentence is primarily a rehabilitative tool. Where the offence is serious, such as this, and denunciation and deterrence are the primary objectives, the fact that conditional sentences are no longer an option ought to point the court in the direction of a custodial sentence and not probation. [49] Our Court of Appeal has commented previously that when Parliament closed the door on conditional sentences for certain offences like aggravated assault, it did not open the door to reducing sentences below the usual range to avoid Parliament’s clear intention. [50]      In my opinion, despite your age and the challenges you have faced over the years, the objectives, purposes, and principles of sentencing cannot be adequately satisfied with the imposition of a probation order. [51]      I appreciate that you have had a very difficult upbringing and you have not had much guidance with respect to formulating a proper moral compass. The crime that you have committed is indeed a horrible crime and warrants a period of incarceration. [52]      I thought very carefully about sending you to the penitentiary and acceding to the lower end of the range submitted by Crown counsel. However, given your age and other challenges, I am concerned that you will come out worse than you are now. Keeping your sentence in the provincial range will also allow me and permit me to place you on probation for three years. If I were to impose a federal sentence, I would not have that option. It gives me the peace of mind that I can place you on restrictions not to consume alcohol or drugs, and that you will have to follow through with treatment and counselling when you are ultimately released from jail. [53]      Having considered all of the factors, I have concluded that a fair and fit sentence to pass upon you is, with respect to 41107, Count Number 1, two years less one day, and I am placing you on probation for a period of three years following that sentence. ON APPEAL [31] Mr. Samuelson contends the sentences imposed are “proportionally excessive”, contrary to s. 718.1; offend the principles of parity, contrary to s. 718.2(b), and restraint, contrary to s. 718.2(d); and did not adequately consider other available sanctions, contrary to s. 718.2(e). PROPORTIONALITY [32] In my opinion, Mr. Samuelson’s argument that the judge failed to have adequate regard to the gravity of the offence and the degree of responsibility of the offender has no merit. It is abundantly clear from the judge’s thorough examination of the circumstances of the offence and Mr. Samuelson’s individual circumstances that the judge more than adequately fulfilled his obligation under s. 718.1 to fashion a sentence that balanced the statutory factors. [33] Mr. Samuelson emphasizes his personal circumstances − his youthfulness, his troubled childhood, potential mental illness, addiction issues, suicide attempts, and absence of a criminal record. However, it is clear the judge had specific regard to all of these circumstances. [34] In addition to the cases relied upon at the sentencing hearing to which I have above referred, Mr. Samuelson also placed some emphasis on the decision of this Court in R. v. Koop , 2008 BCCA 140, in which this Court substituted a sentence of two years less a day following guilty pleas to two counts of robbery with a conditional sentence order of two years less a day. [35] It is important to note that in Koop the Crown conceded that the sentencing judge failed to give sufficient weight to the factor of rehabilitation (at para. 13). That concession essentially invited intervention by this Court which found the first time youthful offenders to have taken positive steps toward rehabilitation. Unfortunately, the same cannot be said of Mr. Samuelson. [36] In my opinion, in considering the totality of Mr. Samuelson’s circumstances, including his potential for rehabilitation, the sentencing judge impliedly distinguished the cases cited by the appellant, notwithstanding his apparent concession that they were “ somewhat difficult to distinguish” (emphasis added). Given that the cases are clearly distinguishable, the sentencing judge did not err in principle by declining to impose a suspended sentence. [37] In this case, as he was obliged to do, the judge balanced Mr. Samuelson’s circumstances with the gravity of the offence which, by any measure, was extremely serious. PARITY [38] Accepting that “ranges of sentence” are merely guidelines (see e.g., R. v. Nasogaluak , 2010 SCC 6 at para. 44), it cannot be fairly said that this sentence, which falls at the lower end of the “range”, is unfit. It was a serious assault with a potentially lethal weapon in circumstances in which Mr. Samuelson lured his victim, evidently in order to inflict harm. [39] Furthermore, at the hearing of the appeal, counsel for Mr. Samuelson conceded that the sentences imposed were not a marked and substantial departure from sentences imposed on similarly situated offenders for similar offences. That concession signals that the sentences cannot be said to be unfit. RESTRAINT [40] The judge specifically considered alternatives to jail for Mr. Samuelson (at para. 47). The alternative proposed was a suspended sentence which, as the judge correctly noted, is primarily a “rehabilitative tool”. [41] The judge rejected the Crown’s contended three to four year sentence, and crafted a sentence that would permit Mr. Samuelson to be placed on probation for three years in recognition of his fundamental need for supervision and treatment. [42] The need for continued supervision and treatment was amply demonstrated by Mr. Samuelson’s misconduct while on bail and the psychiatric evidence before the court. There was simply insufficient evidence before the court that could offer any comfort that a suspended sentence, with the strict conditions that would necessarily have had to be put in place, would be successful. SUMMARY [43] In my opinion, Mr. Samuelson has failed to demonstrate that the judge committed an error in principle, or failed to consider a relevant factor, or overemphasized a relevant factor. The sentences were not demonstrably unfit. [44] I would grant leave to appeal but dismiss the appeal. “The Honourable Madam Justice Kirkpatrick” I AGREE: “The Honourable Madam Justice Garson” I AGREE: “The Honourable Madam Justice MacKenzie”

COURT OF APPEAL FOR ONTARIO CITATION: United States v. Hillis, 2021 ONCA 447 DATE: 20210622 sDOCKET: C68423 Simmons, Watt and Roberts JJ.A. BETWEEN The Attorney General of Canada on behalf of the United States of America Respondent and Brady John Hillis Applicant Seth P. Weinstein and Michelle Biddulph, for the applicant Adrienne Rice, for the respondent Heard: October 2, 2020 by video conference On judicial review of the order of surrender of the Minister of Justice, dated May 12, 2020. Watt J.A.: [1] One evening in June about three years ago, Brady John Hillis (the applicant) was at the Fortune Bay Resort and Casino in Minnesota. There, within an hour, he is alleged to have inappropriately touched three girls, aged 7, 9 and 12. [2] The alleged offences were reported to security staff at the casino. Later, an investigation was undertaken by federal authorities in the United States. The applicant was released and allowed to return to Canada. [3] The United States has decided to seek the applicant’s extradition so that he can be prosecuted in Minnesota on federal charges. A warrant was issued for the applicant’s arrest. He was arrested and later released from custody on a recognizance. [4] After an application to stay proceedings failed, the applicant consented to committal. A judge of the Superior Court of Justice ordered the applicant’s committal. A few months later, the Minister of Justice ordered the applicant’s surrender for extradition. [5] The applicant asks us to quash the surrender order of the Minister. In the alternative, he asks us to quash the order and remit the matter to the Minister to consider whether the applicant ought to be surrendered on the condition that he not be prosecuted for offences that could lead to a mandatory minimum sentence. These reasons explain why I would decline to quash the order or remit the matter to the Minister. The Background [6] A brief history of the proceedings will provide the background necessary to place the claims of error in their appropriate setting. The Principals [7] The applicant is a 32-year-old Canadian citizen. At the time of the alleged offences, he was employed as an Ontario Provincial Police officer, and he was a guest at the Fortune Bay Resort and Casino on the Bois Forte Indian Reservation in the State of Minnesota. [8] Each of the complainants were also guests at the resort, as were their parents. They were aged 7, 9 and 12 when the offences were alleged to have occurred. The Allegations [9] In the Record of the Case and in the indictment handed down by the grand jury in the United States District Court, District of Minnesota, each complainant is described as Jane Doe, followed by a number. [10] Jane Doe 1, an enrolled member of the Bois Forte Band of Chippewa, alleged that the applicant offered her money if she would let him touch her “bum”. He rubbed his hand over her clothed buttocks a couple of times and up her right leg. This occurred in the arcade at the resort. She reported the incident to her parents after quickly walking out of the arcade. Jane Doe was 9 years old. [11] Jane Doe 2, an enrolled member of the Leech Lake Band of Ojibwe, alleged that while she was in the kiddie pool at the resort, the applicant asked her to come over to where he was sitting at the edge of the pool. He asked her some questions, then put his arm under the water and slid his hand under the leg portion of her swimsuit. He touched her “private part” with his fingers. He asked whether she liked the touch. Jane Doe 2 said “no”. The applicant said he would “make it feel good”. Jane Doe 2 tried to move away but the applicant pulled her back, then put his hand under the top part of her two-piece swimsuit and touched her breast area with his hand. [12] Jane Doe 2 told her other siblings, who then told her foster parents. Her foster parents and siblings contacted security at the resort. Law enforcement was called. Jane Doe 2 was 7 years old. [13] Jane Doe 3 was in the swimming pool at the resort with a friend. The applicant was swimming close to them. Jane Doe 3 and her friend decided to race each other to the other end of the pool. As she dove down, Jane Doe 3 felt someone touch or rub her buttocks. The applicant made a moaning sound. Jane Doe 3 asked her friend whether she (the friend) had touched her (Jane Doe 3’s) buttocks. The friend said she did not. Jane Doe 3 told her mother about the incident as they were leaving the resort later that evening, but neither she nor her mother reported it to law enforcement that day. Jane Doe 3 was 12 years old. The Investigation [14] The incidents were reported first to resort security. Local law enforcement was notified. Eventually, the Federal Bureau of Investigation took over. The applicant was released and permitted to return to Canada. He immediately reported the incident to his superiors at the Ontario Provincial Police. The Extradition Proceedings [15] By a Diplomatic Note sent about two months after the alleged offences, the United States sought the extradition of the applicant to stand trial on a three-count indictment handed down by a grand jury in the United States District Court in the District of Minnesota one month earlier. The indictment contained two counts of abusive sexual contact with a child under 12 and a single count of aggravated sexual abuse of a child under 12. [16] Two days later, senior counsel with the International Assistance Group for the Minister of Justice of Canada issued an Authority to Proceed under s. 15 of the Extradition Act , S.C. 1999, c. 18 (the “Act”) on behalf of the Minister of Justice. The corresponding domestic equivalent offence is sexual interference under s. 151 of the Criminal Code , R.S.C. 1985, c. C-46 . The Application to Stay Proceedings [17] Prior to the committal hearing, the applicant applied to a judge of the Superior Court of Justice for an order staying the extradition proceedings on the ground that they constituted an abuse of process. The application was resisted by the Attorney General of Canada on behalf of the extradition partner on the ground that there was no basis on which to conclude an abuse of process had occurred. [18] The application judge concluded that he had no jurisdiction to grant the remedy sought. He dismissed the application. The Committal Hearing [19] With the applicant’s consent, the presiding judge ordered the applicant’s committal. The Ministerial Phase [20] The Minister of Justice received written submissions from counsel for the applicant on two occasions. The Minister sought and obtained information from the United States Department of Justice about the available and likely sentences, including the prospect and consequences of both federal and state civil commitment proceedings. He also sought and obtained an opinion from the Attorney General for Ontario about the sentence likely to be imposed were the applicant to be tried in Canada for the Canadian equivalent offence of sexual interference. [21] The Minister also had access to the Record of the Case, four Supplementary Summaries of the Case and assurances from the United States Department of Justice that no federal civil commitment proceedings would be taken against the applicant if he were extradited to the United States to stand trial on the federal indictment in Minnesota. The Surrender Decision [22] On May 12, 2020, the Minister advised counsel for the applicant that he ordered the applicant’s surrender. The order was subject to the condition that the applicant be deported at the conclusion of his criminal proceedings in the United States. The Minister relied on the assurance that the applicant would not be subject to any form of civil commitment as undertaken by the United States Department of Justice. An order of surrender was issued. The Application for Judicial Review [23] The applicant invokes ss. 57(1) and (7) of the Act. He asks that we quash the surrender order of the Minister on the ground that it is unreasonable, the result of flawed legal analysis and inadequate consideration of applicable precedent. [24] The overarching submission of unreasonableness in the Minister’s decision to order surrender includes several discrete complaints of legal error. To better understand the applicant’s grievances, some more background is helpful. The Offences Charged [25] The indictment on which the United States proposes to try the applicant contains three counts. Two counts allege abusive sexual contact with a child under 12 years of age. The third alleges aggravated sexual abuse of a child under 12 years of age. As the description of the offences would suggest, the count of aggravated sexual abuse alleges a more serious offence than the counts of abusive sexual contact. The Likely Sentencing Ranges on Conviction [26] The offence of abusive sexual contact does not attract a minimum sentence. The maximum sentence that can be imposed on conviction is imprisonment for life. The statutory sentence on conviction of aggravated sexual abuse is imprisonment for not less than 30 years, nor more than life. [27] According to the United States Department of Justice, the potential sentence the applicant would receive if convicted would depend on various factors, including the nature of the offences of which he is convicted. For multiple convictions, the sentences could be ordered to be served consecutively, although they are presumed to be concurrent. A plea agreement involving counts that do not trigger the 30-year minimum sentence could reduce the period of imprisonment. [28] The United States Department of Justice explained that, irrespective of the application of a statutory minimum sentence, the sentencing court, with the benefit of a pre-sentence report, must also consider the relevant sentencing guidelines. The guidelines are discretionary, not mandatory. If the applicant is convicted at trial, the likely range of sentence would extend from 30 years to imprisonment for life. Alternatively, depending on the nature of the convictions or any plea agreement, the guidelines range could be as low as 51 to 63 months without a mandatory term of imprisonment. [29] In a statutory declaration, the applicant’s United States counsel agrees with the United States Department of Justice that it is difficult to predict a sentence if convictions were entered on the counts of abusive sexual conduct. He also agrees that the United States Department of Justice fairly represented the likely advisory sentencing guideline sentence. No settlement negotiations have taken place. A United States Department of Justice memo on charging and sentencing directs federal prosecutors to pursue mandatory minimum sentences and requires supervisory approval to depart from sentencing guidelines or mandatory minimum sentences, once charged. Federal Civil Commitment [30] According to the United States Department of Justice, the applicant could be subject to federal civil commitment based on the charges included in the indictment. But whether federal civil commitment would occur is subject to myriad factual and time-specific circumstances that are extremely difficult to predict at this early stage of proceedings. [31] Proceedings for federal civil commitment begin when the United States Bureau of Prisons Certification Review Panel certifies to a federal district judge that a federal prisoner (1) previously “engaged or attempted to engage in sexually violent conduct or child molestation”, (2) currently “suffers from a serious mental illness, abnormality, or disorder”, and (3) “as a result of” that illness, abnormality or disorder is “sexually dangerous to others.” This certification stays the prisoner’s release from custody. This stay permits the United States Government to prove its claims in a court hearing before a judge of the federal district court. With or without the assistance of a psychiatric or psychological evaluation, the Government is required to prove “by clear and convincing evidence” that the prisoner is a “sexually dangerous person”. [32] If the United States Government proves that a person is a “sexually dangerous person”, the prisoner is committed to the custody of the Attorney General, who may order the prisoner’s release to a state willing to assume responsibility for the prisoner’s custody, care and treatment. Or the Attorney General may put the committed prisoner in a facility for treatment until a state will assume responsibility for the prisoner, or the prisoner’s condition improves to the point where they can be safely released. During the civil commitment, the facility director submits annual reports and makes recommendations about the need for continued commitment. Where the facility director certifies that the prisoner is no longer sexually dangerous to others or will not be sexually dangerous to others if released under a prescribed regimen, the court that ordered the commitment must either discharge the prisoner or hold a hearing to determine whether and on what conditions the prisoner should be released. [33] The Minister sought assurances from the United States Department of Justice that, if extradited, the applicant would not face civil commitment. The Criminal Division of the United States Department of Justice provided an assurance that it would waive the possibility of seeking civil commitment of the applicant as a sexually dangerous person. On completion of sentence imposed on conviction, or on acquittal, the applicant would not be in state custody. He would immediately be placed in federal deportation proceedings, which have priority over any state proceedings for civil commitment. Alternatively, if all statutory and treaty conditions have been met, the United States Department of Justice would not object to a request by Canada or the applicant that he be transferred to serve the balance of his sentence in Canada, if made within two years before the completion of his sentence. State Civil Commitment [34] The State of Minnesota also has a civil commitment procedure. The procedure may be invoked by a county attorney filing a petition in state district court against a convicted person in federal custody. State civil commitment requires proof by clear and convincing evidence that the prisoner is a “sexually dangerous person” or has a “sexually psychopathic personality” as defined in the applicable state legislation. The state may have jurisdiction over a person for these purposes if a county in the state is financially responsible for the person or if the person is incarcerated or present in the county. [35] The United States Department of Justice advised the Minister that although the applicant may be subject to state civil commitment based on the charges in the indictment, whether civil commitment could take place is subject to many factual and time-specific circumstances that are extremely difficult to predict in this incipient stage of the proceedings. [36] The United States Department of Justice opined that the State of Minnesota may not have jurisdiction to civilly commit the applicant. This is because the applicant is not a resident of or incarcerated in Minnesota, nor is any county in the state financially responsible for him. Further, the state may decline to exercise jurisdiction for a variety of reasons. Cost. Limitations under state law. The fact that states do not routinely monitor federal prisoners. The prospect that a federal prisoner may be transferred to another federal prison outside of Minnesota rendering the state commitment order non-executable. The fact that the United States federal government already has an effective system in place. And the fact that states strongly support the federal assumption of responsibility in this aspect of corrections. [37] The applicant’s United States counsel describes the Minnesota sex offender civil commitment scheme as one of the most aggressive and far-reaching in the United States. The legal standards are distinctly vague and broad. They confine people for indeterminate periods based on predictions of future dangerousness. Prior convictions are not required, although most commitments occur after conviction and completion of imposed sentences. The decision to file a petition for civil commitment is made by the State of Minnesota, not the United States. [38] If the applicant is convicted and sentenced to a term of imprisonment, the United States Department of Justice points out, he will serve his sentence in a United States Bureau of Prisons facility. This facility could be anywhere in the United States. As someone convicted of aggravated felonies, the applicant would have no immigration status and would be deportable. United States Immigration and Customs Enforcement (“ICE”) would process an administrative removal order prior to the applicant’s release date. This would result in a detainer for deportation. The applicant would go directly from Bureau of Prisons custody to ICE custody for deportation to Canada, without serious threat of civil commitment by federal or state authorities. Sentencing for the Domestic Equivalent Offence [39] The domestic equivalent offence to those charged in the United States District Court indictment in Minnesota is specified in the Authority to Proceed as sexual interference. This offence may be prosecuted by summary conviction or on indictment. The maximum sentence when prosecuted by indictment is imprisonment for a term of 14 years. The mandatory minimum sentence of one year has been struck down as cruel and unusual punishment under s. 12 of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 . [40] The Minister solicited and received from the Attorney General for Ontario an estimate of the range of sentence likely to be imposed on the applicant if he were prosecuted in Ontario and convicted of sexual interference on all three counts. The range of sentence suggested was 90 days to 3 years. Statutory aggravating factors include the age of the complainants, itself an essential element of the offence of sexual interference, and the fact that what was involved was abuse of a person under 18. The Attorney General for Ontario also noted the potential impact of the principles in s. 718.2(e) of the Criminal Code and R. v. Gladue , [1999] 1 S.C.R. 688 if the applicant identified as Aboriginal. The Reasons of the Minister [41] The Minister considered whether, in all the circumstances, the applicant’s surrender would be unjust or oppressive or otherwise contrary to s. 7 of the Charter . Since the applicant could be prosecuted in Canada for the offences on which he has been indicted in Minnesota, with the consent of the appropriate attorney general, the Minister examined whether the decision to prefer extradition over domestic prosecution infringed the applicant’s mobility rights under s. 6(1) of the Charter . The Minister also acknowledged his authority to refuse surrender where there were compelling grounds to do so. He accepted that he could refuse surrender even where no Charter breach was established and was required to consider the direct and indirect potential consequences of the surrender, such as the punishment or treatment reasonably anticipated in the extradition partner’s jurisdiction. [42] In responding to a submission that the applicant would face indefinite civil commitment if surrendered, the Minister examined three issues: i. whether the applicant faces a real risk of state or federal civil commitment if surrendered; ii. if such a risk exists, whether ordering surrender would violate s. 7 of the Charter or be unjust or oppressive under s. 44(1)(a) of the Act; and iii. if extradition to face a real risk of civil commitment is barred by s. 7 of the Charter or s. 44(1)(a) of the Act, whether an assurance from the United States that no petition for civil commitment will be made in this case is required. [43] After briefly describing the assurance provided by the United States Department of Justice on behalf of the Government, the Minister concluded that the assurance was reliable, so that ordering the applicant’s surrender would not be unjust or oppressive or contrary to s. 7 of the Charter : I am of the view that the assurance provided by the United States is reliable. The United States is a trusted treaty partner and I am entitled to rely on its undertakings ( Gervasoni v Canada (Minister of Justice) (1996) , 72 BCAC 141). There is nothing in the record before me to suggest that the United States does not have the capacity to fulfill its assurance or that it is providing it in bad faith. It should not be lightly assumed that a foreign country would not act in good faith in complying with an assurance ( Argentina v Mellino , [1987] 1 SCR 536). The assurance from the United States addresses the risk that Mr. Hillis will face civil commitment in the United States and renders the remaining Carroll issues [the issues the Minister was considering] moot. Accordingly, I conclude that ordering Mr. Hillis’ surrender, in the face of such an assurance, would not be unjust or oppressive, or contrary to section 7 of the Charter. [44] The Minister rejected the submission that the prospect of civil commitment on surrender violates the principle of double criminality due to a reduced standard of proof and the absence of an equivalent Canadian offence. The principle of double criminality, expressed in s. 3(1)(b) of the Act, is that Canada should not extradite a person to face punishment in another country for conduct that would not be criminal in Canada. The Minister said he was satisfied that the United States was not seeking the applicant’s surrender for the purpose of civil commitment. The purpose of the extradition request and extradition was to prosecute the applicant for the federal offences alleged in the indictment. A judge decided there was sufficient evidence to commit the applicant for extradition. The double criminality requirement was met based on the Canadian equivalent offence of sexual interference. In addition, the assurance that the applicant would not face civil commitment on extradition establishes that the extradition is not sought for that purpose. [45] On the issue of sentence disparity, the Minister noted that, death penalty cases apart, nothing in the relevant treaty — the Treaty on Extradition between the Government of Canada and the Government of the United States of America , 3 December 1971, Can. T.S. 1976 No. 3 (entered into force 22 March 1976), as amended by Protocol Amending the Treaty on Extradition between Canada and the United States of America Signed at Washington on December 3, 1971, as amended by an Exchange of Notes on June 28 and July 9, 1974 , 11 January 1988, Can. T.S. 1991 No. 37 (entered into force 26 November 1991) — permits refusal of surrender based on the applicable penalties. Nonetheless, the Minister accepted that there is a significant disparity between the sentence the applicant would face if convicted of all the offences after a trial in the United States and that which he may receive in Canada. The Minister was required to consider whether the applicant’s surrender to face a potentially lengthy sentence in the United States would violate s. 7 of the Charter , shock the Canadian conscience or contravene s. 44(1)(a) of the Act. [46] The Minister rejected the applicant’s submission based on sentence disparity between the punishment likely imposed on conviction in the United States and that likely on conviction for the equivalent Canadian offence: Refusing surrender on the basis of the penalty Mr. Hillis may face would mean that the principles of comity and fairness to other cooperating states in rendering mutual assistance in bringing fugitives to justice would not be respected. Canadian courts have repeatedly found that surrender to face a potentially lengthy mandatory minimum sentence in a Requesting State does not violate section 7 of the Charter. [Citations omitted.] Specifically, in cases of alleged sexual offences against children, Canadian appellate courts have found that potentially lengthy mandatory minimum sentences do not warrant denying surrender to the United States ( United States v Wilcox , 2015 BCCA 39, leave to appeal to SCC refused, [2015] SCCA No 124; United States v K(JH) (2002), 165 CCC (3d) 449 (ONCA), leave to appeal to SCC refused, [2002] SCCA No 501). Moreover, I must consider Mr. Hillis’ sentencing exposure singly and in combination with other relevant factors, namely, the seriousness of the allegations. As noted by the bail judge, at the time of the alleged offence, Mr. Hillis was an Ontario Provincial Police Officer. The victims are young Indigenous girls, members of a particularly vulnerable population, which has been the subject of staggering rates of violence in Canada. In my view, it would be a very serious offence for an officer sworn to protect and serve such a vulnerable population in Canada, to violate young Indigenous girls at play in a hotel where they are vacationing with their families. The sentences available in the United States and Canada reflect the importance of deterring the alleged conduct. The fact that Mr. Hillis would face a lesser sentence in Canada, and would not face a mandatory minimum sentence, does not make the allegations against him any less serious. I am reminded of Burns in which the Supreme Court of Canada held that “individuals who choose to leave Canada leave behind Canadian law and procedures and must generally accept the local law, procedure and punishments which the foreign state applies to its own residents.” The severity of the American sentence and the disparity between it and a sentence Mr. Hillis would face if prosecuted in Canada is not so extreme or exceptional in the circumstances of this case that surrender would be unjust or oppressive under the Act, or shock the Canadian conscience, or otherwise be contrary to section 7 of the Charter. Having regard to all of the circumstances, I am of the view that it would not be unjust or oppressive, or contrary to section 7 of the Charter to order Mr. Hillis’ conditional surrender to the United States. The Arguments on Review The Applicant’s Arguments [47] The applicant says that the Minister’s decision to surrender him is unreasonable, the result of flawed reasoning and significant omissions in his analysis. [48] To begin, the applicant contends, the Minister failed to consider how it would be fair and just to surrender a Canadian citizen to face a minimum of 30 years in prison for offences that Canadian courts have found that a 1-year minimum sentence constitutes cruel and unusual punishment. Further, the Minister failed to properly consider whether exposing a Canadian citizen to a sentence that Canadian courts have identified as cruel and unusual would shock the conscience and offend the Canadian sense of what is fair, right and just. In addition, the Minister glossed over the impact of a finding of unconstitutionality for the mandatory minimum sentence for the Canadian equivalent offence. In essence, the Minister failed to engage with the constitutional issue. [49] The applicant argues that the protection against cruel and unusual punishment under s. 12 of the Charter is itself a principle of fundamental justice protected by s. 7 of the Charter , which is applicable to surrender decisions. Extradition to face a sentence far in excess of what Canadian courts have found to be cruel and unusual punishment violates s. 7 of the Charter and shocks the Canadian conscience. Where, as here, a decision has particularly harsh consequences for a Canadian citizen, especially where those consequences impinge on a person’s life, liberty, dignity or livelihood, the decision maker must grapple with those consequences. The Minister did not do so here. [50] The applicant accepts that disparity in potential sentences between United States’ offences and their Canadian equivalent does not generally shock the conscience of Canadians but adds that this general rule is not unyielding. Where, as here, the likely United States sentence is so grossly disproportionate to the gravity of the offence, the circumstances of the accused and the sentence warranted for the Canadian equivalent offence, surrender to face imposition of such a sentence would shock the Canadian conscience. [51] The standard an applicant is required to meet to establish a breach of s. 12 of the Charter is high. What is required is a finding of gross disproportionality, not that the sentence is merely excessive. Canadian courts have found that the mandatory minimum sentence for sexual interference under s. 151 of the Criminal Code offends s. 12 of the Charter . Although s. 12 does not directly apply in extradition cases, its protection against cruel and unusual punishment is itself a principle of fundamental justice. It follows that surrender to face cruel and unusual punishment amounts to a deprivation of liberty contrary to s. 7 of the Charter . Such surrender shocks the conscience of Canadians and warrants quashing the surrender order. [52] The applicant accepts that the “shocks the conscience” test only applies where courts have deemed the Canadian punishment to be cruel and unusual in the context of the actual circumstances of the fugitive. Here, where the mandatory minimum under s. 151 has been declared to be cruel and unusual punishment in similar circumstances, the “shocks the conscience” test is met where extradition is sought for a person who will face a much lengthier mandatory minimum sentence in the United States. That the mandatory minimum sentence is not certain does not mitigate or undermine the “shocks the conscience” test. [53] The reasons of the Minister, the applicant says, are unresponsive to the issues raised. They amount to no more than a generic response to a submission that the applicant’s extradition would infringe s. 7 of the Charter . The Minister relies on authorities decided before Canadian courts reached a consensus on the constitutional infirmity of mandatory minimum sentences. The conclusion was also flawed by the erroneous assessment of the seriousness of the alleged offences. It was unreasonable for the Minister to stray outside the characterization by the Attorney General for Ontario, whose report the Minister sought for the range of sentence appropriate for the Canadian equivalent offences of sexual interference. The Minister mischaracterized the seriousness of the offence by considering irrelevant factors and failed to consider any mitigating factors. The Respondent’s Arguments [54] The respondent focuses first on the nature of the determination the Minister was required to undertake, then on the scope of our authority to review it. [55] The Minister’s surrender decision resides at the extreme legislative end of the continuum of administrative decision making. It is largely political in nature. With superior expertise in Canada’s international relations and foreign affairs, the Minister is in the best position to determine whether the factors weigh in favour of or against extradition. The Minister’s decision is to be accorded substantial deference on review. [56] The appropriate standard of review for the surrender decision is reasonableness. A reasonableness review does not allow the court to re-assess the relevant factors and to substitute its own view. In a review of the reasonableness of the Minister’s decision, a court must keep in mind the constraints imposed on the Minister by international law, including Canada’s treaty obligations. The court must determine whether the Minister’s decision falls within a range of reasonable outcomes. In an extradition case, this means that the court must ask whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts. Interference is limited to exceptional cases of “real substance”. No interference should occur where, as here, the decision is rational, transparent and responsive to the applicant’s submissions. [57] The Minister recognized that he was required to assess the consequences of surrender under s. 7 while incorporating the underlying values of s. 12 of the Charter . He acknowledged that he was required to consider the disparity between the potential sentence the applicant would face if convicted in the United States and the potential sentence he would face if convicted of the equivalent domestic offence in Canada. [58] The respondent disagrees that the Minister rested his decision on a premise that mandatory minimum sentences in the requesting state can never shock the Canadian conscience. He considered the constitutional infirmity of the mandatory minimum sentences for the Canadian equivalent offence. He was not required to accept the declaration of unconstitutionality as a dispositive factor. It was one of many he considered in deciding whether surrender to a potential mandatory minimum of significantly greater magnitude would offend s. 7. The applicant has not articulated any specific basis on which a declaration of unconstitutionality of the mandatory minimum sentence for the Canadian equivalent offence should have concretely altered the Minister’s analysis in this case. [59] Further, the respondent continues, the Minister did not err in his assessment of the seriousness of the allegations against the applicant. He considered myriad factors. The inherent harm of the sexual violence against children and consequential harm to members of their family. The Indigenous status of the alleged victims, their sex, young age and the particular vulnerability of the Indigenous population. The applicant’s position as a police officer in Canada. This assessment was reasonable and commensurate with governing principles. Purported mitigating factors should be approached with caution in downgrading the wrongfulness of the offence or the harm to the victims. The Governing Principles [60] Our review of the Minister’s surrender decision engages principles drawn from the jurisprudence developed in response to previous challenges of a similar kind. [61] A convenient point of departure is the authority of the Minister to refuse surrender of a person whose committal to await surrender has been ordered after an extradition hearing. The Authority to Refuse Surrender [62] The Minister’s authority to order surrender of a person sought by an extradition partner is governed by statute, namely the Act. [63] Section 40(1) of the Act confers on the Minister the discretion to personally order that a person committed to await surrender be surrendered to the extradition partner. This broad discretion must be exercised in accordance with the dictates of the Charter : United States v. Burns , 2001 SCC 7, [2001] 1 S.C.R. 283, at para. 32, citing Kindler v. Canada (Minister of Justice) , [1991] 2 S.C.R. 779, at p. 846, per McLachlin J. and Canada v. Schmidt , [1987] 1 S.C.R. 500, at pp. 520-21. [64] The requirement that the Minister’s surrender decision be exercised in accordance with the Charter demands that the discretion demonstrate a balancing on the facts of each case with the applicable principles of fundamental justice: Burns , at para. 32. In some cases, this balancing and the ultimate requirement that the Minister’s decision adhere to the principles of fundamental justice — the basic tenets of our legal system — may require the Minister to seek assurances from the extradition partner: Burns , at para. 32. [65] The Act confers a discretion on the Minister to seek any assurances the Minister considers appropriate from the extradition partner, or subject the surrender to any conditions that the Minister considers appropriate, including a condition that the person sought not be prosecuted, or that a sentence not be imposed on or enforced against the person sought, in respect of any offence or conduct other than what is referred to in the order of surrender: s. 40(3). In addition, in cases in which the Minister subjects the surrender to assurances or conditions, the surrender order must not be executed until the Minister is satisfied that the extradition partner has given the assurances or agreed to the conditions: s. 40(4). [66] The Act also authorizes the Minister to refuse surrender in some circumstances, as may the provisions of the relevant extradition agreement: see, for example, ss. 44-47 of the Act. [67] In this case, the applicant invokes s. 44(1)(a) of the Act, which requires the Minister to refuse surrender where the Minister is satisfied that, in all the circumstances, the surrender would be unjust or oppressive. A surrender order is unjust or oppressive where, in all the circumstances, the order would “shock the conscience” of Canadians: Canada (Attorney General) v. Barnaby , 2015 SCC 31, [2015] 2 S.C.R. 563, at para. 2; Burns , at para. 68. The phrase “shocks the conscience” is intended to underscore the very exceptional nature of the circumstances that would constitutionally limit the Minister’s decision: Burns , at para. 67. [68] Use of the terminology “shocks the conscience” is intended to convey the exceptional weight of a factor which, because of its paramount importance, may control the outcome of the balancing test on the facts of a particular case. The balancing test considers both the global context and circumstances that may constitutionally vitiate a surrender order: Kindler , at p. 833, per La Forest J. The terminology does not cloud the ultimate measuring stick, that is, whether the extradition accords with the principles of fundamental justice: Burns , at para. 68. A surrender order that breaches the principles of fundamental justice will always shock the conscience: Burns , at para. 68. Sentencing Disparity as a Basis to Refuse Surrender [69] A surrender order deprives the person sought of their liberty and security of their person. In each case, this threatened deprivation must be in accordance with the principles of fundamental justice: Burns , at para. 59; Kindler , at p. 831, per La Forest J. [70] Section 7 of the Charter is concerned not only with the act of extradition, but also with the potential consequences of the act of extradition. A potential consequence of extradition of a person sought by the extradition partner for trial is the punishment that may be imposed in the event of conviction after trial: Burns , at paras. 59-60, citing Schmidt , at p. 522. [71] The surrender order of the Minister hands over the person sought to law enforcement authorities in the United States, the extradition partner in this case. The Minister’s order does not impose or constitute punishment. If punishment is to be imposed, it will be imposed by law enforcement authorities in the United States. [72] Since any punishment that might be imposed in the event of conviction is determined by law enforcement authorities in the jurisdiction of the extradition partner, that punishment is not subject to review under s. 12 of the Charter : Burns , at paras. 51, 54-57; Kindler , at p. 846, per McLachlin J.; and Schmidt , at pp. 518-19. The degree of causal remoteness between the Minister’s order surrendering a person and the potential imposition of a term of imprisonment, as one of several possible outcomes to the prosecution in the jurisdiction of the extradition partner, requires that our review of the Minister’s order be conducted under s. 7 of the Charter , not s. 12: Burns , at para. 57. [73] That said, our review of the Minister’s order to ensure its compliance with s. 7 of the Charter must keep in mind that the values underlying s. 12 form part of the balancing process under s. 7. In other words, the interpretation of s. 7, and thus our review of the Minister’s decision, is informed by s. 12: Burns , at para. 57; Kindler , at pp. 831, per La Forest J., 847, per McLachlin J.; and Schmidt , at p. 522. [74] The “shocks the conscience” standard described earlier allows for the possibility that even though the rights of the person sought are to be considered in the context of other applicable principles of fundamental justice, which are usually important enough to uphold extradition, a particular treatment or punishment may sufficiently violate our sense of fundamental justice that it tilts the balance against extradition: Burns , at para. 69. [75] Disparity between the potential sentence the person sought would face if convicted in the jurisdiction of the extradition partner and the potential sentence likely imposed if the person sought were convicted of the Canadian equivalent offence is a factor to be considered in the Minister’s decision and on review of that decision to determine whether the surrender order “shocks the conscience” of Canadians: Canada (Justice) v. Fischbacher , 2009 SCC 46, [2009] 3 S.C.R. 170, at para. 54; M.M. v. United States of America , 2015 SCC 62, [2015] 3 S.C.R. 973, at paras. 115-20. This difference in potential jeopardy must be balanced with myriad other factors, including comity and reciprocity, which underpin our extradition regime: M.M. , at paras. 26, 115-20; Kindler , at p. 847, per McLachlin J. [76] The mere fact of disparity between potential sentences in the jurisdiction of the extradition partner and those in Canada for the domestic equivalent offence is not sufficient to warrant refusal of a surrender order or setting it aside on review for want of compliance with the principles of fundamental justice. The disparity must be such that it meets the “shocks the conscience” standard: Burns , at para. 69; Schmidt , at pp. 522-23; United States of America v. Leonard , 2012 ONCA 622, 291 C.C.C. (3d) 549, at para. 94, leave to appeal refused, [2012] S.C.C.A. No. 543; and United States of America v. Wilcox , 2015 BCCA 39, 321 C.C.C. (3d) 82, at para. 41, leave to appeal refused, [2015] S.C.C.A. No. 124. The Canadian Equivalent Offence [77] The Canadian equivalent offence to those charged in the United States indictment is sexual interference, contrary to s. 151 of the Criminal Code . This offence is a dual procedure offence. When prosecuted by indictment, it is punishable on conviction by a minimum sentence of imprisonment of 1 year and a maximum sentence of 14 years: s. 151(a). [78] A sentence for an offence committed in Canada will infringe s. 12 of the Charter if the sentence is “grossly disproportionate” to the punishment that is appropriate to the nature of the offence and the circumstances of the offender: R. v. Nur , 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 39; R. v. Lloyd , 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 22. And a law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur , at para. 77; Lloyd , at para. 22. [79] Challenges under s. 12 of the Charter involve a two-step analysis. The first step requires the court to determine what constitutes a proportionate sentence for the offences committed having regard to the applicable objectives and principles of sentencing. The second step requires the court to decide whether the mandatory minimum sentence requires imposition of a sentence that is grossly disproportionate to the offence and its circumstances: Lloyd , at para. 23. [80] The Supreme Court of Canada has established a high bar for finding that a sentence represents a cruel and unusual punishment. A sentence that is merely excessive is not “grossly disproportionate”. More is required. The sentence must be so excessive as to outrage standards of decency and be abhorrent or intolerable to society. The wider the range of circumstances and conduct captured by a mandatory minimum sentence, the greater the likelihood that the mandatory minimum will apply to offenders for whom the sentence will be grossly disproportionate: Lloyd , at para. 24. [81] The mandatory minimum sentence of imprisonment for one year upon conviction on indictment of sexual interference has been found to breach s. 12 of the Charter and declared to be of no force or effect: R. v. Hood , 2018 NSCA 18, 45 C.R. (7th) 269, at para. 156; R. v. J.E.D ., 2018 MBCA 123, 368 C.C.C. (3d) 212, at paras. 107, per Steel J. (dissenting, but not on this point), 130, per Mainella and leMaistre JJ.A.; Caron Barrette c. R ., 2018 QCCA 516, 46 C.R. (7th) 400, at para. 116; R. v. B.J.T ., 2019 ONCA 694, 378 C.C.C. (3d) 238, at para. 75; R. v. Ford , 2019 ABCA 87, 371 C.C.C. (3d) 250, at para. 18; and R. v. Scofield , 2019 BCCA 3, 52 C.R. (7th) 379, at para. 89. [82] Despite the absence of a mandatory minimum sentence for sexual interference, this being the result of the declaration of constitutional invalidity just mentioned, that an offence involved abuse of a person under 18, or abuse of a person who is vulnerable because of personal circumstances, including because the person is Aboriginal and female, a sentencing court in Canada is required to give primary consideration to the sentencing objectives of denunciation and deterrence: Criminal Code , ss. 718.01 and 718.04. The Standard of Review [83] The appropriate standard of review for the Minister’s surrender decision is reasonableness. This is so regardless of whether the person sought contends that the extradition would infringe their rights under the Charter : Lake v. Canada (Minister of Justice) , 2008 SCC 23, [2008] 1 S.C.R. 761, at paras. 34, 41. [84] The Minister’s surrender decision resides at the extreme legislative end of the continuum of administrative decision making. It is a decision that is largely political in nature. The Minister has superior expertise in international relations and foreign affairs. Thus, the Minister is in the best position to determine whether the factors, taken as a whole, tilt the balance for or against extradition: India v. Badesha , 2017 SCC 44, [2017] 2 S.C.R. 127, at para. 39. [85] The breadth of the Minister’s discretion is reflected in the authorities that hold that interference with the Minister’s discretion is limited to exceptional cases of real substance. We are not entitled to re-assess the relevant factors and replace the Minister’s view with our own. We must determine whether the Minister’s decision falls within a range of reasonable outcomes. In other words, we ask whether the Minister considered the relevant facts and rendered a defensible conclusion: Lake , at paras. 34, 41. In this review, we must bear in mind the constraints imposed on the Minister by international law, including our treaty obligations: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 114. [86] A reasonableness review focuses on the actual decision that is its subject. This includes not only the decision maker’s reasoning process, but also the outcome. Our role is to review. At least as a general rule, we are to refrain from deciding the issue ourselves. We are not to ask what decision we would have made had we been assigned the task of the decision maker. Nor are we to attempt to determine the “range” of possible conclusions that would have been open to the decision maker. Nor are we to conduct a de novo analysis or try to determine the “correct” solution to the problem. We are to consider only whether the Minister’s surrender decision — including both its rationale and outcome — was reasonable: Vavilov, at para. 83. [87] Vavilov instructs that a reasonable decision is a decision based on an internally coherent and rational chain of analysis and justified in relation to the facts and law that constrain the decision maker. Reasonableness is concerned principally with the existence of justification, transparency and intelligibility within the decision-making process, and with whether the decision falls within a range of possible, acceptable outcomes defensible in respect of the facts and law. To be reasonable, a decision must be based on reasoning that is both logical and rational, and it must be tenable in light of the relevant factual and legal constraints: Vavilov , at paras. 85, 86, 99 and 101-2. [88] The Minister’s reasons must be read in light of the record and with due sensitivity to the extradition regime in which they were given: Vavilov , at paras. 105-7. The reasons will be unreasonable if, when read holistically, they fail to reveal a rational chain of analysis or do reveal that the decision was based on an irrational chain of analysis. A decision will also be unreasonable if the conclusion cannot follow from the analysis undertaken or if the reasons, read in conjunction with the record, do not make it possible to understand the decision maker’s reasoning on a critical point: Vavilov , at para. 103. The Principles Applied [89] As I will explain, I would not give effect to the submission that the surrender decision of the Minister is unreasonable. [90] At the outset, it is important to be clear about the potential consequences of the surrender order so that those consequences can be evaluated against the “unjust or oppressive” and “shocks the conscience” touchstone the applicant advances as the single ground on which a surrender should have been refused. [91] The surrender order mandates surrender on only three federal charges. Two counts of abusive sexual contact with a child under 12 and one count of aggravated sexual abuse of a child under 12. Almost by definition, civil commitment is not an offence, hence is not the subject of a count or charge in the indictment. Indeed, if the purpose for which the extradition partner sought extradition were civil commitment, it would be doubtful that this would be permitted by s. 3(1)(a) of the Act. [92] The surrender order, as s. 40(3) of the Act permits, is subject to assurances. Those assurances are that the applicant, on return to the jurisdiction of the extradition partner, will not be subject to any form of civil commitment “as set out in the attached letter from the United States Department of Justice dated March 13, 2020”. In that letter, the United States Department of Justice indicated that it would not pursue civil commitment of the applicant under federal law and that the applicant would not be civilly committed by the state in this case. On the conclusion of any sentence imposed on conviction, or on an acquittal, the applicant, as a Canadian citizen, would immediately be placed in federal deportation proceedings. Thus, the applicant would not be in state custody and his deportation would have priority over any state civil commitment proceedings. Nor would the United States object to the applicant’s transfer to Canada to serve the remainder of any sentence imposed in the United States if the Government of Canada or the applicant requests this within two years before the conclusion of any sentence imposed on him. [93] The United States indictment contains three counts. Two of those counts, of abusive sexual contact with a child under 12, do not attract a mandatory minimum sentence on conviction. The third, aggravated sexual abuse of a child under 12, has a mandatory minimum sentence of imprisonment of 30 years. [94] The Canadian equivalent offence — sexual interference under s. 151(a) of the Criminal Code — is subject to a statutory mandatory minimum sentence of imprisonment for one year. But that sentence has been declared to be of no force or effect because it constitutes cruel and unusual punishment. As a result, there is no mandatory minimum sentence for the Canadian equivalent offence to those with which the applicant is charged in the United States. A suggested range of sentence, were the offences committed in Ontario and the applicant convicted on indictment and sentenced here, is imprisonment for a term of between 90 days and 3 years. Statutory provisions such as ss. 718.01 and 718.04 accord primary consideration to the sentencing objectives of deterrence and denunciation. Also relevant are the principles expounded in R. v. Friesen , 2020 SCC 9, 391 C.C.C. (3d) 309, at paras. 60, 68, 70, 74, 77-78 and 101. [95] The Minister was asked by the applicant to refuse surrender on the ground that the surrender would be unjust or oppressive in all the circumstances under s. 44(1)(a) of the Act. The principal ground advanced on the applicant’s behalf was two-fold: i. the significant disparity between the sentences imposed on conviction in the United States (a minimum sentence of 30 years) and that likely in Canada for the equivalent offence under domestic law (no minimum sentence and a likely sentence of imprisonment of between 90 days and 3 years); and ii. the potential of indefinite civil detention under state law after sentence or even after acquittal with no meaningful right of review. [96] In his written reasons, the Minister considered whether surrender would be unjust or oppressive or contrary to s. 7 of the Charter . He acknowledged his obligation to consider the direct and indirect potential consequences of surrender, such as the punishment or treatment reasonably anticipated in the extradition partner’s jurisdiction. The Minister accepted that he was to assess the implications of surrender through the lens of s. 7 of the Charter as informed by the values underlying s. 12 of the Charter . In declining to exercise his discretion to refuse surrender as unjust or oppressive or contrary to s. 7 of the Charter , the Minister considered, among other factors: i. the civil commitment regime in the State of Minnesota; ii. the principle of double criminality; and iii. the sentence disparity between the potential U.S. sentence and the potential sentence in Canada on conviction of the comparable Canadian offence. [97] The applicant’s argument that disparity warrants refusal of surrender as unjust or oppressive pivots on the impact of determinations by Canadian courts that the statutory minimum mandatory sentence of imprisonment for one year for the comparable Canadian offence of sexual interference offends s. 12 of the Charter as cruel and unusual punishment and, accordingly, is of no force or effect. The applicant acknowledges that the finding of constitutional invalidity under s. 12 is based on reasonable hypotheticals and that s. 12 is not directly applicable to the United States minimum sentences, although it informs the analysis under s. 7. [98] As it seems to me, the argument advanced proves too much. The submission would mean that anytime a mandatory minimum sentence for a comparable Canadian offence was struck down as cruel and unusual punishment, if only based on reasonable hypotheticals, a mandatory minimum sentence of greater length in an extradition partner’s jurisdiction would constitute a sentence that would shock the conscience of Canadians, thus offending s. 7 of the Charter , and warrant refusal of surrender as unjust or oppressive under s. 44(1)(a) of the Act. This argument cannot prevail. [99] In combination, several factors persuade me that the submission that the Minister’s surrender decision is unreasonable fails. [100] To begin, the surrender decision falls at the extreme legislative end of the continuum of administrative decision making and is largely political in nature. The Minister has superior expertise in international relations and foreign affairs. This attracts substantial deference on judicial review. The surrender decision involves a balancing of competing interests. Interference on judicial review is limited to exceptional cases of “real substance”. It necessarily follows that we are disentitled to re-assess or re-weigh the factors considered by the Minister and substitute our own view in place of that of the Minister. [101] In our review of the reasonableness of the Minister’s surrender decision, we must also consider the restraints imposed on the Minister under international law, including under Canada’s treaty obligations. That Canada has entered into an extradition agreement with another country demonstrates a certain level of confidence in the administration of justice in that country, even if the system may be different from ours, with different priorities and disparate punishments. [102] The discrepancy in potential jeopardy between the extradition partner and Canada is not dispositive of whether the surrender shocks the conscience of Canadians, whether it would offend s. 7 of the Charter or whether it would warrant refusal as unjust or oppressive under s. 44(1)(a) of the Act. Other factors include the offence for which the penalty may be prescribed. The nature of the justice system in the extradition partner. The safeguards and guarantees it affords the person sought. And considerations of comity. [103] In this case, the Minister was well aware of the nature and extent of the disparity and of its importance to his surrender decision. He took steps to obtain assurances to reduce that disparity. He obtained assurances that no federal civil commitment proceedings would (or could) be taken and that state civil commitment proceedings would be foreclosed. The potential of civil commitment, a key factor in the applicant’s submissions to the Minister, has been removed from the mix by the inclusion of assurances in the surrender order. [104] As the Minister recognized, it is well settled that, absent sentences that would invoke consequences such as torture, the death penalty, excision of limbs and the like, the sentencing regimes of other nations, despite their significant severity compared to our own, will not generally “shock the conscience” of Canadians. [105] Further, it is important to keep in mind that the issue here is not whether the 30-year mandatory minimum sentence for one offence with which the applicant is charged in the United States — aggravated sexual abuse of a child under 12 — for the conduct alleged here would pass constitutional muster under s. 12 of the Charter . To frame the issue in this way would extend the measuring stick of s. 12 of the Charter to the sentencing regime of another country, our extradition partner. Rather, the issue, as the Minister recognized, was whether surrendering the applicant to an extradition partner where he would face that prospect would “shock the conscience” of Canadians contrary to s. 7 of the Charter or be unjust or oppressive contrary to s. 44(1)(a) of the Act. [106] Relatedly, implicit in the applicant’s argument is a submission that, since our domestic criminal and constitutional law would assuredly affix the label “cruel and unusual punishment” to a mandatory minimum sentence of 30 years’ imprisonment for our comparable offence, to surrender a person sought to an extradition partner where he would be subject to such a prospect necessarily offends the principles of fundamental justice and is unjust or oppressive. This comes uncomfortably close to an extra-territorial application of s. 12 of the Charter . What is more, it would uproot in the extradition context the holding in Lloyd , at paras. 40 and 47, that proportionality in sentencing is not itself a principle of fundamental justice. Disposition [107] For these reasons, I would dismiss the application to review the Minister’s surrender decision. Released: June 22, 2021 “JS” “David Watt J.A.” “I agree. Janet Simmons J.A.” “I agree. L.B. Roberts J.A.”

SIR PAUL KENNEDY: This is a claimant's appeal against the decision of the Immigration Appeal Tribunal, dated 2nd February 2005, and it is concerned with the way in which the Tribunal dealt with the evidence of an expert, Dr Jennings. To set the matter in context it is necessary to outline the facts in the history of the claim. The appellant, who was born on 3rd March 1986, is a native of the Ivory Coast. On 28th December 2002, he arrived illegally in the United Kingdom by ship and, on 30th December 2002, he applied for asylum. He claimed to be a Muslim and a French speaking member of the Fulla tribe from Danane where most of the population are Yacoubas and are not Muslims. His father had worked as a Marabout or spiritual leader and his mother was a housewife. He said that on 28th November 2002 his town was attacked by rebels and he and his father were captured. They were taken to a rebel base where his father was accused of helping the FPI and was shot at and then hanged in the presence of the appellant. The appellant was then taken elsewhere. He was made to drink alcohol and to smoke, which was against his faith. He admitted being able to drive and was given a 4-by-4 vehicle and a gun. He then drove groups of rebels on pillaging expeditions and pretended to co-operate in order to save his life. After a few days, when his party was raiding shops, he found himself alone and took the opportunity to drive off with some of the money that the thieves had stolen. He then abandoned the vehicle and made his way to San-Pedro where he saw some people from Danane who thought he was a rebel. He also saw a man named Opoko, to whom he gave the stolen money, and in return he was stowed on the vessel which brought him to England. During the journey he was repeatedly subjected to buggery but was afraid to complain lest he be reported to the captain and thrown over board. After he arrived in England he was medically examined and his condition found to be consistent with his complaint of repeated sexual abuse. The appellant's claim for asylum was rejected by the Secretary of State on 24th February 2003. In broad terms the Secretary of State was sceptical about the appellant's account and was satisfied that he could safely be returned to the Ivory Coast. The appellant then appealed to an adjudicator, Mr Price, who gave his decision on 20th August 2003. He accepted that the appellant's father had been murdered as the appellant alleged and that he was forced to become a boy soldier. He also accepted that the appellant escaped, but he did not accept his account of being left in charge of money. Nevertheless the adjudicator accepted that the appellant did manage to negotiate his passage to England and that on the journey he was sexually abused, as he had alleged. However, the adjudicator did not find that the appellant was specifically targeted for a Convention reason. As he pointed out, the language of the Convention does not apply to a break down of law and order occasioned by a civil war. So far as the claim for asylum was concerned, it should, in the opinion of the adjudicator, be possible for the appellant to relocate. He did not have to consider any claim under the European Convention on Human Rights because the appellant had been granted exceptional leave to remain until 3rd March 2004, that is to say his 18th birthday. The adjudicator did, however, indicate that if he had been in a position to consider a human rights claim he would have concluded that this, in his words, severally traumatised young man should not be returned to the Ivory Coast. The appellant then appealed to the Immigration Appeal Tribunal, which heard his appeal on 18th June 2004, but for reasons, of which we are unaware, did not give its decision until 30th December 2004. It concluded that the adjudicator had erred in law in failing to take into account a report from Dr Jennings, dated 17th July 2003, which was before him. That error was apparently conceded by the Home Office Presenting Officer before the Immigration Appeal Tribunal, which is, on the face of it, a little surprising because the adjudicator had said, at paragraph 57 of his determination, that when assessing the credibility of the appellant's account, and his claim as a whole, he had considered, amongst other things, the objective material which had been brought to his attention. Having identified that error of law, the Immigration Appeal Tribunal was entitled, as it said, to consider the weight to be given not only to Dr Jennings' original report, but also to his later report, of 24th May 2004, which was prepared some ten months after the adjudicator had reached his determination. The Immigration Appeal Tribunal was not impressed with the reports for reasons that it gave in paragraphs 29 to 31 of its determination. Those reasons can be summarised thus: first, despite his academic qualifications Dr Jennings had no first-hand experience of the Ivory Coast. He had not lived there and so far as the Tribunal was aware he had not even visited. He derived his information entirely from media and other reports. Secondly, he in both reports expressed his opinions, for the most part, without reference to sources and without explaining his reasons for his views. The Immigration Appeal Tribunal then considered the rest of the evidence and agreed with the adjudicator that the appellant had failed to show that if returned to the Ivory Coast he would be at real risk of persecution for a Convention reason. It therefore dismissed his appeal. Miss Weston, on behalf of the appellant, submits that the Tribunal fell into error in dealing with the evidence of Dr Jennings as it did. She submits, and I for my part would accept, that it is no answer to the point that the expert was, on the face of it, properly qualified and indeed had a number of academic qualifications to say that he had not visited the territory about which he wished to speak. The fact was that he had assembled and considered a great deal of information and that put him in a position in which he would be able to assist the Tribunal in a way which they would not otherwise have enjoyed. So much for the qualifications of the expert. An expert, in my judgment, can be perfectly well qualified to speak about a territory without himself having been there, and this expert, on the face of it, was in precisely that position. What then of the Tribunal's other reason for dismissing the evidence of Dr Jennings? As Mr Tam, for the Secretary of State, has pointed out: the Tribunal clearly attached more significance to its second reason because it said. "more importantly, although Dr Jennings has expressed his opinions freely in his two reports, unfortunately he has failed, for the most part, to identify his sources for those opinions, or to explain his reasons for arriving at the views expressed by him." If one looks at the structure of the two reports prepared by Dr Jennings, and they are both quite substantial reports, it is clear that he sets out, in the early part of each report, the information that he has been able to obtain. Helpfully most of it is set out in chronological order, so that one can see the build-up of the situation in the Ivory Coast over the relevant period. He then went on in each of the reports to consider the impact of that information upon this particular individual: the probable impact, in particular, if he were to be returned. He came to the conclusion that the impact upon him would be not inconsiderable. At one point he said this: "In summary, owing to the peculiar nature of [K's] experience in the civil war (part of an ethnic group attacked by one of the main rebel constituencies, fleeing from the rebels after escaping, being a northern Muslim), he is at considerable risk in both the government and rebel controlled areas. By virtue of his ethnicity [that is a convention reason] he would face potential violent threats and actual harm, regardless of whether the particularities of his case were known, in all areas. The political and security situation in Ivory Coast is exceptionally volatile, and has become more so over the course of the last month, and represents a real danger to the safety of [K]." Of course, it may be said that that last sentence can be regarded as merely a comment about an unstable situation attributable to civil war, but it is quite clear that earlier in that paragraph the expert is addressing a risk which is particular to the individual. He addresses it at more than one place. He points out that he was a Muslim from a minority tribe in the western part of the Ivory Coast. Having regard to the experience that he underwent, he might well be regarded as somebody who had taken the side of the rebels. He would, therefore, be regarded as suspect from a government agency point of view. Equally the rebels would know that he was someone who had, on his account, fled from their company after a very short period of time, apparently taking with him a vehicle and, if his account were to be believed, money as well. He would therefore be someone whom, at any rate at local level, they would regard as being not one of them. Therefore, both on account of his ethnicity and on account of his faith, he would be someone who certain people in the Ivory Coast would clearly regard as being a possible target in an unstable situation. Mr Tam invited our attention to a particular part of the reports of Dr Jennings that he said illustrated the way in which Dr Jennings failed to show the sources from which he derived his opinions. Therefore, I read out the passage that appears on page 83 under the heading "Response of MPIGO." That was the rebel group with which the appellant was forced to operate for a short period of time. The passage reads: "In my view, the leadership are unlikely to actively seek out and harm those who escaped from their control. However, local members of MPIGO might well seek to exact some form of retribution, which could well include extra judicial killing or inhuman punishments, on [K], particularly if a large quantity of money was taken by him. The ability of the leadership to control its members is likely to be weak in the current circumstances, and government soldiers and police in the areas which are still effectively controlled by rebel forces are non-existent. Even once official security forces have been re-established, it is unlikely that they will challenge the authority of MPIGO and they would most likely be drawn from its membership. In the event of an attack, or threatened attack, on [K] there would therefore be little in the way of a support and protection mechanism from the government authorities. If [K] was to be returned to Danane or the surrounding areas my assessment of the risk to him must therefore be rated as high. Rebel supporters and low-level fighters have both the motivation and the ability to carry out reprisals. This risk is most significant for prominent anti-rebel activists, but should an escapee such as [K] be caught or come to the attention of particular elements in MPIGO, there is a substantial risk of reprisal which could result in his death or ill-treatment." Mr Tam's submission is that that passage is not adequately reasoned. For my part, I have difficulty in understanding that submission, having regard to the earlier part of the report which clearly sets out, in some detail, the history of events in that part of the world. Furthermore, Mr Tam submits that the passage is inherently inconsistent because at one point Dr Jennings assesses the risk to the appellant as high, whereas in the earlier part of his opinion he merely talks about possible risks to this individual. As Miss Weston pointed out in reply: where the expert is talking of the risks being high he is assessing the risks if the applicant were to be returned to his native area. One can see, in the structure of the report as a whole, why he would be particularly at risk if returned there. The report does also deal with the possibility of his being returned elsewhere and comes to the conclusion that that would not be a safe alternative option. Of course, it was not inevitable that the Tribunal would accept the views of the expert if it had considered them in detail. It might have come to the conclusion that there were reasons for rejecting the conclusions at which the expert had arrived. It can always be said that in this kind of case it is the function of the Tribunal, in the end, to decide what the risk is. On occasions the Tribunal may have to arrive at a conclusion that is markedly different from that arrived at by one of the experts whose report has been put in front of them. What I, for my part, find difficult about this case is that the Tribunal, in my judgment, did not engage with that part of the exercise. It simply dismissed this expert's report for the two reasons that I have given, namely that he had no first-hand experience of the Ivory cost and secondly, that his opinions were expressed, for the most part, without reference to sources and without explaining his reasons for his views. In my judgment, on the face of it, this expert did clearly qualify as an expert to be listened to. When his reports were read it should have been obvious to the Tribunal that they raised issues that needed to be individually addressed and could not simply be swept aside by saying that the passages, that were critical, were not sufficiently reasoned. I would, therefore, set aside the decision of the Immigration Appeal Tribunal in this case and remit the matter to the Asylum and Immigration Appeal Tribunal for the matter to be reheard and dealt with in an appropriate way. Finally, I should say this: there was some suggestion before us that we should, in this case, express a view about the way in which Tribunals in general deal with expert evidence. I do not regard this as a case in which it would be appropriate to express any view that goes beyond the evidence of this particular expert. If the Tribunal has difficulty with the qualifications of a particular expert, then, as it seems to me, it must explain why it has such difficulty and in this case I do not find the explanation to be adequate. If the Tribunal has difficulty with the content of an expert report, again it must explain why it has that difficulty. Again, for the reasons that I have explained, I would not regard the explanation given here as adequate. The decision, in my judgment, in this case should be regarded as a decision on the facts of this case without any general ramifications. LORD JUSTICE WALL: I agree. THE PRESIDENT: I also agree.

FOURTH SECTION CASE OF MATIA v. SLOVAKIA (Application no. 33827/03) JUDGMENT STRASBOURG 27 November 2007 FINAL 27/02/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Matia v. Slovakia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello,MrK. Traja,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta,MrsP. Hirvelä, judges,and Mr T.L. Early, Section Registrar, Having deliberated in private on 6 November 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 33827/03) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Ivan Matia (“the applicant”), on 15 October 2003. 2. The applicant was represented by Mr R. Žikla, a lawyer practising in Košice. The Slovak Government (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. On 30 August 2006 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1956 and lives in Kosice. 5. The applicant is a sports journalist. On 18 November 1997 a local daily newspaper published an article containing negative remarks about the applicant's professionalism, ethics and education. 6. On 26 January 1998 the applicant brought a libel action in the Košice II District Court (Okresný súd) against the chief editor of the daily and “his office”. He sought a judicial order that the defendants publish a correction of the libellous information. In the course of the action there have been several corporate and personal changes on the side of the defendants causing ambiguity as to their standing to be sued in the case. 7. On 25 March and 18 May 1998, respectively, the District Court invited the applicant to submit further information and to pay the court fee. The applicant complied on 2 April and 26 May 1998, respectively. 8. On 21 December 1998 the applicant amended the action and submitted a further specification of who the defendants were. 9. On 22 March 1999 the District Court ruled that the modification of the scope of the action was impermissible. On 30 December 1999 the Košice Regional Court (Krajský súd) overturned this decision on the applicant's appeal and approved the modification. 10. Between 1 October 1998 and 2 October 2001 the District Court held 3 hearings that were adjourned due to the absence of the defendant. Another 2 hearings were scheduled but did not take place because the judge was absent for health reasons. 11. On 21 August 2002 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). He contended that the length of the proceedings in his action was excessive and claimed 935,000 Slovakian korunas[1] (SKK) in damages. 12. On 16 April 2003 the Constitutional Court found that there had been a violation of the applicant's right to a hearing “without undue delay” (Article 48 § 2 of the Constitution) and within a “reasonable time” (Article 6 § 1 of the Convention) in his action. The Constitutional Court ordered that the District Court proceed with the matter promptly; pay the applicant SKK 40,000[2] by way of compensation in respect of non‑pecuniary damage; and reimburse the applicant's legal costs. The subject‑matter of the proceedings was neither legally nor factually complex. The applicant had caused no delays and what was at stake for him called for special diligence. However, for almost 3 years, the District Court had proceeded with the case inefficiently. 13. Between 12 December 2002 and 1 February 2005 the District Court took several decisions ascertaining who the defendants in the action were and correcting clerical errors in those decisions. The applicant challenged these decisions by way of appeals (odvolanie) and appeals on points of law (dovolanie). The latter were declared inadmissible on 25 August and 21 October 2005 as, in the circumstances, no such remedy was available. In this period, the District Court sought information from the Registry of Inhabitants concerning the address of one of the defendants and requested that court mail be served on him by the police. 14. According to the applicant, in the meantime the newspaper in question ceased to exist. 15. On 23 January 2006 the District Court requested the applicant to identify the defendants of his action in accordance with the applicable procedural requirements and the current state of affairs. He responded on 2 February 2006. The District Court then made further inquiries into who was to be sued in the case. 16. On 15 June 2006 the District Court held a hearing. It was adjourned and the applicant was again requested to specify who the defendants were. The proceedings are still pending. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 17. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 18. The Government argued that, as a result of the Constitutional Court's judgment of 16 April 2003, the applicant could no longer claim to be a victim, for the purposes of Article 34 of the Convention, of a violation of his right to a hearing within a reasonable time as regards the period that had already been examined by the Constitutional Court. They pointed out that the Constitutional Court had expressly acknowledged the infringement of the applicant's right and had provided him with preventive and compensatory redress. This redress was adequate and sufficient and it was compatible with the principles and practice of both the Constitutional Court and the Court. The Government emphasised the accessibility of the procedure before the Constitutional Court to the applicant and the promptness with which the Constitutional Court had dealt with his complaint and with which the just satisfaction had been paid to him. 19. The Government further submitted that the applicant could have raised the issue of any possible recurring delays in the proceedings in the period after the Constitutional Court's judgment by way of a fresh complaint under Article 127 of the Constitution. As he had not done so, he had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. 20. Nevertheless, as to the substance of the complaint, the Government admitted, with reference to the Constitutional Court's findings, that the applicant's right to a hearing within a reasonable time had been violated. 21. The applicant reiterated his complaint and argued that the redress which he had obtained from the Constitutional Court had not been appropriate. In particular, he argued that the amount of just satisfaction awarded to him by the Constitutional Court was unacceptably low and that delays in the proceedings had continued even after and despite the Constitutional Court's judgment. As a consequence of the excessive length of the proceedings and the way in which his action had been handled, the protection of his personal integrity had been rendered practically nugatory. 22. The Court observes that, in view of the Constitutional Court's judgment of 16 April 2003, the question arises whether the applicant can still claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of his right to a hearing within a reasonable time. 23. An applicant's status as a victim within the meaning of Article 34 of the Convention depends on whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see, among many other authorities, Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006-...). 24. In the present case the Constitutional Court expressly found that the District Court had violated the applicant's right to a hearing within a reasonable time, ordered that the proceedings be accelerated and awarded the applicant the equivalent of approximately EUR 1,050 in just satisfaction. 25. Whether the redress afforded to the applicant was adequate and sufficient having regard to Article 41 of the Convention falls to be determined in the light of the principles established under the Court's case-law (see, most recently, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-...). These include, most notably, the amount of the compensation awarded to the applicant and the effectiveness of the preventive measure applied (see Sika v. Slovakia (no. 3), no. 26840/02, § 54, 23 October 2007). 26. At the time of the Constitutional Court's examination of the length of the proceedings they had lasted five years and almost three months without a single decision on the merits. The amount awarded to the applicant by the Constitutional Court by way of just satisfaction is around 25% of what the Court would generally award in a similar situation in a Slovakian case. Although this amount of just satisfaction is relatively low, this does not of itself necessarily mean that it is incompatible with the Convention principles. 27. After the Constitutional Court's judgment, the proceedings have continued for more than another four years without a single decision on the merits and they are still pending today. This raises doubts as to what preventive effect, if any, the Constitutional Court's injunction actually had in accelerating the proceedings. 28. In view of the relatively low amount of just satisfaction awarded by the Constitutional Court in combination with the ineffectiveness of its injunction in accelerating the proceedings, the Court finds that the redress obtained by the applicant at the national level cannot be considered adequate and sufficient (see Scordino (no. 1), cited above, §§ 205-06 and 214-15). The applicant can accordingly still claim to be a “victim” of a breach of the “reasonable time” requirement. 29. The Court considers that the applicant was not required, for the purposes of Article 35 § 1 of the Convention, to resort to the remedy under Article 127 of the Constitution anew, as suggested by the respondent Government (see Tomláková v. Slovakia, no. 17709/04, § 35, 5 December 2006; Šidlová v. Slovakia, no. 50224/99, §§ 49 and 50, 26 September 2006; and, a contrario, Becová v. Slovakia (dec.), no. 23788/06, 18 September 2007). The complaint, accordingly, cannot be rejected for non-exhaustion of domestic remedies. 30. The period to be taken into consideration began on 26 January 1998 and has not yet ended It has thus lasted more than nine years and nine months in which period the merits of the case have only been pending at one level of jurisdiction. 31. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 32. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 33. The Court has frequently found a violation of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 34. Having examined all the material submitted to it and having regard to its case-law on the subject as well as the above mentioned admission by the Government, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. OTHER ALLEGED VIOLATIONS 35. In his observations in reply to those by the Government on the admissibility and merits of the application the applicant also alleged, with reference to the facts of the case, a violation of his rights under Articles 13, 14 and 17 of the Convention. 36. To the extent that these complaints have been substantiated, the Court finds no appearance of a violation of the applicant's rights protected under the Articles relied on. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 37. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 38. The applicant claimed 29,235 euros (EUR) plus interest in respect of non‑pecuniary damage. 39. The Government contested the claim. 40. Ruling on an equitable basis, having regard to its case-law on the subject (see the recapitulation of the relevant principles and, mutatis mutandis, their application in Scordino (no. 1), cited above, §§ 267-272), and taking into account the fact that the applicant has already obtained a measure of just satisfaction under the Constitutional Court's judgments of 16 April 2003, the Court awards him EUR 6,000 for non-pecuniary damage. B. Costs and expenses 41. The applicant also claimed EUR 1,674 for the costs and expenses. 42. The Government proposed that the Court determine this claim in accordance with its case-law. 43. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 300 covering costs under all heads. C. Default interest 44. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros) in respect of non-pecuniary damage and EUR 300 (three hundred euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 27 November 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BRATZARegistrarPresident [1] SKK 935,000 at the relevant time was equivalent to approximately 24,600 euros (EUR). [2] SKK 40,000 at the relevant time was equivalent to approximately EUR 1,050.

P. Sen, J. The Application for substitution is allowed and the Legal Representatives of the deceased-appellant are brought on record. Parties heard on merits. After hearing the learned Counsel for the parties we have numbermanner of doubt that the High Court was in error in holding that proceedings in suit were number governed by Section 12 3 a but by Clause b thereof and in remanding the case to the Appellate Court for determination as to whether the tenant was liable to be vacated under Clause b . Section 12 3 a provides that where there is numberdispute as to the rate of rent and there is a failure on the part of the tenant to deposit or pay the arrears of rent accrued due within one month of the date of service of numberice of demand, the Court shall pass a decree for eviction in terms of the Section.

LORD JUSTICE OTTON: This is a renewed application on notice for leave to appeal against the order of His Honour Judge Gilliland given in the Technology and Construction Court. The matter arises by virtue of a summons dated 6 November 1998 whereby QPS Consultants (the plaintiff and respondent to this application) sought an order debarring Kruger Tissue (the defendant and applicant) from further defending the claim and from pursuing its counterclaim on the ground that it had failed to comply with an unless order of His Honour Judge Howarth made on 21 September when he ordered that it serve by 9 October further and better particulars of its defence and counterclaim and further and better particulars of Schedule 2, failing which it would be debarred from defending the claim and bringing its counterclaim. Suffice it to say that a response was made to that unless order. However, the response was considered by the judge to be so inadequate as to justify activating the penal sanction in the unless order. As a result, and having heard argument, he struck out fundamental parts of the defence and counterclaim, cutting (as Mr Reese QC put it) a swathe through, in particular, the counterclaim. The primary question which arises is whether the judge was entitled to do so. When the matter came before me by way of the usual paper application, I considered that it was arguable that: (1) the judge erred in requiring more particulars of the future loss of profit, which are more appropriately a matter for expert evidence (ground 2 of the notice of appeal); and (2) that he adopted too strict an approach on the requirement to produce documents not already in the applicant's possession and which did not yet exist (ground 4). I also indicated that if other grounds were to be pursued, the application should be pursued at an oral hearing on notice, which has now taken place. Mr Colin Reese QC on behalf of the applicant raises a fundamental issue as to whether the judge was correct in his approach in this situation. The question, he suggests, is whether, having found that an attempt had been made to comply with the order, and in many instances satisfactory replies had been given, the judge erred in law and/or failed properly to exercise his discretion in striking out individual parts of the defence and counterclaim and the schedules (the first ground of appeal). I have been referred in the course of argument to three previous decisions which raise this interesting point. The first is Reiss v Woolf [1952] 2 QB 557, a decision of the full Court of Appeal; Grand Metropolitan Nominee (No 2) Co Ltd v Evans [1992] 1 WLR 1191, a decision of a two judge Court of Appeal; and Realkredit Danmark v York Montague Ltd (unreported, Ref No FC2 98/7480/1), a decision of Morritt and Tuckey LJJ. Suffice it to say that reliance is placed upon a particular passage of Devlin J (as he then was) when he said at page 559 in Reiss v Woolf: "The order does fix a time very precisely, and I think it can and should be fairly be construed as a time order. So construed, 'default' refers to default in the delivery of a document within the specified time. I do not, of course, mean that any document with writing on it will do. It must be a document made in good faith and which can fairly be entitled 'particulars'. .... that is the word used by Mr Bankes in argument in Davey v Bentinck [1893] 1 QB 185, 186. That is the test, in my judgment, and not, as the plaintiff contends, whether each demand for particulars has been substantially met. Applying that test, I think there has been no default." That principle has been applied in the two subsequent decisions to which reference has been made. Consequently, I consider that it is arguable that it was not within the judge's power or discretion in this case to make the order that he did. There is sufficient merit in the argument I have heard, notwithstanding the admirable way that Mr Manzoni at short notice has sought to persuade me otherwise, to make it worthy of review by the full court. (following further argument by counsel) LORD JUSTICE OTTON: I do not propose to give a judgment in respect of each of these items. I shall just indicate whether or not I consider whether or not there is an arguable point, and I am satisfied that there is just an arguable point on ground 3, but I would not hold out any hope or expectation that it will necessarily find favour with the full court. (following further argument by counsel) LORD JUSTICE OTTON: The second application concerns schedule 3 of the amended defence and counterclaim. The applicant sought permission to amend the schedule, which revised the figures for the period previously claimed, and which sought to update the claim for the losses actually incurred from February 1996 to June 1997 amd extended to the period February 1996 to February 1999. The schedules were displayed before the judge and require no reference on this application. In the event the judge refused permission to make this amendment on the grounds that the amendment sought to reinstate the claim for losses incurred after 1997, which the judge had previously struck out by an order dated 12 March 1999. When the matter came before me on the permission to appeal, I gave permission on ground 2 of the grounds of appeal, saying that it was arguable that the judge erred in requiring more particulars of the future loss of profit which were more appropriately a matter for expert advice. Consequently, the applicant renews the application for permission in respect of grounds 1 and 3, which also cover the loss of profits claim and this particular aspect in relation to schedule 3. It seems to me that it would be illogical not to allow this application in the light of what has gone before, not only when the matter was before me on paper but in the light of the rulings I have made this morning. (following further argument by counsel) LORD JUSTICE OTTON: The next application concerns ground 4 on the inability of the claimant to deal with the amendments in time for trial. It is said that the judge was in error in holding that the proposed amendments to items 47 to 78, 82 and 83 of Schedule 2 (which raised allegations of defects in the effluent plant) imposed a considerable burden on the claimant, and that there was a real risk that the claimant would not be able to deal with these matters in time for trial. Mr Reese has submitted that there were no grounds for the judge to come to that conclusion. The trial is set down to commence on 4 October and the order was dated 7 May. He acknowledges that there was no evidence from the experts and, in particular, there was no evidence from the effluent treatment plant experts. They would not be able properly to address the new defects. He also points out that the experts have met on previous occasions on a without prejudice basis, with a view no doubt to identifying the issues where there is no dispute, and those where the parties cannot be reconciled. What is unfortunate in this case is that there has been no disclosure at all of any of the expert evidence in support of the defendant's counterclaim in this regard. One might have expected that there would have been a unilateral disclosure of such evidence, particularly when it was known that the pleading was so vulnerable to being struck out. That was not to be. I am satisfied that the judge dealt with the situation as it then presented itself to him in a perfectly proper manner. He was at great pains to set out the arguments on both sides, and overwhelmingly they point to a decision in the exercise of discretion in the claimant's favour. I do not propose to read out the passages; they are pages 10-12, 15E-17, 21A-23E, 29F-30F and 31G-32G. In my view his reasoning cannot be criticised. The exercise of discretion was properly considered. He took into account the situation as it presented itself to him at that time and I see no reason at all to suspect that the exercise of discretion was in any way assailable. In those circumstances I would disallow this particular application. However, it may be -- and I give no indication, hope or expectation to either party -- that when the hearing of the appeal in its full form is considered by the full court, Mr Reese may be able to persuade their Lordships that the other parts of the appeal are well founded. This may (and I emphasise may), in the light of the decision of the Court of Appeal, if it sees fit to reverse the learned judge on other matters, give the court an opportunity to revisit this particular aspect of the claim. They might then be invited to set aside the exercise of discretion and to substitute their own discretion in the light of the case as it then is. This will require, in my view, a considerable amount of work on behalf of the defendants to get their block and tackle in order, which it is so lamentably not at this moment in time. It seems to me that this is a situation which is entirely of the defendants' making in the preparation of their counterclaim. It is disquieting that a counterclaim which I am told is worth in the region of £3m to £4m should have been in such a state of disarray with less than six months to go to the trial date which had been fixed at a substantial time earlier in the history of the action. For those reasons I would disallow this part of the application. ORDER: (Not part of judgment) Agreed minute of order to be lodged with the Civil Appeal Office; claimant's costs in the appeal. _______________________________

THIRD SECTION CASE OF BRAZHNIKOV AND OTHERS v. RUSSIA (Applications nos. 30454/08, 11655/10 and 19871/10) JUDGMENT STRASBOURG 21 July 2016 This judgment is final but it may be subject to editorial revision In the case of Brazhnikov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Hasan Bakırcı Deputy Section Registrar, Having deliberated in private on 30 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2. The applications were communicated to the Russian Government (“the Government”). 3. Having studied the terms of the Government’s unilateral declarations, the Court considers that the proposed declarations do not provide a sufficient basis for concluding that respect for human rights does not require it to continue its examination of these applications. The declarations are therefore rejected. THE FACTS 4. The list of applicants and the relevant details of the applications are set out in the appended table. 5. The applicants complained of the excessive length of their pre-trial detention. THE LAW I. JOINDER OF THE APPLICATIONS 6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 7. The applicants complained that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which read as follows: Article 5 § 3 “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 8. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references). 9. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case. 10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 11. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 12. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 13. Regard being had to the documents in its possession and to its case‑law (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sums indicated in the appended table. 14. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Rejects the Government’s request to strike the applications out of its list of cases under Article 39 of the Convention on the basis of the unilateral declarations which they submitted; 3. Declares the applications admissible; 4. Holds that these applications disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention; 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 21 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıHelena JäderblomDeputy RegistrarPresident APPENDIX List of applications raising complaints under Article 5 § 3 of the Convention (excessive length of pre-trial detention) No. Application no.Date of introduction Applicant name Date of birth / Date of registration Period of detention Length of detention Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 30454/08 08/05/2008 Sergey Aleksandrovich BRAZHNIKOV 28/10/1981 28/08/2007 to 20/12/2007 3 month(s) and 23 day(s) 1,000 11655/10 23/04/2010 Vitaliy Leonidovich ZYABKIN 22/11/1979 11/10/2009 to 23/03/2010 0 year(s) and 6 month(s) 1,000 19871/10 10/03/2010 Ilgiz Sagitovich YUZUMBAYEV 08/02/1981 27/11/2009 to 05/07/2010 7 month(s) and 9 day(s) 1,000 [1] Plus any tax that may be chargeable to the applicants.

2003 1 SCR 423 The following Order of the Court was delivered Delay companydoned. Though this is number a case which deserves grant of leave to prefer appeal-we think it appropriate to dispose of the petition with a reasoned order as many cases involving similar issues are being filed. According to the petitioner, he is entitled to set off as provided under Section 428 of the Code of Criminal Procedure, 1973 in short the Code for the period of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 in short COFEPOSA , since the detention was quashed by the Delhi High Court. Reliance is placed on a decision of this Court in Stale of Maharashtra and Another v. Najakat Alia Mubarak All, 2001 6 SCC 311 to companytend that the period is available to be set off against the period of sentence imposed on companyviction under Section 135 1 of the Customs Act, 1962 in short the Customs Act . Factual position is almost undisputed and needs to be numbered in brief. Prosecution version which led to trial of the accused petitioner is as follows The petitioner arrived at the Trivandrum Airport on 12.8.1985 from Dubai by Air India Flight No. A1 920. Though declaration was given by him about the possession of 16 items, numberhing was stated about possession of the gold. When his baggage was subjected to open examination, it was revealed that he was carrying 20 gold biscuits of the foreign origin . On the basis of the information furnished by the petitioner an electric water motor brought by him was opened and 70 gold biscuits were found companycealed. The total value of the illegally transported gold biscuits was fixed at around Rs. 22 lakhs. The Assistant Collector, Air Customs. Trivandrum Airport filed a companyplaint and the petitioner faced trial by the Additional Chief Judicial Magistrate Economic Offences Ernakulam. As numbered above, he was found guilty of offence punishable under Section 135 1 of the Customs Act and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 20,000 with default stipulation of two months simple imprisonment. Appeal before the Sessions Court, Ernakulam was partly allowed and the custodial sentence was reduced to two years. The fine amount was maintained, but default stipulation partly modified. In the revision filed before the Kerala High Court, the companyviction and sentence imposed were challenged. Additionally, it was prayed that the period of detention under the COFEPOSA was for two years and should be set off in terms of Section 428 of the Code. The High Court rejected the revision on merits. The plea relating to set off was also turned down. It was held that the period spent under COFEPOSA was number to be companysidered as detention for the purpose of the criminal case. It was further numbered that the petitioner was on bail while the detention order was passed and, therefore, cannot be treated to be an under-trial prisoner. He was in judicial custody when detained under the COFEPOSA. After detention under COFEPOSA, bail granted was number cancelled and, therefore, the petitioner was number an under-trial prisoner. In support of the application for grant of leave, strong reliance was placed on the decision in State of Maharashtra and Ors. v. Naiakat Alia Mubarak AH, supra . It was submitted that the period of imprisonment undergone by an accused as an under-trial during investigation, enquiry or trial of a particular case irrespective of whether it was in companynection with the same case or any other can be set off against the sentence of imprisonment imposed on companyviction in that particular case. It was further submitted that the facts situation is identical to those involved in Government of Andhra Pradesh and Anr. v. Anne Venkatesware and Ors., 1977 3 SCC 298. In order to appreciate the stand of the petitioner, Section 428 of the Code needs to be numbered. The provision reads as follows Section 428 Period of detention undergone by the accused to be set off against the sentence of imprisonment-Where an accused person has, on companyviction, been sentenced to imprisonment for a term, number being imprisonment in default of payment of fine, the period of detention. If any, undergone by him during the investigations, inquiry, or trial of the same case and before the date of such companyviction, shall be set off against the term of imprisonment imposed on him on such companyviction and the liability of such person to undergo imprisonment on such companyviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him. The two requisites postulated in Section 428 of the Code are- During the stage of investigation, enquiry or trial of a particular case the prisoner should have been in jail at least for a certain period He should have been sentenced to a term of imprisonment in that case. If the above two companyditions are satisfied then the operative part of, the provision companyes into play i.e. if the sentence of imprisonment awarded is longer than the period of detention undergone by him during the stages of investigation, enquiry or trial, the companyvicted person need undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. Section 428 of the Code was brought on the statute book for the first time in 1973. It was incorporated in the light of the proposal put forward by the Joint Select Committee. It was numbericed by the Committee that in many cases the accused persons are kept in prison for a very long period as under-trial prisoners and in some cases the period spent in jail by undertrial prisoners far exceeded the sentence of imprisonment ultimately awarded. It was also numbericed by the Committee with companycern that large number of prisoners in the over-crowded jails of the companyntry were undertrial prisoners. Provision was introduced to remedy the unsatisfactory state of affairs, by providing for setting off the period of detention as under-trial prisoners against the sentence of imprisonment imposed on the accused. Views of the Committee were expressed in following words The Committee has numbered the distressing fact that in many cases accused persons are kept in prison for very long period as undertrial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as undertrial prisoner. Indeed, there may even be cases where such a person is acquitted. No doubt, sometimes companyrts do take into account the period of detention undergone as undertrial prisoner when passing sentence and occasionally the sentence of imprisonment is restricted to the period already undergone. But this is number always the case so that in many cases the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute. The Committee has also numbered that a large number of persons in the overcrowded jails of today are undertrial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs. The new clause provides for the setting off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on him. The Committee trusts that the provision companytained in the new clause would go a long way to mitigate the evil. In Government of Andhra Pradesh and Anr. v. Anne Venkatesware and Ors., supra it was observed that Section 428 provides for set off of the period of detention of an accused as an under-trial prisoner against the term of imprisonment imposed on him on companyviction. It only provides for a set off but does number equate an under-trial detention or the detention with imprisonment on companyviction. The provision as to set off expresses a legislative policy this does number mean that it does away with the difference in the two kinds of detention and outs things on the same footing for all purposes. A preventive detention as was held in Rex v. Halliday 1917 AC 260-268 is number punitive but precautionary measure. The object is number to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. No offence is proved, number any charge is formulated and the justification of such detention is suspicion or reasonable probability and there is numbercriminal companyviction which can only be warranted by legal evidence. In this sense it is an anticipatory action. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. In case of punitive detention the person companycerned is detained by way of punishment after being found guilty of wrong doing where he has the fullest opportunity to defend himself, while preventive detention is number by way of punishment at all, but it is intended to prevent a person from indulging in any companyduct injurious to the society. This position was numbericed by this Court in Mr. Kubic Dariusz v. Union of India and Ors., AIR 1990 SC 605. In Government of Andhra Pradesh and Anr. v. Anne Venkatesware and Ors., supra this Court observed as follows It is true that section speaks of the period of detention undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the case in which the accused person has been companyvicted. The section makes it clear that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on companyviction must be during the investigation, enquiry or trial in companynection with the same case in which he has been companyvicted. We, therefore, agree with the High Court that the period during which the writ petitioners were in preventive detention cannot be set off under Section 428 against the term of imprisonment imposed on them. The view was reiterated by a three-Judge Bench of this Court in Champalal Puniaji Shah v. State of Maharashtra, 1982 1 SCC 507.

CRIMINAL APPEALS SLP CRL Nos.1840 1846 OF 2010 Leave granted. These appeals emanate from the judgment and orders dated 15.12.2009 passed by the learned Single Judge of the High Court of Judicature at Rajasthan in S.B. Criminal Miscellaneous Petition Nos.595 of 2009 and 599 of 2009. This is a gang rape case. In the impugned judgment the High companyrt has observed that ample opportunities were provided to the prosecution to produce the witnesses but the same have number been availed by the prosecution, on the companytrary, the Special Public Prosecutor remained absent on several occasions and he appears to be number interested in companypletion of the trial of this case. In the impugned judgment the High Court was justified in observing that the companyduct of the prosecution in the entire case has been reprehensible. Ordinarily this Court would number have interfered with the impugned judgment but for the fact that this is a very serious crime of gang rape, therefore, this unusual latitude is granted to the State. Otherwise order-sheet of the Trial Court clearly reveal the companyduct of the prosecution in this case. All the accused, including Rajesh Chaudhary, Harish Sihag and Narendra Sihag have already been released on bail. In the facts and circumstances of this case, looking to the companyduct of the State in the entire case, we direct the State of Rajasthan to pay Rs.2 lakhs as companyts to the Rajasthan State Legal Services Authority within four weeks from today. The companycerned District Sessions Judge is directed to companyduct an inquiry as to why this matter has been proceeded in this manner and take action against erring officials persons and submit a report to this Court within four months from today. Dr. Manish Singhvi, learned Additional Advocate General appearing for the State of Rajasthan submitted that accused Nos.1 to 7 have already cross-examined the prosecutrix in this case. Accused Nos.8 to 12 have number cross-examined the prosecutrix. Looking to the fact that this is a gang rape case and in the larger interest of justice, we grant one more opportunity to the State of Rajasthan to lead evidence in this case including crossexamination of the prosecutrix. Let the entire prosecution evidence be companycluded positively on or before 30th November, 2011. We direct the parties to appear before the Fast Track Court on 19th September, 2011. The learned Presiding Judge of the Fast Track Court shall proceed to companyduct the trial of this case on day-to-day basis and shall number grant unnecessary adjournments either on behalf of the State or any of the accused and companyclude the trial as expeditiously as possible, in any event, within six months from the date of companymunication of this order. In view of the order passed above, the impugned orders passed by the High Court are set aside and the appeals are disposed of accordingly. L.P. CRL. No.

THIRD SECTION CASE OF MIHĂILĂ v. ROMANIA (Application no. 66630/10) JUDGMENT STRASBOURG 11 February 2014 FINAL 11/05/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mihăilă v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Ján Šikuta,Nona Tsotsoria,Kristina Pardalos,Johannes Silvis,Iulia Antoanella Motoc, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 21 January 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 66630/10) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Daniel Claudiu Mihăilă (“the applicant”), on 3 November 2010. 2. The applicant was represented by Ms M. Stan, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were initially represented by their Co-Agent, Ms I. Cambrea, of the Ministry of Foreign Affairs. 3. The applicant alleged, in particular, that he had been held in Jilava Prison in conditions that were incompatible with the requirements of Article 3 of the Convention. 4. On 23 January 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1973 and lives in Iaşi. 6. On 14 December 2009 the District Court convicted the applicant of battery and threatening behaviour, for which he was sentenced to two and a half years’ imprisonment and ordered to pay a fine. The conviction was upheld by the Bucharest County Court on 3 May 2010, following an unsuccessful appeal by the applicant. 7. On 26 January 2010 the applicant started serving his sentence. He was released from prison on 1 March 2011. A. Applicant’s description of the prison conditions 8. The applicant provided the following description of the conditions of his detention in Jilava Prison. There was a general problem of overcrowding and constant noise. Cells were dirty, the air was stale and there were cockroaches, rats, bedbugs and lice in the cells and beds. Hygiene conditions were poor throughout the prison, including in the kitchen and in the toilets, where there was no privacy. The building was poorly insulated, which made it very cold in the winter and very hot in the summer, when the temperature could often reach 50oC. Living in those conditions had caused him to lose consciousness several times. 9. The tap water was undrinkable, being filled with impurities and rust from the pipes. The food was of poor quality and cooked with the prison water. In addition, there were cockroaches on the canteen tables and the place was infested with mice. 10. The applicant maintained that drugs were dealt openly in the prison and that drug users would attack him, steal his clothes and abuse him in order to get money for drugs. He did not report the abuse, as his attackers had threatened to kill him if he did. 11. The applicant stated that after the first six months of his detention, he was deprived of sleep, food and water, had lost his teeth and weight, and had become depressed. B. Conditions of detention according to the official prison records 12. According to the official prison records, the applicant was transferred sixteen times during his detention but served most of his sentence in Jilava Prison. The cells he was placed in measured between 36 and 38.34 sq. m and contained eighteen or nineteen beds, most of the time being slightly below full capacity. The applicant had between 2 and 3.4 sq. m of personal space in his cell at all times. 13. As the applicant was assigned to a semi-open regime (regim semi‑deschis), cell doors were left open except when food was served, and he had daily access to the courtyard between 8 and 11 a.m. and again between 1 and 5 p.m. Cells could be aired by opening the windows. The applicant had unrestricted access to the toilet, which was completely separated from the cell living space by a wall. There was central heating throughout the prison. Detainees had access to showers twice a week; the shower rooms had even been renovated in 2009. 14. The quality of water was tested periodically and that of food daily. The results were satisfactory. 15. Hygiene and pest control were performed by specialist companies. Toilets were disinfected daily and cells whenever necessary. 16. Prisoners’ clothes were washed weekly upon request. II. RELEVANT DOMESTIC LAW 17. Excerpts from Law no. 275/2006 on the execution of sentences concerning the rights of detainees and the remedies provided therein are summarised in Iacov Stanciu v. Romania (no. 35972/05, §§ 113‑119, 24 July 2012). 18. The relevant findings and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) and the reports by the Council of Europe Commissioner for Human Rights, made following numerous visits to Romanian prisons, including Jilava Prison, are also summarised in Iacov Stanciu (cited above, §§ 125-129). 19. The relevant part of the report of the Romanian Helsinki Committee of 12 June 2008 in respect of the conditions of detention in Jilava Prison reads as follows: “... the basement of the old part of the prison building was completely flooded with waste water ... Consequently, rats and cockroaches (and bedbugs according to some detainees) have infested the cells in that part of the building. Moreover, most cells were also infested with lice, mainly due to worn out bed mattresses. No delousing operation could be effective as long as the mattresses were not replaced ... The prison management claimed it had engaged several pest control companies, which all gave up after taking note of the situation in the prison. Another notorious problem was the extremely poor water quality (muddy and filled with impurities) - unfit for drinking and risky even for washing ... In terms of detention space, the total area of detention space was 3,034.81 sq. m, while the population was 1,460 meaning 2.08 sq. m of available detention space per detainee, half of the minimum norm recommended by the CPT ... The kitchen area was totally unhygienic and the food quality was poor ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 20. Relying on Articles 3 and 5 of the Convention, the applicant complained about the conditions of his detention in Jilava Prison. 21. The complaint falls to be examined under Article 3 of the Convention which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 22. The Government raised an objection of non-exhaustion of domestic remedies, arguing that the applicant had failed to lodge any complaint against the prison administration concerning the conditions of his detention or the deterioration of his health in prison. 23. The applicant did not present his arguments within the time-limits set by the Court. 24. The Court notes that the applicant’s complaint concerns the material conditions of his detention relating, inter alia, to overcrowding and poor sanitary facilities. He did not formulate a separate complaint concerning healthcare in prison, and described his health issues only to substantiate his allegations about the poor conditions of detention. 25. The Court has already found, in numerous similar cases regarding complaints about material conditions of detention relating to structural issues such as overcrowding or dilapidated installations, that given the specific nature of this type of complaint, the legal actions suggested by the Romanian Government do not constitute effective remedies (see, among other authorities, Petrea v. Romania, no. 4792/03, § 37, 29 April 2008; Cucu v. Romania, no. 22362/06, § 73, 13 November 2012; and Niculescu v. Romania, no. 25333/03, § 75, 25 June 2013). 26. The Government’s objection should therefore be dismissed. 27. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 28. The applicant argued that the conditions of his detention had fallen short of the standards imposed by the Court in its case-law on the matter. 29. The Government contested his arguments, based on the official prison records. 30. The Court refers to the principles established in its case-law regarding conditions of detention (see, for instance, Kudła v. Poland [GC], no. 30210/96, §§ 90-94, ECHR 2000-XI; Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; and Iacov Stanciu, cited above, §§ 165-170). It reiterates, in particular, that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3; the assessment of this minimum is, in the nature of things, relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see Kudła, cited above, § 91). 31. The Court has considered extreme lack of space as a central factor in its analysis of whether an applicant’s detention conditions complied with Article 3 (see Karalevičius v. Lithuania, no. 53254/99, § 39, 7 April 2005). In a series of cases, the Court considered that a clear case of overcrowding was a sufficient element for concluding that Article 3 of the Convention had been violated (see Colesnicov v. Romania, no. 36479/03, §§ 78-82, 21 December 2010, and Budaca v. Romania, no. 57260/10, §§ 40-45, 17 July 2012). Moreover, it has already found violations of Article 3 of the Convention on account of the material conditions of detention in Jilava Prison, especially with respect to overcrowding and lack of hygiene (see, for example, Cucu, cited above, §§ 9 and 82; Goh v. Romania, no. 9643/03, § 66, 21 June 2011; Györgypál v. Romania, no. 29540/08, § 73, 26 March 2013; and Constantin Tudor v. Romania, no. 43543/09, § 75, 18 June 2013). 32. In the case at hand, the Government has failed to put forward any argument that would allow the Court to reach a different conclusion. 33. Moreover, the applicant’s submissions in respect of the overcrowded and unhygienic conditions correspond to the general findings by the CPT in respect of Romanian prisons (see paragraph 18 above) and to the findings of the report of the Romanian Helsinki Committee in respect of Jilava Prison (see paragraph 19 above). 34. The Court concludes that the conditions of detention caused the applicant harm that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of degrading treatment proscribed by Article 3. There has accordingly been a violation of Article 3 of the Convention in respect of the material conditions of the applicant’s detention in Jilava Prison. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 35. The applicant complained under Article 6 of the Convention that the criminal proceedings against him had been unfair, and that his right to the presumption of innocence had been breached by the prosecutor dealing with his case. 36. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 37. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 38. The applicant did not submit a claim for just satisfaction within the time-limits set. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning the conditions of detention in Jilava Prison admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Dismisses the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident

LORD JUSTICE WALL: This is an application by Miss A for permission to appeal against a care order made by Mr Peter Jackson QC sitting as a deputy judge at the High Court on 4 November 2005. It was a reserved judgment, the hearing having occupied the period between 3 and 7 October. The subject of the proceedings was a little boy, T, born on 26 September 2001 and so just four when the judge heard the case. The matter came to me on paper for permission. I refused permission, indicating not simply on the merits but in relation to timing that I thought it unlikely that the full court would grant an extension of time. I am myself glad, as always in this situation, that the matter has been heard by a court containing two judges, because where one expresses a view on paper it is always important, I think, to have a second opinion. The case has been argued this afternoon by Mr Baker on Miss A's behalf, if I may say so, extremely well. Indeed, I do not think it could have been better argued and I have, of course, listened with the greatest care to everything he says. One cannot but have considerable sympathy for Miss A who, having enormous difficulties in her past, has in the recent period leading up to the hearing and since made every effort to rid herself particularly of her drug addiction, and has made every effort to show her devotion to her child, who is clearly in a very close relationship with her. But despite that, I have come to the very clear conclusion that the judgment of the deputy judge cannot be impugned. Before I even get to that, as I indicated in the papers when I had the matter on paper, the delay in bringing the case to this court is frankly and simply unacceptable. We are dealing here with a small child. The judge's judgment, which was handed down, or at least available in writing, was available on 4 November 2005. There was, therefore, no question of getting a transcript; the judgment was ready and available, and yet the appellants notice is not filed until some six months later, and this in a case where the expert evidence and the judge all made it absolutely clear that this little boy's future was vitally necessary to be decided very quickly. Particularly if he was to be adopted, he was on the cusp of the age when adoption was possible, and his future hung in the balance. In those circumstances, for a notice of appeal not to be filed for more than 6 months is not only unacceptable, it simply means that the case has moved on and that the grounds of appeal become even more difficult to mount than before. We have been taken through the chronology, which appears in the documentation. As I indicated, it took a long time for the mother to instruct fresh solicitors. She did not do so until 30 January 2006, the best part of three months after the judge's order, and even then the solicitors did not move with the speed which was plainly needed and it was not, as I say, until very much later that the appellant's notice was filed. In my judgment, without a really good explanation for the delay this court simply cannot, as a matter of principle, allow in an urgent child case a delay of that nature. It is quite contrary to the justice of the case and it is quite contrary to the interests of the child. So speaking for myself, and although it may sound harsh, I would simply refuse permission to extend the time for filing the appellant's notice. But having said that, I have of course looked very carefully at everything that has been written by Mr Baker and advanced by him to us this afternoon. He has put in a very full and very careful skeleton argument. But at the end of the day, having looked at it and having read it and having listened to him, I come back to where I was when I refused permission on paper. This is a judgment of the highest possible quality. The judge was faced with a very, very difficult decision. How I would have decided the case had I been sitting, I simply do not know. But the question is: Has the judge balanced all the various factors? Has he taken into account every possible consideration? Has he directed himself appropriately to the law? And has he reached a conclusion which is permissible and open to him on the facts? I do not propose to go through the judgment line-by-line, or statement-by-statement. The directions as to the law which the judge gives himself in paragraph 10 are immaculate, and it is very clear that throughout the whole case he had at the forefront of his mind the fact that this little boy did enjoy a very strong and powerful relationship with his mother. The question was not whether someone else would look after the little boy better but, as the judge rightly put it: was it in the interests of the child; was it necessary for the child's welfare that he should be separated from his mother? Was it contrary to his interests to remain in her care? For reasons which he sets out with enormous care, and having examined the facts in the very greatest of detail, having looked carefully at the European Convention and the rights of the parties under the European Convention, and having looked at the expert evidence he had, which included an assessment from an extremely distinguished psychiatrist, Professor Zeitlin, he came to the conclusion in conjunction with all the expert evidence and all the professional evidence that he could not take the risk of returning this little boy in his mother's care. There were two older children, one of whom was living with his father. The relationship between the mother and the father had always been tempestuous, and indeed the father had treated the mother with the most appalling violence, and yet she had continued to live with him. Mr Baker frankly this afternoon, and I give him enormous credit for this, told us a fact which has not emerged from the papers and which we did not know, that the mother is in fact pregnant by the father; so the relationship between the parties continues. The relationship between the father and his son Ian, whom he looks after under a residence order made by the same judge, with supervision to the local authority, is itself, in my view, tenuous. That was a courageous decision for the judge to take, to leave Ian with his father. To do so, he went against the expert evidence and the recommendation of Professor Zeitlin. So the judge showed throughout an independence of spirit and the clarity of mind which led him inevitably to decide the best interests of this little boy, sadly, lay outside his natural family. Of course, time has moved on. There has now been a placement order, whether properly made or not may be a matter for argument, but a placement order has been made and adoptive parents are actively being sought. I do not like deciding cases on technicalities, but I cannot shut my mind to this fact: that if we were to give permission, contrary to everything I think about the case, and were an application for permission lead to a full appeal, and were the appeal to lead to a rehearing, we would be well into the autumn if not next year, and a practical difficulty would arise. If, as must be the case, this child would have to be the subject of an interim care order, how was he to get into the care of his mother? The local authority certainly would not agree. There would have to be some form of residence order in her favour, with an assessment or surrounded by supervision, or what have you. None of which, on the evidence before the judge, would have been in the interests of the child, particularly if there was the risk, which the judge thought there plainly was, that the relationship might not survive, the capacity of the mother might not survive the stresses and strains, particularly as we now know she is pregnant and particularly as we now know, of course, she is going to remain in contact with the child's father in relation to contact if in relation to nothing else. So, therefore, for all the reasons I gave when addressing the matter in writing, it seems to me, contrary to the very careful argument put forward by Mr Baker, the judge has weighed each and every factor carefully in the balance. He has given appropriate weight to the matters which needed weight. He has discarded or given less weight to those which need less weight and above all, he has weighed up the most important principle of all, which was that this little boy's right is to be brought up by his mother, unless his welfare requires otherwise, and regretfully after careful consideration the judge has come to the latter conclusion. I have to say that there was ample material upon which he could come to that conclusion. His conclusion in no way could be said to be perverse. I have gone into all of that because I do understand the position of this mother. My experience, both at the Bar and a judge at first instance, was that frequently one had cases where parents realised only too late that their previous conduct had been fatal to their capacity to care for children, and made every effort to care for a child and to reform, and this appears to be happening here. This mother does appear, in Mr Baker's phrase, "largely to have kicked the drugs habit". The last test we have is that she is on a minimal amount of methadone; we are now told that she has come off even that. So she has been making every effort, and the case is particularly poignant because of that fact. But that fact alas does not wipe out the past and does not exclude the risk, and the judge plainly took the view that he could not take any risk with this little boy's future. For security and stability, and to grow up to fulfil his potential, he required a care order leading to adoption. As I say, that was a conclusion, however finely balanced the case, the judge in my view was plainly entitled to reach. When I combine that with the delay in the institution of this appeal, I come to the inevitable but very sad conclusion that an appeal against this decision, even if we were to extend the time, would have no reasonable prospect of success. It would simply delay the agony for this mother and delay the future placement of this child. In my judgment therefore the judge in my view reached the right conclusion or, at the very lowest, a conclusion which he was entitled to reach, and I would therefore refuse an application for permission. LORD JUSTICE THORPE: I, too, conclude that this application must be refused for the reasons given by my Lord, Lord Justice Wall, in his judgment and also in his written reasons of 16 June. Order: Application refused.

Judgment of the Court of First Instance (Sixth Chamber) of 10 October 2008 – Inter-Ikea v OHIM (Representation of a pallet) (Joined Cases T-387/06 to T-390/06) Community trade mark – Application for registration of figurative Community trade mark representing a pallet – Absolute ground for refusal – Article 7(1)(b) of Regulation (EC) No 40/94 Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 31, 34-45) Re: ACTIONS brought against four decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 September 2006 (R 353/2006‑1, R 354/2006‑1, R 355/2006‑1 and R 356/2006‑1) concerning applications for the registration of four figurative trade marks consisting of graphic representations of a pallet. Information relating to the case Applicant for the Community trade marks: Inter-Ikea Systems BV Community trade marks sought: Figurative marks representing a pallet, for goods and services in Classes 6, 7, 16, 20, 35, 39 and 42 — Application Nos 4073763, 4073731, 4073748 and 4073722 Decision of the examiner: Registration refused Decisions of the Board of Appeal: Appeals dismissed Operative part The Court: 1. Annuls the decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 September 2006 (R 353/2006-1, R 354/2006-1, R 355/2006‑1 and R 356/2006-1) in so far as registration of the marks applied for was refused in respect of goods and services in Classes 6, 7, 16, 20, 35, 39 and 42 of the Nice Agreement concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks of 15 June 1957, as revised and amended to the exclusion of ‘loading pallets of metal’, ‘loading carriers and loading pallets of metal for packaging and transportation purposes’ and ‘metal transport pallets’, in Class 6; ‘goods pallets not of metal’, ‘loading pallets and loading carriers not of metal for packaging and transportation purposes’ and ‘transport pallets not of metal’, in Class 20; and ‘rental of loading pallets’ services, in Class 39; 2. Dismisses the actions as to the remainder; 3. Orders each party to bear its own costs.

FOURTH SECTION CASE OF MERCIECA AND OTHERS v. MALTA (Application no. 21974/07) JUDGMENT STRASBOURG 14 June 2011 FINAL 14/09/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mercieca and Others v. Malta, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,Päivi Hirvelä,Ledi Bianku,Zdravka Kalaydjieva, judges,David Scicluna, ad hoc judge,and Lawrence Early, Section Registrar, Having deliberated in private on 24 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 21974/07) against Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Paul Mercieca, Andrew Manduca, Raphael Aloisio, Steve Cachia, Stephen Paris, Malcolm Booker and Edward Camilleri, Maltese nationals, (“the applicants”), on 22 May 2007. 2. The applicants were represented by Dr Stefan Frendo, Ganado & Associates, and Dr Tonio Azzopardi, lawyers practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr Silvio Camilleri. 3. The applicants alleged that the Court of Appeal’s restrictive interpretation had deprived them of access to court by denying their appeal. 4. On 17 December 2009 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5. Mr V. De Gaetano, the judge elected in respect of Malta, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber accordingly appointed Mr David Scicluna to sit as an ad hoc judge (Rule 29 § 1(b)). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1952, 1954, 1961, 1960, 1964, 1963 and 1945 respectively and live in Malta. They are certified public accountants acting personally and in their capacity as partners of the partnership Deloitte & Touche Certified Public Auditors & Accountants. A. Background of the case 7. On an unspecified date the applicants were sued, personally and in their capacity as partners of the partnership Deloitte & Touche Certified Public Auditors & Accountants, as auditors of PCO Ltd, in a civil action by a company, V. The latter claimed that the applicants’ audit firm had acted negligently and fraudulently in its drawing up of PCO Ltd’s audit report/financial statements, and was therefore liable for the losses sustained by V as a result of its reliance on those documents. 8. During the proceedings the applicants raised a preliminary plea to the effect that reliance by V. on the audit report when taking a particular credit decision, and knowledge on the part of the applicants of such reliance when taking that decision, were lacking. These requirements were fundamental to this type of action. 9. On 1 December 2003 the Civil Court dismissed this plea in a preliminary judgment. 10. On 3 December 2003 the applicants requested special leave to appeal the preliminary judgment under Article 231 (1) of the Code of Organisation and Civil Procedure (“COCP”). On 12 December 2003, the Civil Court in its ordinary jurisdiction granted leave to appeal. 11. On 29 December 2003 the applicants lodged an appeal. 12. On 8 June 2004, having heard the parties’ arguments, the Court of Appeal dismissed the appeal as out of time. It noted that while the legislator had clearly established that the time-limit for lodging an appeal against an interlocutory decree ran from the date of authorisation to appeal, in respect of an appeal against a “judgment” the legislator had made no distinction between a “judgment” and a “partial judgment” (sentenża parżjali). It followed that the twenty-day time-limit which ran from the date of delivery of a judgment according to Article 226 (1) of the COCP applied also to appeals necessitating prior leave to appeal. B. The constitutional redress proceedings 13. On 17 September 2004 the applicants instituted constitutional redress proceedings before the Civil Court in its constitutional jurisdiction, claiming that such an erroneous interpretation by the Court of Appeal deprived them of access to court. 14. On 15 November 2006 the Civil Court upheld the applicants’ claims, finding that a right to appeal could not arise before leave to appeal had been given. Moreover, an appellant did not have to tolerate the delays of a court in giving leave to appeal. The Court of Appeal’s interpretation had therefore deprived the applicants of access to court in violation of Article 6 of the Convention. It declared the Court of Appeal’s judgment null and void. 15. On 2 March 2007 the Constitutional Court, on appeal by the Attorney General, acknowledged that the interpretation given to the law had been erroneous, thereby depriving the applicants of their right to appeal at an early stage. Nevertheless, it did not uphold the first-instance judgment, since a wrong interpretation did not suffice to lead to a violation of the Convention. While reiterating that an appeal could be heard before the Court of Appeal only once, it considered that the applicants had the opportunity to appeal in the civil case after the final judgment. Thus, given that a defect in first-instance proceedings could be remedied on appeal, the right to a fair hearing would similarly not be violated if a remedy which had been inappropriately denied became available at a later stage of the proceedings. II. RELEVANT DOMESTIC LAW 16. Article 231 (1) of the Code of Organisation and Civil Procedure (“COCP”) (Chapter 12 of the Laws of Malta), at the relevant time, read as follows: “Where several issues in an action have been determined by separate judgments, appeal from any such judgments may only be entered after the final judgment and within the prescribed time, to be reckoned from the date of such final judgment; and in such an appeal express mention of the judgment or judgments appealed from shall be made: Provided that an appeal from such separate judgments may be entered before the final judgment only by leave of court to be read out in open court; such request for leave to appeal shall be made either orally immediately after the delivery of such judgment or by application within six days from such judgment.” 17. The Article was amended in 2005, whereby the following phrase was added to the proviso: “and when such leave to appeal from such separate judgments is granted the time for the filing of the appeal in respect thereof shall commence to run from the day on which the said leave is read out in open court.” 18. Article 226 (1) of the COCP reads as follows: “An appeal is entered by means of an application to be filed with the registry of the Court of Appeal within twenty days from the date of the judgment.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19. The applicants complained that the judgment of the Court of Appeal was based on an erroneous interpretation of the law and deprived them of access to court as provided in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 20. The Government contested that argument. A. Admissibility 1. The Government’s objection based on lack of victim status 21. The Government submitted that the applicants could not claim to be victims under the Convention as they had had access to court and were currently parties to the civil proceedings. Moreover, they had two opportunities to appeal. They forfeited one such opportunity by missing the statutory time-limit. The other opportunity would be available to them at the end of the proceedings, after the determination of the claim at first instance. 22. The applicants submitted that the law granted a right of appeal at that stage of the proceedings, which was confirmed by their successful request for leave to appeal. It was the fact that their appeal was eventually dismissed as a consequence of a wrong and restrictive interpretation of procedural rules that rendered them victims of a violation of Article 6. They recalled that justice delayed was justice denied also in such a context. 23. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI, and Jensen v. Denmark (dec.), no. 48470/99, 20 September 2001, ECHR 2001-X). 24. The Court notes that the basis of the alleged violation is the Court of Appeal’s dismissal of the applicants’ appeal on 8 June 2004. It observes that the Constitutional Court, although acknowledging that the interpretation of the Court of Appeal had been erroneous, did not find a violation of the Convention. In such circumstances the Court finds no reason to doubt the applicants’ victim status. 25. In consequence, the Court rejects the Government’s preliminary objection. 2. The Government’s objection based on non-exhaustion of domestic remedies 26. The Government submitted that the applicants could still appeal against the partial judgment of 1 December 2003 after the delivery of the first-instance judgment determining the merits of the case. They had not, therefore, exhausted domestic remedies. Similarly, since the first-instance proceedings were still in progress, the application was premature. 27. The applicants submitted that even assuming that it were possible to appeal the first-instance judgment when delivered, this could not remedy the fact that they had been denied the right to appeal at the preliminary stage. 28. In accordance with Article 35 § 1 of the Convention, the Court may only deal with an issue after all domestic remedies have been exhausted. The purpose of this rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Micallef v. Malta [GC], no. 17056/06, § 55, ECHR 2009‑...). 29. The Court notes that, following the impugned decision, the applicants instituted constitutional redress proceedings before the Civil Court (First Hall) alleging a breach of the right to a fair trial as guaranteed by Article 6 of the Convention in view of the Court of Appeal’s decision allegedly depriving them of access to court. The Civil Court (First Hall) upheld their claims. The Government subsequently appealed and the Constitutional Court reversed the first-instance judgment on the merits. The Court considers that, in raising this plea before the domestic constitutional jurisdictions, which did not reject the claim on procedural grounds but examined the substance of it, the applicants made normal use of the remedies which were accessible to them and which related, in substance, to the facts complained of at the European level (see, Micallef, cited above § 57). 30. It follows, that the Government’s preliminary objection as to exhaustion of domestic remedies must be dismissed. The other considerations mentioned by the Government in their submissions under this heading are more appropriately addressed on the merits. 3. The Government’s objection ratione materiae 31. The Government submitted that Article 6 was not applicable as the applicants were not seeking the determination of a civil right or obligation but trying to avoid such a determination. Moreover, the issues raised in the appeal were formal and procedural in nature. Furthermore, the applicants could not rely on Article 6 because that provision did not guarantee a right of appeal. 32. The applicants submitted that Article 6 was applicable as the proceedings concerned a civil case for damages arising out of the negligence of auditors in the exercise of their profession. They argued that Article 6 safeguards should also apply outside the context of final decisions. 33. The Court reiterates that Article 6 in its civil “limb” applies only to proceedings determining civil rights or obligations. It notes that in the recent Micallef judgment (cited above, §§ 79-80), the Grand Chamber held that the exclusion of interim measures from the ambit of Article 6 was no longer justified by the fact that they do not in principle determine civil rights and obligations. The Grand Chamber considered that in circumstances where many Contracting States faced considerable backlogs in their overburdened justice systems, leading to excessively long proceedings, a judge’s decision on an injunction would often be tantamount to a decision on the merits of the claim for a substantial period of time, even permanently in exceptional cases. It followed that, frequently, interim and main proceedings decided the same “civil rights or obligations” and had the same resulting long-lasting or permanent effects. 34. The Grand Chamber, however, considered that not all interim measures determined such rights and obligations and the applicability of Article 6 would depend on whether certain conditions were fulfilled (ibid § 83). First, the right at stake in both the main and the injunction proceedings should be “civil” within the autonomous meaning of that notion under Article 6 of the Convention. Second, the nature of the interim measure, its object and purpose as well as its effects on the right in question should be scrutinised. Whenever an interim measure could be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is in force, Article 6 was applicable. However, the Court accepted that in exceptional cases - where, for example, the effectiveness of the measure sought depended upon a rapid decision-making process - it might not be possible immediately to comply with all of the requirements of Article 6 (see Micallef, cited above, §§ 84-86). 35. The Court notes that in the present case the applicants complained that they were denied an interlocutory appeal against a preliminary judgment. The latter can be equated to interim or provisional measures and proceedings. Thus, the same criteria are relevant to determine whether Article 6 is applicable. In the present case, the main proceedings dealt with civil liability and therefore the first requirement is satisfied. Had the Civil Court upheld the applicants’ pleas in its preliminary judgment, there would have been no scope for a further determination, since the applicants’ liability would have been excluded at that stage. The interlocutory appeal would, therefore, have determined the same civil rights and obligations at issue in the main proceedings. It follows that the second requirement is also met and Article 6 is in principle applicable to the present case. 36. The Government argued that Article 6 was not applicable to appeal proceedings because the Convention did not guarantee a right of appeal. The Court acknowledges that Article 6 § 1 does not guarantee a right to appeal from a decision of first-instance. Where, however, domestic law provides for a right of appeal, the appeal proceedings will be treated as an extension of the trial process and accordingly will be subject to Article 6 (see Delcourt v. Belgium, 17 January 1970, Series A no. 11, § 25). The Court notes that no other reasons have been established by the Government to limit the scope of the application of Article 6 in any respect in view of the interlocutory nature of the proceedings at issue. 37. It follows that Article 6 is applicable to the proceedings complained of and the Government’s objection must therefore be dismissed. 4. Admissibility 38. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ observations 39. The applicants submitted that the law was interpreted erroneously by the Court of Appeal, and that the judgment of the Constitutional Court acknowledging the latter but not annulling the said judgment deprived them of access to court. Their appeal had been rejected without any examination of the merits, notwithstanding that they had been granted leave to appeal, which had given them a legitimate expectation that their appeal would be heard. They argued that the domestic courts’ legal interpretation of the relevant provision was erroneous, as confirmed by the Constitutional Court, thereby reducing their time for lodging an appeal and denying them access to court at that particular stage of the proceedings. The fact that it was not the first time that the court had interpreted the provision along those lines did not detract from the violation. The applicants made reference to Miragall Escolano and Others v. Spain (nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, ECHR 2000‑I) where the Court held that parties must be able to avail themselves of the right to bring an action or to lodge an appeal from the moment they effectively apprise themselves of the relevant court decisions. In relation to the application of time-limits, the Court found in Escolano that the domestic courts’ particularly strict interpretation of a procedural rule deprived the applicants of the right of access to a court. 40. The applicants argued that once the law provided for an appeal at an early stage of the proceedings which could have concluded the determination of their claims, and the consideration of that appeal was then thwarted, a further appeal at the end of the main proceedings could not compensate for that defect. Furthermore, the fact that proceedings were still pending could not cancel out the violation that had already occurred. Had their appeal not been rejected there was a chance that the proceedings would have ended much sooner. 41. Moreover, the applicants expressed doubt as to whether a future appeal would be examined. They submitted that once an appeal had been decided no further appeal could be lodged on the same issue. 42. The Government submitted that to determine whether there had been a breach of fair trial guarantees the proceedings had to be seen as a whole. However, that was impossible at this stage of the proceedings and it could not be said that the incident complained of was so prominent as to be decisive for the outcome of the proceedings as a whole. They stated that the right of access to court implied the right to commence proceedings and to rebut the claims at issue, but did not imply a right to an appeal after the adoption of a judgment, whether final or partial, at first-instance. 43. Nevertheless, as held by the Constitutional Court, the applicants would still have access to an appeal when the judgment of the first-instance court was delivered. This right was not prejudiced when the issues raised by them had not yet been debated and had not formed part of the subject matter of a determination by the Court of Appeal. According to the law, when a preliminary judgment was declared null and void by the Court of Appeal the party concerned could still appeal against that preliminary judgment together with an appeal against the final judgment. Thus, the only thing the applicants had lost was the opportunity to avail themselves of the available remedies at an earlier stage of the case, an opportunity which did not give rise to a legitimate expectation. 44. The loss of this opportunity was due to the applicants’ negligence as they had missed the statutory deadline, although they still had nine days within which to appeal after the judgment confirming their leave to appeal had been delivered. The Government submitted that there was nothing extraordinary in the way the domestic court had interpreted and applied the legal provision. A judgment along the same lines had already been delivered by the same court and the applicants could have expected the same outcome. They reiterated that requirements such as time-limits for lodging appeals established a balance between the parties to the proceedings and the right to a fair hearing within a reasonable time. They further submitted that the present case could not be compared to Escolano and Beles where the first-instance judgment had already been pronounced. In the present case the applicants could still have their claims heard on the merits in the context of an appeal at a future date. Thus, the consequences of the judgment of 8 June 2004 did not deny the applicants access to an appeal, but only delayed such a right. 1. The Court’s assessment 45. The “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among other authorities, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 33, Reports of Judgments and Decisions 1997‑VIII and Edificaciones March Gallego S.A. v. Spain, 19 February 1998, § 34, Reports 1998‑I). 46. The rules on time-limits for appeals are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty. Those concerned must expect those rules to be applied. However, the rules in question, or the application of them, should not prevent litigants from making use of an available remedy (see Osu v. Italy, no. 36534/97, § 32, 11 July 2002). 47. Thus, while time-limits are in principle legitimate limitations on the right to a court, the manner in which they are applied in a particular case may give rise to a breach of Article 6 § 1 of the Convention. It is not the Court’s task to resolve problems of interpretation of domestic legislation but to verify whether the effects of such interpretation are compatible with the Convention (see Miragall Escolano and Others v. Spain, no. 38366/97, §§ 33-39, ECHR 2000-I, and Maresti v. Croatia, no. 55759/07, §§ 36-38, 25 June 2009). 48. In the present case, the applicants’ time to appeal was reduced from twenty days to nine days. While it is true that the applicants could have lodged their appeal within those nine days, the Constitutional Court specifically acknowledged that the law had been wrongly applied by the Court of Appeal, with the consequence that the applicants’ appeal had been unfairly rejected (see paragraph 15 above). In these circumstances, notwithstanding the Government’s argument, the Court finds no reason to second guess this decision. Thus, in the present case, the applicable rules were construed in such a way as to prevent the applicants’ appeal being examined on the merits, with the consequence that their right under domestic law of access to the Court of Appeal at that point in time was impaired. 49. However, the Constitutional Court considered that there had not been a violation of Article 6 of the Convention since the applicants could avail themselves of an appeal at a later stage of the proceedings. The Court points out that in certain cases the Convention organs have found that the possibility exists that a higher or the highest tribunal may, in certain circumstances, make reparation for an initial violation of one of the Convention provisions (see, for example, De Cubber v. Belgium 26 October 1984, Series A no. 86, § 33, and De Haan v. the Netherlands, 26 August 1997, § 54, Reports of 1997‑IV, in respect of impartiality). However, in the recent Micallef judgment the Grand Chamber was not convinced that a defect in civil interim proceedings could necessarily be remedied at a later stage, namely in proceedings on the merits governed by Article 6, since any prejudice suffered in the meantime might by then have become irreversible (§ 80). 50. In the present case, it has not been disputed that the proceedings in issue would have ended at that stage had the applicants’ appeal been heard on the merits and upheld. That eventuality would have avoided the applicants the expense and anxiety related to the continuation of burdensome court proceedings. In consequence, the Court is of the view that an appeal at the end of proceedings on the merits, even if this could be guaranteed under domestic law and practice (a matter which remains hypothetical for the reasons argued by the parties), would not have sufficed to annul the consequences suffered by the applicants as a result of the wrongful dismissal of their appeal at an earlier stage. 51. It follows, that in the present circumstances, the domestic courts’ restrictive interpretation of the relevant procedural rules denied the applicants the right to lodge an appeal permitted by law. There has therefore been a violation of Article 6 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 53. The applicants claimed 1,150 euros (EUR), supported by a taxed bill of costs, representing the sum incurred by the applicants in connection with the rejected appeal, in respect of pecuniary damage. 54. The Government submitted that these claims were not a direct consequence of the violation complained of. 55. The Court does not discern any causal link between the violation found and the pecuniary damage alleged, as it cannot speculate on what the outcome would have been had the Court of Appeal declared the applicants’ appeal admissible and proceeded to hear it. Accordingly, the Court rejects this claim. B. Costs and expenses 56. The applicants also claimed EUR 6,169.54, vouched by an attached bill of costs, for the costs and expenses incurred before the domestic courts and EUR 14,320 (EUR 7,190 + EUR 7,130) in lawyers’ fees incurred before the Court. 57. The Government submitted that the costs of the domestic proceedings claimed by the applicants included the costs of the Attorney General (EUR 2,261) which had not been claimed by the latter and would not be claimed by the latter in the event that the Court were to find a violation in the present case. As to the claims for proceedings before this Court, the Government submitted that they were grossly exaggerated and that there was no justification for doubling the fees on account of the fact that two lawyers were consulted about the proceedings. In their view, it was appropriate to award EUR 2,000. 58. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court considers the amounts claimed for legal fees to be excessive. Regard being had to the documents in its possession and the above criteria, notably the absence of details as to the number of hours worked and the rate charged per hour, and noting that the costs of the Attorney General in the domestic proceedings will not be claimed and are therefore to be deducted from this award, the Court considers it reasonable to award the sum of EUR 6,000 covering costs under all heads. C. Default interest 59. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six-thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 14 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas Bratza Registrar President

LORD JUSTICE LAWS: On 28th March 2012, before Dobbs J at the Leicester Crown Court, this appellant was convicted of murder and sentenced to imprisonment for life with a specified minimum term of 20 years less 289 days spent in custody on remand. His co-defendant, Mohammed Hirsi, was also convicted of murder and sentenced to life imprisonment with a minimum term of 22 years less 289 days. The appellant now appeals against his conviction by leave of the full court (Davis LJ, Andrew Smith and Jeremy Baker JJ) granted on 16th April 2013. Leave was granted on grounds 1 to 3, which are all concerned with aspects of the fact that the case against the appellant was one of joint enterprise. The court adjourned the application for leave on ground 4. That concerned an issue relating to disclosure. It was originally the purpose of Mrs Oldham QC for the appellant to pursue it at this hearing, but she has told us that it is abandoned and it is not therefore necessary to say anything more about it. The court on 16th April also stood over the applicant's application for leave to appeal against the length of the minimum prison term. This is the court's judgment on the grounds relating to conviction. At 2.23 am on 10th June 2011, the appellant and his co-defendant Hirsi went, not for the first time that night, to the home of a woman called Naomi Reid on the Rowlatts Hill estate in Leicester. They knew that Miss Reid and a man called Paul Fyfe, with whom Reid was in a sexual relationship, were at the premises. Hirsi entered the house unasked. The appellant remained near the front door. Hirsi confronted Fyfe. He took a knife from the kitchen block and stabbed Fyfe in the chest. Fyfe was pronounced dead at 2.15 am. The appellant had remained outside the front door. The appellant was a 22-year-old man who used and dealt in drugs. There was evidence of earlier bad feeling between him and Fyfe. Hirsi, aged 25, was a friend of the appellant. Fyfe, who worked as a paralegal, had on previous occasions represented both him and the appellant. He had also represented Reid's partner and the father of her children, who was known as Sunny, in the criminal proceedings in 2010, which had seen Sunny sentenced to a long prison term for drugs offences. Reid's relationship with Fyfe was concealed from Sunny and from her children. The appellant and Hirsi spent over eight hours together on the evening of 9th/10th June 2011. The longest period in which they were apart appears to be from about 1.15 am to 2.02 am, or possibly just after. They got increasingly drunk and intoxicated by cocaine and their behaviour became more aggressive. There was evidence, admitted without objection, of a number of instances showing that that is what happened. At length, at 11.42 pm they were dropped off at the Rowlatts Hill estate by a man called Harper. They woke up someone called Rana. He told them to "fuck off". Hirsi threatened to beat him up. At 11.56 they headed for Reid's flat. There had been text messages between the appellant and Reid about drugs. Reid let the appellant into the premises on his own. Once inside the appellant texted Hirsi, saying "Come back in two minutes". Hirsi duly turned up. Reid said the appellant seemed drunk. He told her about the encounter with the man Rana and was angry and aggressive as he did so. The appellant picked up a large knife from the kitchen block. He said that they should go and "shank" (that is stab) Rana and waved the knife about. Hirsi tried to calm him down and he returned the knife to the block. Then the appellant shared some cocaine with Reid. Reid knew that Fyfe would not like them being present. She said he would be back soon. The appellant said, what could Fyfe do about it. The appellant and Hirsi began to encourage each other, saying they could take Fyfe out. They talked about having a session and staying all night. Hirsi in particular spoke about not giving a shit and boasting about how he could be a rapist, robber, knock someone out or even kill someone. At 1 am the man Harper sent the appellant another text about more cocaine and they agreed to meet. The appellant and Hirsi left but they said they might come back. Reid told them not to bother because Fyfe would be coming and she was going to bed. Hirsi returned to Reid's home after 1 am, still drinking, and said the appellant would be returning shortly. Reid tried to get him to go before Fyfe arrived but he would not. Fyfe got there at 1.51 am. Hirsi started to taunt him, saying he had spent the evening with his, Fyfe's, girlfriend. Fyfe told him to go. At 2.02 am Reid phoned the appellant, telling him to take Hirsi away. The appellant, who had been taking cocaine, collected Hirsi. They left Reid's address at about 2.04. At 2.21 Reid sent the appellant a text. It read: "Safe Ameen. Don't bring that guy to my house again, otherwise I'll tell Sunny you're bringing guys round my house. See you tomorrow yeah x." But the two of them returned to her place at 2.23. It is a fair inference that the appellant had shown the text to Hirsi, though that was denied. Hirsi went in to the house. The appellant stayed near the front door. He was shouting about Sunny, Reid's partner. Fyfe came downstairs in his boxer shorts. There was an angry exchange between him and Hirsi. Fyfe went back upstairs to put on his jeans. Hirsi went to the kitchen. Then Reid saw that the knife block was empty. Reid was telling Hirsi and the appellant to leave. Fyfe was now back downstairs. This is how the judge summarised Reid's evidence as to what happened next: "'Ameen [that is the appellant] was outside the house smashing the car. I can't remember what they were saying but they were both irate and angry and shouting things. Ameen was egging Nelly [that is Hirsi] on to do something to Paul [that is Fyfe]. Ameen had a brandy bottle in his hand and at one stage he came right to the front door, ready to hit the bottle over Paul's head, but he didn't. He just threatened him with it. I saw him with his right hand raised. He was standing on the ledge of the front door and he was saying that he wanted to smash it over Paul's head as he lent forward past Nelly. He wouldn't have been able to reach Paul from there. Paul was trying to tell Nelly and Ameen to leave and Nelly said he wasn't going anywhere, as did Ameen. I was still in between them as it seemed like they were going to end up fighting. I told Nelly to leave the house as it wasn't worth it to get into trouble, and then I said I was going to call the police and then he pulled out the knife. I didn't manage to phone the police. He pulled out the knife from somewhere around the back, pointed it up against my chest whilst holding me by the throat. I think he had the knife in his right hand. I backed off and went into the kitchen to lock myself in there, and for a brief second the kitchen door was shut. As I opened the kitchen door I saw the back of Paul near the front door. He was facing the front door which was open. Nelly was in front of him, an arm's length away from Paul. Paul was standing in the passage where the washing machine was'. You have got photographs, members of the jury, of the washing machine. 'Nelly was inside the front door. Ameen was outside near the car. There was stuff being said but I can't remember exactly what was said, but Ameen was egging Nelly on to do something to Paul. Paul was trying to calm the situation and get them out of the house and asked Nelly, "What are you going to do? You going to stab me with it?" and Nelly stabbed him and I heard Paul say "You stabbed me". Paul was in front of me with his back to me and I saw Hirsi make a stabbing motion with the knife towards Paul, towards his chest. I didn't see the blade enter him'." Then later this: "Paul went upstairs and put his jeans on. She said that it happened very quickly and that it took longer to describe the events than the events themselves. Ameen was still outside and the door was not fully open because of the washing machine. When Nelly went into the kitchen he did not say anything about a knife and he came in and out very quickly, and Ameen was not saying anything at that time. Paul was at the bottom of the stairs. She was in the middle with Nelly facing her and from outside he would have his back to anyone outside. Ameen was outside the house smashing the car at that stage. Ameen came to the door, put a foot on the ledge, egging Nelly on. She denied that he was raising the bottle and saying, 'Come on' to Hirsi, as if 'Come on, leave the house'. She said: 'I couldn't hear what Ameen was saying when he leant forward. It was threatening, as if he was being aggressive with it, but he was not within reach of Paul and he didn't remain there. She said it was a matter of seconds before Nelly drew the knife out and stabbed Paul." The learned judge rejected a submission advanced on behalf of the appellant at the close of the prosecution case that there was no case to go to the jury. The court granting leave on 16th April 2013 thought that the judge had given no reasons for that ruling. In fact, we now have a transcript showing she gave a fully reasoned decision. Neither defendant gave evidence at the trial. There were originally four grounds against conviction. Only three remain live. The fourth has been abandoned, as we have indicated. The three live grounds are these. As set out in the grounds: "(i) The learned judge wrongly rejected a submission of no case to answer as there was no evidence upon which a properly directed jury could infer encouragement of joint enterprise murder. (ii) The learned Judge directed the jury that they could only convict this Appellant as a secondary party if he foresaw that a knife 'might' be used. This was in accordance with authority in relation to group attacks but, in this case, such a direction was insufficiently precise and invited assumption/speculation. (iii) In a case such as this where 'encouragement' to joint enterprise is concerned, a jury should be directed not to convict unless they are sure that the defendant knew there was a weapon or use of a fatal weapon was a 'real probability'. The language of risk and possibility disregards the standard of proof. The direction should have been 'realised Hirsi would' use a weapon not 'realised Hirsi might'." It is convenient first to deal briefly with the complaint advanced both in the submission of no case and in counsel's advice and grounds which is that the Crown shifted its ground. Whereas it is submitted the case was opened on the basis that the appellant had actively encouraged Hirsi to commit the fatal assault, when it came to the half-time submission the case was being put on the basis of the appellant's continued association with Hirsi that night, knowing there was a real risk that he might act as in fact he did. There is, with respect to Mrs Oldham, nothing in this. Even if there were a shift of ground or at least of emphasis, it could not avail the appellant in the absence of demonstrated unfairness of the trial process, and there is none. But there was in substance no shift of ground. The Crown's written argument in response to the no case submission included this: "The prosecution opening as a whole made it clear that the Crown case against Jogee is put on the basis of continued association and encouragement. Both are relied on as part of the factual matrix upon which joint enterprise in this case is founded." We have seen nothing to refute this as a proposition. The judge dealing with the no case submission effectively reached the same conclusion: see the transcript of the ruling at page 15A. We turn to the substantive points on grounds 1 to 3. There is first a submission, no doubt embraced within the first ground at paragraph 19 of the written skeleton argument for the appellant, that the evidence of Reid, the sole witness to the killing, was so undermined in cross-examination that no reasonable jury could have relied on it, and it for that reason the case should have been withdrawn at the end of the Crown case. This is part and parcel though not the whole of ground 1. As a freestanding point, however, it goes nowhere. Inconsistencies in Reid's evidence were addressed by the judge carefully and properly at 47A and following of the summing-up. It was manifestly for the jury to decide whether they believed her or not. The appellant's real case on grounds 1 to 3, and the argument emphasised by Mrs Oldham QC this morning, is that the appellant could only be convicted of murder if it were shown that he knew that Hirsi was in possession of a weapon -- on the facts the knife from the kitchen -- and appreciated that Hirsi might use it to inflict grievous bodily harm or worse. Here, it is said there was no evidence to demonstrate such knowledge on the part of the appellant and the judge directed the jury in a manner inconsistent with the proposition that proof of Hirsi's possession of the knife was required. Rejecting the no case submission, the judge answered a question she posed herself: was there sufficient evidence on which a reasonable jury properly directed could convict? This is how she answered it: "In my judgment, there is. If there was no evidence of the former incident involving the knife in the kitchen, then the prosecution would have a problem, but given the knowledge of both Defendants of the existence and availability of the knife in the kitchen, set against the other background evidence relied on by the Crown, it is open to the jury to find that Jogee realised that Hirsi might use a knife, intending to cause at least serious bodily harm and participated by encouragement and that Hirsi killed with the requisite intent. Whether they do so is another matter, and the points raised by the defence are matters to which the jury will need to pay close attention." Summing-up to the jury, the learned judge said this, first at page 7C in the summing-up transcript: "In this case the Prosecution allege that both defendants are responsible for the death of Paul Fyfe, Hirsi by stabbing him and Jogee by encouraging Hirsi." Then at page 8E: "What is the position in law of the other person, in this case Jogee, where a potentially lethal weapon is used by the other? Let me break that down for you. If A during the course of a fight pulls out a knife and uses it to kill and when he did so he intended to kill or cause grievous bodily harm A will be guilty of murder if the victim dies. If another, B, participates by encouragement he will be guilty of murder if he (a) knew A had the knife and (b) shared A's intention to kill or do really serious bodily harm, and A, with the requisite intent, kills X. Or if, although he did not share A's intention to kill or do serious bodily harm, B realised that A might use the knife with the intention to kill or cause serious bodily harm and he nevertheless took part by encouraging A and A, with the requisite intent, kills X. So here a degree of foresight is required. The Prosecution say that Jogee knew that Hirsi could get hold of a knife at the house and that he realised that Hirsi might use the knife with intent to kill or cause Paul Fyfe serious bodily harm, and nevertheless, with that knowledge, participated in the attack on Paul Fyfe by encouraging Hirsi. That encouragement took the form of verbal encouragement to harm Paul Fyfe; threatening serious violence towards Paul Fyfe himself when threatening to smash a brandy bottle over Paul Fyfe's head; deliberately damaging Paul Fyfe's car in close proximity to where Hirsi was attacking Paul Fyfe, and being close at hand to lend support." Then a little later there is this further direction, at page 11E and following: "So far as Mr Jogee is concerned, you can only convict him of murder if you have already found Hirsi guilty of murder. If you find Hirsi guilty of murder ask yourselves Question 1: Are you sure that Jogee participated in the attack on Paul Fyfe by encouraging Hirsi by the means relied on by the Prosecution which I have already set out? If you are not sure that Jogee participated in the attack on Paul Fyfe then that is the end of the matter and he is not guilty. If the answer is 'yes', move on to Question 2: Are you sure that when he participated he realised that Hirsi might use the kitchen knife to stab Paul Fyfe with intent to cause Paul Fyfe serious bodily harm. If, for instance, you think it may be the case that by taking and using the knife Hirsi was acting outside the scope of the joint enterprise, in other words that he had gone on a frolic of his own, and it was not something that Jogee could have contemplated, then your verdict will be not guilty. However, if your answer is 'yes', then Jogee would be guilty of murder." The appellant by Mrs Oldham submits that the approach adopted by the judge is appropriate for cases of joint enterprise by participation, but not for cases of joint enterprise by encouragement. In our judgment, the law would take a step backwards if it endorsed such a distinction. In Rahman [2009] 1 AC 129, Lord Brown stated: "If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture unless (i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying and (ii) for that reason A's act is to be regarded as fundamentally different from anything foreseen by B." There is no principled basis on which this reasoning should be applied only to cases of participation and not to cases of encouragement. Indeed, the distinction between the two is, to say the least, permeable. Encouragement is a form of participation; that is why it is enough to convict a secondary party. The actus reus of the secondary party's crime is lending support to the primary actor, whether by active participation or encouragement or both. The mental element, the mens rea, of the secondary party's crime is an appreciation that the primary actor might inflict grievous bodily harm and a willingness to lend his support notwithstanding. This, in essence, was the approach followed by the learned judge both in rejecting the no case submission and in directing the jury, and it is consistent with earlier authority, including not only Rahman but also this court's recent decision in Carpenter [2012] 1 Cr App R 11. There is nothing in the circumstances of Mrs Oldham's rhetorical question upon the judge's comment at page C7-D which we have read: what is it, she asks, that Jogee was supposed to be encouraging? The summing-up clearly directs the jury as to the circumstances obtaining at the critical moments. There is, in our judgment, nothing in this appeal against conviction which will be dismissed. (Submissions on appeal against sentence followed) - - - - - LORD JUSTICE LAWS: We turn now to the application for leave to appeal against sentence which was adjourned, as we have said, by the full court in April. We do not repeat the facts of the case which are given in our judgment on the conviction appeal. The appellant is 22. He has previous convictions for common assault in 2002 and 2003, possession of an offensive weapon in 2003, possession of a prohibited weapon in 2003, 2004 and 2006, battery in 2009 and aggravated vehicle taking in 2010. There are also some drugs convictions. There is no previous conviction however, as Mrs Oldham has sought to emphasise, for an offence that involved this degree of violence. The learned single judge refusing leave to appeal against sentence said this: "As to sentence, a 20 year minimum term was not excessive for your participation in a stabbing with a large knife applied with severe force in the early hours of the morning at Naomi's house (which you had entered, uninvited, about an hour before the killing and then returned to again) in front of the victim's partner, carried out with a view to sorting the victim out over a text message you had received, and when you: I. were under the influence of alcohol; II. knew that Hirsi was drunk and dangerous; III. encouraged him to attack the victim when you realised he was going for a knife and, later, when he had it; and IV. had a substantial criminal record, including for drugs and violence. The judge made appropriate allowance for the fact that it was not you who wielded the knife." We have considered this very carefully. The correct starting point was 15 years. It falls to be reduced because, as the judge found, there was no intention to kill. However, it falls to be increased again having to the aggravating features in the case. They are essentially the fact it was committed at the victim's home, or his girlfriend's home, the use of the knife and its later disposal and the antecedent history which we have recited. There was, on the other hand, no planning, and what has moved us is that there was here no very great distinction between the minimum terms passed in relation to the primary offender Hirsi and this applicant. In all those circumstances we consider that the appropriate minimum term here was certainly significantly above the starting point of 15. It should have been 18 years, rather than 20. We will grant leave to appeal and allow the appeal to the extent that we substitute that minimum term for the 20 years imposed by the learned trial judge.

NANVATI, J. The companyrectness of the judgment of the Delhi High Court in Civil Revision Application No. 379 of 1997 is questioned in this appeal. The High Court dismissed the revision application filed by the landlord against the order passed by the Rent Controller granting leave to the respondents to defend the eviction petition. The appellant is the owner of the premises which are number in possession of the respondents. As he was to retire from Central Government service on 30.11.96 he filed an eviction petition against both the respondents, in the Court of the Rent Controller, Delhi under Section 14 1 e and 14C of the Delhi Rent Control Act, 1958 on the ground that he requires the premises bona fide for his residence. In his petition he has stated that Respondent No. 1, Jai Devi is his tenant but as Respondent No.2, her husband, has been claiming that he and number his wife is the tenant of the remises the eviction petition is filed against both of them to avoid any technical objection. Both the respondents appeared before the Rent Controller and filed separate applications for leave to defend. They have raised a dispute that Respondent No.2 is the tenant and number Respondent No.1. They have also raised a dispute that the premises are a part of the joint family property, and, therefore, the application filed by the petitioner alone is number maintainable and as the petitioner has been residing in the remaining part of the premises with his brothers his claim that he requires the premises for his residence is number bona fide. The Rent Controller believed that there was a partition amongst the brothers and the appellant is since then the owner of the premises. Thus, he held that, the first companydition of Section 14C is satisfied. As it was number disputed that the petitioner was a Central Government employee and that he was about to retire when he filed the petition, the Rent Controller held that the second ingredient of Section 14C is also satisfied. But taking the view that there is a substantial dispute between the appellant and the respondents as regards the relationship of landlord and tenant, the third ingredient of Section 14C, the respondents are entitled to leave, number only under Section 14 1 e but also under Section 14C of the Act. The Rent Controller, therefore, granted leave to both the respondents to defend the eviction petition. Aggrieved by that order the appellant filed a revision petition of the High Court under Section 25B of the Act. The High Court held that if the ground pleaded by the respondents is accepted than that would entail dismissal of petition under Section 14C for the reason that if the Respondent No.2, is proved to be the tenant of the premises then the petition against respondent No.1 would fail and it would also fail against Respondent No.2, as in the petition only Respondent No.1 is stated to be the tenant. Taking this view the High Court dismissed the revision application. Mr. Ranjit Kumar, learned companynsel for the appellant, companytended that as the appellant has made both the respondents parties to the eviction petition and has stated therein that according to him Respondent No.1 is the tenant and that Respondent No.2 claims to be the tenant the eviction petition cannot fail against any one of them and, therefore, the High Court has companymitted an error of law in taking a companytrary view. He further submitted that the High Court ought number to have granted leave to defend on such a technical and frivolous ground. On the other hand Mr. Salman Khurshid, learned companynsel appearing for the respondents, supported the judgment of the High Court and also the order passed by the Rent Controller on the ground that the companytroversy between the parties as to who is the tenant has been rightly regarded a substantial and a good ground for granting leave. In order to decide whether the view taken is companyrect or number we will number refer to the relevant provisions of the Act. Section 14 1 grants protection to the tenants against eviction by providing that numberorder or decree for the recovery of possession of any premises shall be made by any companyrt or Rent Controller in favour of the landlord against the tenant. The proviso to that sub-section companytains certain grounds on which an order for the recovery of possession can be passed in favour of the landlord. One such ground, companytained in clause g , is bona fide requirement of the landlord of the premises let out for residential purpose for occupation as residence for himself or for any member of his family dependent on him. Earlier that was the only provision in the Act entitling the landlord to recover possession of residential premises from the tenant on the ground of bona fide requirement. The Act was amended, with effect from December 1, 1975, to provide for an additional ground on which the landlord can recover possession. Section 14A was added to give a right to the landlord who is in occupation of any residential premises allotted to him by the Central Government or any local authority and is required to vacate the same to recover immediate possession of the premises let out by him. Chapter IIIA companytaining Section 25A, 25B and 25C was also inserted in the Act to provide for a summary trial of applications filed on the ground of bona fide requirement under Section 14 1 e or under Section 14A of the Act. The Act was again amended in 1988 for companyferring additional benefits on certain classes of landlords, by inserting therein Sections 14B to 14D. Section 14C with which we are companycerned in this case reads as under 14C. Right to recover immediate possession of premises to accrue to Central Government and Delhi Administration employees. - Where the landlord is a retired employee of the Central Government or of the Delhi Administration, and the premises let out by him are required for his own residence, such employee may, within one year from the date of his retirement or within one year from the date of his retirement or within a period of one year from the date of companymencement of the Delhi Rent Control Amendment Act, 1988, whichever is later, apply to the Controller for recovering the immediate possession of such premises. Where the landlord is an employee of the Central Government or of the Delhi Administration and has a period of less than one year preceding the date of his retirement and t he premises let out by him are required by him for his own residence after his retirement, he may, at any time within a period of one year before the date of his retirement apply to the Controller for recovering the immediate possession of such premises. Where the landlord referred to in sub-section 1 or sub-section 2 has let out more than one premises, it shall be open to him to make an application under that sub-section in respect of only one of the premises chosen by him. Though Section 25B 1 was amended along with introduction of Section 14B, 14C and 14D to make the summary procedure applicable to applications made under those sections numbercorresponding change was made in sub-section 2 to 5 of Section 15B. Sub-section 5 of Section 25B which provides for granting of leave to the tenant to companytest the eviction petition companytinues to read as under 25B 5 The Controller shall give to the tenant leave to companytest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause g of the proviso to subsection 1 of Section 14, or under Section 14A. The nature of the rights companyferred by Sections 14B, 14C and 14D was companysidered by this Court in Surjit Singh Kalra vs. Union of India 1991 2 SCC 87. After companyparing the provisions in Sections 14B to 14D with the provisions companytained in Section 14 1 e this Court held that the provisions in Section 14B to 14D are markedly different from Section 14 1 e . It further held that the classified landlords i.e. landlords referred to under Section 14B to 14D, have been companyferred with certain rights which are different from the independent of the right under Section 14 1 e . This Court also rejected the companytention that the tenants right to companytest the application for eviction on the grounds specified in Section 14 1 e cannot be denied even as against the classified landlords falling under Section 14B to 14D by holding that the acceptance of such a submission would practically obliterate the purpose and object of classification of landlords under Section 14B to 14D who are carved out from the general category of landlords and render the whole exercise of creating special classes of landlords with specified rights to recover immediate possession of the premises let out by them nugatory. As regards the defence of the tenant for obtaining leave under sub-section 5 of Section 25B this Court has held as under Under sub-section 5 , the tenant companyld companytest the application by obtaining leave with reference to the particular claim in the application of the landlord depending upon whether it is under Section 14-A, 14-B, 14-C or 14-D or under Section 14 1 e . The tenant cannot be allowed to take up defence under Section 14 1 e as against an application under Section 14-B. There cannot be any defence unconnected with or unrelated to the claim or right of the plaintiff or applicant. That would be against our jurisprudence. It is unlikely that the legislature intended the result for which the companynsel for the tenant companytended. It will be a mechanical interpretation of the enactment defeating its purpose. Such an interpretation has never found favour with the companyrts which have always adopted a purposive approach to the interpretation of statues. Section 14-B and other allied provisions ought to receive a purposeful companystruction and subsection 5 of the object and purpose of Section 14-B to 14-D. It is the duty of the companyrt to give effect to the intention of the legislature as expressed in Sections 14-B to Section 14-D. The tenant of companyrse is entitled to raise all relevant companytentions as against the claim of the classified landlords. The fact that there is numberreference to the word bona fide requirement in Section 1 4-B to 14- D does number absolve the landlord from proving that his requirement is bona fide or the tenant from showing that it is number bona fide. In fact every claim for eviction against a tenant must be a bona fide one. There is also enough indication in support of this companystruction from the title of Section 25-B which states special procedure for the disposal of applications for eviction on the ground of bona fide requirement. Under Section 14C right has been companyferred upon two categories of landlords to recover immediate possession of premises let out by them. The first category companysists of landlords who are retired employees of the Central Government or of Delhi Administration and the second category companysists of the landlords who are employees of the Central Government of the Delhi Administration and who have a period of less than one year preceding the date of their retirement. If such landlords apply within the specified time they become entitled to recover immediate possession of t he premises let out by them if the said premises are required by them for their own residence. This being the nature of the right or claim of the landlord the scope of defence that can be raised by the tenant becomes restricted.

THIRD SECTION CASE OF VIDIC v. SLOVENIA (Application no. 54836/00) JUDGMENT STRASBOURG 3 August 2006 FINAL 03/11/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vidic v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrC. Bîrsan, President,MrB.M. Zupančič,MrV. Zagrebelsky,MrsA. Gyulumyan,MrE. Myjer,MrDavid Thór Björgvinsson,MrsI. Ziemele, judges,and Mr V. Berger, Section Registrar Having deliberated in private on 11 July 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 54836/00) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Lojze Vidic (“the applicant”), on 3 November 1999. 2. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General. 3. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which he was a party was excessive. 4. On 6 March 2003 the Court decided to communicate the complaints concerning the length of the proceedings to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS 1. The first set of proceedings – concerning the payment of damages 5. On 20 July 1989 A.D., I.D. and J.D. allegedly cut down the applicant’s hedge. 6. On 20 September 1989 the applicant instituted civil proceedings in the Ljubljana Basic Court (Temeljno sodišče v Ljubljani) against A.D., I.D. and J.D. seeking compensation for damage resulting from the above mentioned incident. On 3 April 1991 the first-instance judgment of 6 June 1990 was quashed on appeal and remitted for re-examination in respect of two of the defendants. However, with respect to one of the defendants, the first-instance judgement was upheld and became final. On 28 June 1994 the Convention entered into force with respect to Slovenia. According to the Government, the first-instance court twice requested the applicant to correct his claim, namely on 26 June 1992 and on 26 August 1999. The applicant corrected his claim on 3 July 1992 and, after a further request, on 6 October 1999. On 3 August 1999 the applicant lodged a request for supervision due to the delays in the proceedings. In January 2000 and July 2000 the applicant was twice requested to submit enough copies of the corrected claim to enable the court to serve them on the defendants, which he apparently did by September 2000. Following the request for the payment of expert fees of 28 November 2001, the applicant, on 6 December 2001, withdrew the proposal for the appointment of a horticultural expert. Of the three hearings held on 28 March 2001, 22 June 2001 and 4 April 2003 none was adjourned at the request of the applicant. Hearings scheduled for 20 December 2000, 19 September 2001, 6 February 2002 and 19 April 2002 were adjourned because the summons had not been successfully served on the defendants. Following the absence of the applicant at the hearing held on 7 June 2002 the (renamed) Ljubljana Local Court (Okrajno sodišče v Ljubljani) suspended the proceedings (mirovanje postopka) and resumed them again on 5 February 2003. At the last hearing the court delivered a judgment, rejecting the applicant’s claim. It was served on the applicant on 2 July 2003. 7. On 18 July 2003 the applicant appealed to the Ljubljana Higher Court (Višje sodišče v Ljubljani). The proceedings are still pending. 2. The second set of the proceedings – concerning the removal of a barrier 8. In 1989 the applicant was granted a right to make use of a certain plot of land. 9. On 14 January 1992 the applicant instituted civil proceedings in the Ljubljana Basic Court against A.D. and S. D. seeking a removal of the barrier which they had allegedly placed on the before mentioned land to prevent the applicant from using it. According to the Government, none of at least eight hearings scheduled between 2 June 1992 and 14 July 1997 were held since the court did not succeed in serving the writ of a claim and summons on A.D. and/or S. D. In the meanwhile, on 28 June 1994, the Convention entered into force with respect to Slovenia. According to the Government, after the court had tried twenty times to serve the writ of claim, the latter was finally served on A.D. on 14 May 1999. Between 25 September 1995 and 22 April 1999 the applicant five times urged the court to speed up the proceedings. He also made a complaint concerning the length of the proceedings to the Slovenian Ombudsman for Human Rights (Varuh človekovih pravic). Of the three hearings scheduled between 8 September 1999 and 31 May 2000 none was adjourned on the request of the applicant. On 13 February 2000 the applicant requested a temporary injunction. The court decided on that request on 11 July 2000. The applicant did not attend the hearing called for 11 September 2000 and as a result, the (renamed) Ljubljana Local Court suspended the proceedings (mirovanje postopka). On 22 September 2000 the applicant appealed against that decision and requested the court to reinstate his case (vrnitev v prejšnje stanje). On 17 November 2000 the court dismissed the applicant’s request and on 21 March 2001 the Ljubljana Higher Court approved the decision of 11 September 2000. On 1 June 2001 the Ljubljana Local Court decided to terminate the proceedings on the basis of assumption that the applicant had withdrawn his claim. 10. The applicant appealed to the Ljubljana Higher Court. On 9 January 2002 the court dismissed the applicant’s appeal finding that the applicant’s request and the appeal of 22 September 2000 could not have been considered as a request for a continuation of the proceedings. The Ljubljana Higher Court’s decision was served on the applicant on 25 January 2002. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 11. The applicant complained about the excessive length of both sets of proceedings. He relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 12. The Government pleaded non-exhaustion of domestic remedies. 13. The applicant contested that argument, claiming that the remedies available were not effective. 14. The Court notes that the present application is similar to the cases of Belinger and Lukenda (Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001, and Lukenda v. Slovenia, no. 23032/02, 6 October 2005). In those cases the Court dismissed the Government’s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant’s disposal were ineffective. The Court recalls its findings in the Lukenda judgment that the violation of the right to a trial within a reasonable time is a systemic problem resulting from inadequate legislation and inefficiency in the administration of justice. 15. As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law. 16. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 17. The period to be taken into consideration began on 28 June 1994, the day when the Convention entered into force with respect to Slovenia. However, in order to assess the reasonableness of the length of time in question, the Court will have regard to the stage reached in the proceedings on 28 June 1994 (see, among other authorities, Humen v. Poland [GC], no. 26614/95, § 59, 15 October 1999). As far as the first set of the proceedings is concerned, the relevant period has not yet ended and has therefore lasted about twelve years for two levels of jurisdiction. As to the second set of the proceedings, the relevant period ended on 25 January 2002, when the Ljubljana Higher Court’s decision was served on the applicant, and has thus lasted nearly seven years and seven months for two levels of jurisdiction. 18. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 19. The Government invoked, inter alia, the complexity of the facts and the legal issues. They also cited the conduct of the applicant, who had failed to obey some of the court’s orders and had not done enough in order to contribute to the faster service of the claim and summons in the second set of the proceedings; in particular he was not prepared, initially, to pay for a service through a special agency. 20. The Court firstly notes that neither sets of the proceedings involved complex issues. 21. As regards the conduct of the judicial authorities, the Court notes that in the first set of proceedings there were substantial delays. The proceedings after the case had been remitted by the second-instance court lasted more than twelve years on the first instance, of which nine years are within the scope of the Court’s consideration. This is an excessively long period for the case as the instant one. In that respect, it is to be noted that the first-instance court after the applicant had insufficiently corrected his claim on 3 July 1992, made a new request only on 26 August 1999, which is after more than seven years of total inactivity. 22. The Court further notes that the excessive length of the second set of proceedings was mostly due to the unsuccessful service of the writ of claim and summons on the defendants, which delayed the proceedings for more than seven years. Contrary to the Government, it does not consider that this delay could be attributed to the applicant (see Tumminelli v. Italy, judgment of 27 February 1992, Series A no. 231‑H, § 17). It takes notice of the Government’s explanation that the legal provisions governing the service of judicial writings were in 1999 amended in order to correct the deficiencies that led in the present case to the considerable delay. That being so, it recalls that Article 6 § 1 imposes on the Contracting States the duty to organise their legal systems in such a way that their courts can meet each of its requirements (see, inter alia, Vocaturo v. Italy, judgment of 24 May 1991, Series A no. 206-C, p. 32, § 17). 23. Undoubtedly, the applicant, too, caused some delays, particularly by his absence at the hearings which resulted in stay of the proceedings on 7 June 2002 and on 11 September 2000, as well as by not submitting the copies of his corrected claim on time in the first set of the proceedings. While taking this into account and even assuming that the applicant bears total responsibility for the length of the proceedings following his absence at the hearing in the second set of the proceedings, the Court nevertheless considers that the responsibility for the overall length of both sets of the proceedings lies primarily with the authorities. 24. Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of both sets of proceedings was excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 25. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 26. The applicant claimed approximately 62,500 euros (EUR) in respect of non-pecuniary damage. 27. The Government contested the claim. 28. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 8,000 under that head. B. Costs and expenses 29. The applicant also claimed approximately EUR 1,910 for the expenses incurred in the domestic proceedings. He did not specify his claim for the costs and expenses incurred in the proceedings before the Court. 30. The Government contested the claim. 31. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court rejects the claim for costs and expenses in the domestic proceedings. Having regard to the information in its possession and the above criteria, it however considers that the applicant, who was not represented by a lawyer, must have had expenses with the proceedings before the Court and awards him the sum of EUR 150 in that respect. C. Default interest 32. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage and EUR 150 (one hundred fifty euros) in respect of costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 3 August 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerCorneliu BîrsanRegistrarPresident

JUDGMENT OF THE COURT (Seventh Chamber) 21 July 2011 (*) (Appeal – Public procurement – European Maritime Safety Agency (EMSA) – Call for tenders relating to the ‘SafeSeaNet’ application – Decision rejecting a tenderer’s bid – Contract award criteria – Sub-criteria – Obligation to state reasons) In Case C‑252/10 P, APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 12 May 2010, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, represented by N. Korogiannakis, dikigoros, appellant, the other party to the proceedings being: European Maritime Safety Agency (EMSA), represented by J. Menze, acting as Agent, and by J. Stuyck and A.-M. Vandromme, advocaten, defendant at first instance, THE COURT (Seventh Chamber), composed of D. Šváby, President of the Chamber, E. Juhász (Rapporteur) and T. von Danwitz, Judges, Advocate General: P. Mengozzi, Registrar: C. Strömholm, Administrator, having regard to the written procedure and further to the hearing on 10 February 2011, having decided, after hearing the Advocate General, to proceed to judgment without an Opinion, gives the following Judgment 1 By its appeal, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (‘Evropaïki Dynamiki’) seeks to have set aside in part the judgment of the General Court of the European Union of 2 March 2010 in Case T‑70/05 Evropaïki Dynamiki v EMSA [2010] ECR II-0000 (‘the judgment under appeal’) in so far as the General Court dismissed its application for annulment of the decision of the European Maritime Safety Agency (EMSA) not to accept the tender submitted by the appellant in tendering procedure EMSA C‑1/01/04‑2004 relating to the contract entitled ‘SafeSeaNet Validation and further development’ and to award that contract to the successful tenderer (‘the contested decision’). Legal context 2 Under Article 97 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’), in the version applicable at the material time: ‘1. The selection criteria for evaluating the capability of candidates or tenderers and the award criteria for evaluating the content of the tenders shall be defined in advance and set out in the call for tender. 2. Contracts may be awarded by the automatic award procedure or by the best‑value-for-money procedure.’ 3 In that connection, Article 138 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L 357, p. 1) (‘the implementing rules’), relating to award arrangements and criteria, in the version applicable at the material time, provides: ‘1. Contracts shall be awarded in one of the following two ways: (a) under the automatic award procedure, in which case the contract is awarded to the tender which, while being in order and satisfying the conditions laid down, quotes the lowest price; (b) under the best-value-for-money procedure. 2. The tender offering the best value for money shall be the one with the best price-quality ratio, taking into account criteria justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance. 3. The contracting authority shall specify, in the contract notice or in the [tender] specifications, the weighting it will apply to each of the criteria for determining best value for money. The weighting applied to price in relation to the other criteria must not result in the neutralisation of price in the choice of contractor. If, in exceptional cases, weighting is technically impossible, particularly on account of the subject of the contract, the contracting authority shall merely specify the decreasing order of importance in which the criteria are to be applied.’ 4 Article 17(1) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), which was still in force at the relevant time in the context of the present case, provided: ‘The notices shall be drawn up in accordance with the models set out in Annexes III and IV and shall specify the information requested in those models. The contracting authorities may not require any conditions other than those specified in Articles 31 and 32 when requesting information concerning the economic and technical standards which they require of service providers for their selection (section 13 of Annex III B, section 13 of Annex III C, and section 12 of Annex III D).’ 5 Article 82 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) provides: ‘Directive 92/50/EEC, except for Article 41 thereof, and Directives 93/36/EEC and 93/37/EEC shall be repealed with effect from the date shown in Article 80, without prejudice to the obligations of the Member States concerning the deadlines for transposition and application set out in Annex XI. References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex XII.’ Background to the dispute 6 By two contract notices dated 1 and 3 July 2004, EMSA launched two calls for tender, one relating to ‘SafeSeaNet validation and further development’ under the reference EMSA C-1/01/04-2004 (OJ 2004 S 126) (‘call for tenders C-1/01/04’) and the other relating to the ‘Specification and development of a marine casualty database, network and management system (marine casualty information platform)’ under the reference EMSA C-2/06/04 (OJ 2004 S 128) (‘call for tenders C‑2/06/04’). 7 EMSA sent the invitations to tender and the tender specifications for calls for tenders C-1/01/04 and C-2/06/04 on 1 and 9 July 2004 respectively. 8 As regards call for tenders C-1/01/04, point 13 of the tender specifications states that ‘… The contract will be awarded to the tenderer who submits the most economically advantageous bid’, and that this would be assessed on the basis of the following factors: ‘(a) Technical evaluation criteria in their order of importance as weighted by percentage: 1. Proposed methodology for the project – this includes the detailed proposals of how the project would be carried out including milestones and deliverables (as defined in [point] 3 [of the tender specifications]). (40%) 2. Understanding of the specifications in terms of reference and the succinct presentation of that understanding. (20%) 3. Quality of the operational services (Helpdesk) (10%) (b) Total price (30%) Only bids that have reached a total score of a minimum of 70% and a minimum score of 60% for each criteri[on] will be taken into consideration for awarding the contract.’ 9 With regard to the first of those three award criteria, point 3 of the tender specifications, entitled ‘Reports and documents to be submitted’, provided that tenders were to include detailed information regarding the project implementation structure, each work package was to be clearly defined, and the project implementation structure was to include (as a minimum) the following: horizontal activities (point 3.1); a description of the project management team and responsibilities (point 3.2); quality control (point 3.3); deliverables on project management level (point 3.4); work package description and relations (point 3.5); and other relevant information concerning the submission of reports (point 3.6). 10 According to paragraphs 21 to 31 of the judgment under appeal: ‘21 The applicant claims that it sent to EMSA, by fax of 31 July 2004, a request for additional information. It claims to have repeated that request by fax of 1 August 2004. 22 By email of 2 August 2004, EMSA informed the applicant that the fax of 1 August 2004, containing that request for information, had been received incomplete and asked it to resend its questions by email, which the applicant did that same day. In that email, the applicant stated that it had tried to send the fax on 31 July 2004 and again on 1 August 2004, but that there seemed to have been a problem in transmitting the fax. It therefore asked that its request be dealt with, since the last day for submitting such requests, namely Saturday, 31 July 2004, was not a working day. 23 By email of 3 August 2004, EMSA informed the applicant that its questions would not be answered on account of their late submission, in accordance with point 8 of the invitation to tender. By email of the same day, the applicant pointed out once more that it had tried in vain to send that request for information on the days indicated and that, in any event, since the deadline for submitting questions was Saturday, 31 July 2004, it should have been extended to the next working day, namely, Monday 2 August 2004. 24 On 9 August 2004, the applicant submitted its tender. 25 By letter of 6 December 2004, EMSA informed the applicant that its tender had not been selected because its price/quality ratio was worse than that of the successful tender. 26 By fax of 7 December 2004, the applicant asked EMSA for the name of the successful tenderer, the characteristics and relative advantages [of its tender] and the scores given under each award criterion to both the applicant’s tender and that of the successful tenderer, a copy of the evaluation committee report and a comparison between its financial offer and that of the successful tenderer. 27 By letter dated 16 December 2004, which the applicant states it did not receive until 7 January 2005, EMSA informed the applicant of the scores achieved by its tender under each award criterion, as well as the total score of the successful tender. With regard to the latter’s characteristics, EMSA stated as follows: “clear approach in terms of methodology to be used for managing the whole project. The description of the tasks is realistic (well completed with tables indicating the effort and resources affected, Gantt diagram and breakdown of tasks); the number of man days offered is sufficient; deliverables have been assigned per type of task; good understanding of the project and good approach in the management plan; the proposed Service Level Agreement complies with the requirements of the project.” 28 On 5 January 2005, the applicant sent a fax to EMSA stating that it had not been informed about the outcome of the contract award process in respect of the two calls for tender within the time-limits imposed by the Financial Regulation. It also complained that EMSA had proceeded to the signature of contracts with the selected tenderers and published this information in the Official Journal. 29 EMSA replied, by letter and fax of 7 January 2005, attaching a copy of its letter of 16 December 2004. 30 By fax of 18 January 2005, the applicant pointed out that it had received the letter from EMSA dated 16 December 2004 late. It also complained that EMSA had infringed the Financial Regulation in that it had failed to answer the applicant’s request for information within the time-limit, had not informed the applicant of the name of the successful tenderer, the amount of its financial offer, or the technical evaluation of its tender in comparison to the applicant’s own, and had decided to proceed to signature of the contract. Furthermore, it asserted that the reference made by EMSA, in its letter of 16 December 2004, to the score given to the applicant’s tender by the evaluation committee for each award criterion was not detailed and did not include reasons for its decision. Finally, the applicant requested a number of clarifications with regard to the evaluation committee’s assessment. 31 By fax of 9 February 2005, EMSA replied to the applicant, informing it of the name of the successful tenderer and stating that the applicant had already received the result of the tender evaluation and that more detailed information, such as financial and commercial details of the successful tenderer, would harm that party’s legitimate interests and could therefore not be disclosed.’ 11 As regards call for tenders C-2/06/04, by decision of 21 September 2004, the tender opening board accepted the tender submitted by SSPA Sweden AB (‘SSPA’), despite the fact that, as the General Court found in the judgment under appeal, that tender had been received on 10 August 2004, that is to say, one day after the deadline set for submitting tenders, and that the envelope containing it was not postmarked. 12 By letter of 30 November 2004, EMSA informed the appellant that its tender in respect of call for tenders C-2/06/04 had not been selected for the same reason as its tender relating to call for tenders C-1/01/04. The procedure before the General Court and the judgment under appeal 13 On 14 February 2005, Evropaïki Dynamiki brought an action before the General Court for annulment of, firstly, EMSA’s decisions not to accept its tenders relating to the two calls for tenders at issue and to award the contracts to the successful tenderers, and, secondly, all of EMSA’s subsequent decisions relating to those calls for tenders. 14 By the judgment under appeal, the General Court annulled EMSA’s decision to award the contract to the successful tenderer in tendering procedure C-2/06/04, but dismissed the action in so far as it related to tendering procedure C-1/01/04. 15 In relation to tendering procedure C-2/06/04, the General Court noted that SSPA’s tender had reached EMSA on 10 August 2004, that is to say, one day after the deadline for submission of tenders, and that there was no post office stamp, either of despatch or receipt, on the envelope containing the tender. Moreover, the envelope neither carried any indication that it had been sent by registered mail, nor did it carry any date of submission at a post office. As a result, the General Court considered that that procedural defect affected the validity of the procedure, since, if SSPA’s tender had been rejected, the administrative procedure would clearly have had a different outcome. Consequently, the General Court found a breach of Article 143 of the implementing rules and point 2 of the invitation to tender. 16 With regard to tendering procedure C-1/01/04, after having rejected the plea of inadmissibility alleging that it lacked jurisdiction to hear an action brought on the basis of Article 230 EC against an act of EMSA, and alleging exceptio obscuri libelli, put forward by EMSA, the General Court considered the appellant’s action. 17 In support of the action, the appellant raised four pleas in law, alleging, firstly, breach of the principles of good faith, good administration and diligence, secondly, infringement of the Financial Regulation, the implementing rules and Directive 92/50, thirdly, manifest errors of assessment by EMSA and, fourthly, lack of relevant information and failure to state reasons. 18 All those pleas in law were rejected by the General Court as unfounded or inadmissible. Procedure before the Court of Justice and forms of order sought by the parties 19 By its appeal, the appellant claims that the Court should set aside the judgment under appeal in part, to the extent to which that judgment dismissed its application for annulment of the contested decision, concerning call for tenders C‑1/01/04, and order EMSA to pay the costs. 20 EMSA contends that the Court should dismiss the appeal and order the appellant to pay the costs. Consideration of the appeal 21 In support of its appeal, the appellant invokes three grounds alleging, respectively, an error of law consisting in misinterpretation of Article 97 of the Financial Regulation, Article 138(3) of the implementing rules and Article 17(1) of Directive 92/50, breach of the obligation to state reasons on the part of the contracting authority and the General Court, and a manifest error of assessment. First plea, alleging misinterpretation of Article 97 of the Financial Regulation, Article 138(3) of the implementing rules and Article 17(1) of Directive 92/50 Arguments of the parties 22 Evropaïki Dynamiki submits that the General Court erred in law in misinterpreting Article 97 of the Financial Regulation, Article 138(3) of the implementing rules and Article 17(1) of Directive 92/50, to which the General Court referred in order to assess the legality of the subdivision of the award criteria. That interpretation is claimed to be contrary to the judgment in Case C‑532/06 Lianakis and Others [2008] ECR I‑251 in which the Court of Justice interpreted Directive 92/50 as meaning that a contracting authority cannot apply, in respect of the award criteria, sub-criteria which it has not previously brought to the tenderers’ attention. 23 In that regard, the General Court found, at paragraphs 147 and 148 of the judgment under appeal, as follows: ‘147 … a contracting authority cannot apply sub-criteria for award criteria which it has not previously brought to the tenderers’ attention (see, to that effect and by analogy, Lianakis and Others, paragraph 38). 148 In accordance with settled case-law, it is, none the less, possible for a contracting authority, after expiry of the period for submission of tenders, to determine weighting coefficients for sub-criteria of award criteria previously established, on three conditions, namely that that ex post determination, firstly, does not alter the criteria for the award of the contract set out in the contract documents or the contract notice; secondly, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; and, thirdly, was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers (see, to that effect and by analogy, [Case C‑331/04] ATI EAC e Viaggi di Maio and Others [[2005] ECR I‑10109], paragraph 32, and Lianakis and Others, …, paragraphs 42 and 43.’ 24 However, the General Court found, at paragraphs 151 and 152 of the judgment under appeal, that in this case the evaluation committee had not subdivided the award criterion into sub-criteria which had not previously been brought to the tenderers’ attention. Those sub-criteria correspond, essentially, to the description of the first criterion, concerning methodology, as specified in point 13.1 of the tender specifications, read in the light of point 3 thereof. Therefore, the evaluation committee merely weighted the 40 points available for the first award criterion by dividing them fairly between those sub-criteria. 25 At paragraph 155 of the judgment under appeal, the General Court rejected the appellant’s complaint as unfounded, noting that the appellant had not shown that the decision of the contracting authority to introduce sub-criteria had led to an alteration of the contract award criteria previously defined in the tender documents, or that it contained elements which could have affected the preparation of the tenders, or that it had given rise to discrimination against the appellant or one of the tenderers. 26 According to the appellant, the General Court, in examining the first award criterion, ‘Proposed Methodology for the project’, proceeded to compare it, improperly, with the two sub-criteria at issue, ‘repartition of tasks, manpower offered of quality and man-days (roadmap)’ and ‘deliverables’, and concluded that the subdivision of the criterion in the course of the evaluation of the tenders was lawful, in accordance with Lianakis and Others. In the appellant’s submission, due to the correspondence of those sub-criteria to the first award criterion, the General Court incorrectly drew the conclusion that the evaluation committee had not subdivided that criterion into sub-criteria which had not previously been brought to the attention of the tenderers. 27 The appellant infers from the comparison that it carries out between the present case and Lianakis and Others that the subdivision carried out by the contracting authority during the tendering procedure vitiated the procedure at issue and that, had it wished to carry out such a subdivision, it should have done so before submission of the tenders. 28 EMSA, the respondent in the present appeal, contends that Lianakis and Others, in which the Court interpreted provisions of Directive 92/50, does not apply to the present case, which concerns a public contract awarded by the Community institutions. However, even if that earlier case is relevant, the circumstances of the present case can be distinguished from those of the earlier case. The General Court thus correctly applied ATI EAC e Viaggi di Maio and Others, in which the Court accepted that it is possible to apply weighting to award criteria provided that the weighting does not alter the criteria for the award of the contract set out in the contract documents, the weighted criteria do not contain elements which, if they had been known at the time the tenders were prepared, could have led to their content being amended, and the criteria were not adopted on the basis of considerations likely to give rise to discrimination against one of the tenderers. Findings of the Court 29 It should be noted at the outset that, where a contract is to be awarded by the best-value-for-money procedure, in accordance with Article 97(2) of the Financial Regulation and Article 138(1) of the implementing rules, the contracting authority must define and specify in the tender specifications the award criteria enabling evaluation of the content of tenders. In addition, those criteria must, in accordance with Article 138(2) of the implementing rules, be justified by the subject of the contract. According to Article 138(3), the contracting authority must also specify, in the contract notice or in the tender specifications, the weighting it will apply to each of the criteria for determining the best value for money. Those provisions seek to ensure compliance with the principles of equal treatment and transparency at the stage of evaluation of tenders with a view to award of the contract (see, by analogy, Case 31/87 Beentjes [1988] ECR 4635, paragraphs 21 and 22, and Case C‑470/99 Universale-Bau and Others [2002] ECR I‑11617, paragraphs 90 to 92). 30 Consequently, in order to ensure compliance with the principles of equal treatment and transparency, potential tenderers should be aware of all the elements to be taken into account by the contracting authority in identifying the tender offering the best value for money and, if possible, their relative importance, when they prepare their tenders (see, to that effect, ATI EAC e Viaggi di Maio and Others, paragraph 24; and Lianakis and Others, paragraph 36). 31 It follows that a contracting authority cannot apply, in respect of the award criteria, sub-criteria which it has not previously brought to the tenderers’ attention (see, to that effect, Lianakis and Others, paragraph 38). 32 It should be recalled that, at paragraphs 44 and 45 and in the operative part of Lianakis, the Court interpreted Directive 92/50 read in the light of the principle of equal treatment of economic operators and the ensuing obligation of transparency. Accordingly, the legality of the use of sub-criteria and the corresponding weighting must always be assessed on the basis of those principles. The Court did not establish a total or absolute ban on contracting authorities’ specifying in more detail a criterion previously brought to the tenderers’ attention and giving it weighting. 33 Accordingly, it is possible for a contracting authority to determine, after expiry of the time-limit for submitting tenders, weighting factors for the sub-criteria which correspond in essence to the criteria previously brought to the tenderers’ attention, provided that three conditions apply, namely, that that subsequent determination, firstly, does not alter the criteria for the award of the contract set out in the contract documents or contract notice; secondly, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; and, thirdly, was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers (see, to that effect, ATI EAC e Viaggi di Maio and Others, paragraph 32, and Lianakis and Others, point 43). 34 It follows from paragraphs 149 to 155 of the judgment under appeal that the General Court assessed the disputed sub-criteria in the light of that case-law and found that their application complied with that case-law. 35 For that purpose, it must be considered that an evaluation committee must be able to have some leeway in carrying out its task. Accordingly, it may, without amending the contract award criteria set out in the contract documents or the contract notice, structure its own work of examining and analysing the submitted tenders. 36 Consequently, it must be found that the General Court did not err in law in that respect, with the result that the first plea must be rejected as unfounded. The second plea, alleging breach of the obligation to state reasons 37 The second plea is in two parts. These concern breach of the obligation to state reasons imposed on the contracting authority and the General Court, respectively. The first part – Arguments of the parties 38 In support of the first part, the appellant refers to the Financial Regulation and the implementing rules as well as Directive 2004/18, which oblige the contracting authority to inform, upon request, the rejected tenderer ‘of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or the parties to the framework agreement’. Evropaïki Dynamiki deduces from the General Court’s case-law that a contracting authority cannot be considered to be released from its duty to state reasons and respect the principle of transparency when it refuses to disclose a copy of the evaluation report to the tenderers which have requested it. Consequently, EMSA ought to have communicated to it, in response to its written request, a full copy of the evaluation report in order for the appellant to be in a position to assess the reasons for the rejection of its tender, and not, as occurred in the present case, during the course of the proceedings before the General Court. 39 EMSA contends that, as part of the duty to state reasons, a contracting authority is under no obligation to communicate the evaluation committee’s report to an unsuccessful tenderer. Under Article 100(2) of the Financial Regulation, the contracting authority is merely obliged to notify those concerned of the characteristics and relative advantages of the successful tender and of the name of the tenderer to whom the contract has been awarded. 40 In relation to the complaint that much of the information was communicated to the appellant only at the stage of submission of EMSA’s statement of defence before the General Court, EMSA contends that that issue has nothing to do with the obligation to state reasons and that it was raised in the context of tendering procedure C‑2/06/04, which is not the subject of the present appeal. – Findings of the Court 41 It is sufficient to note that the appellant, in the first part of the second plea, does not precisely determine the paragraph of the judgment under appeal which it criticises and merely refers to the procedure relating to call for tenders C-2/06/04, which is not the subject of the present appeal. 42 Therefore, the first part of the second plea must be rejected as inadmissible. The second part – Arguments of the parties 43 The appellant considers that the General Court did not give sufficient reasons in the judgment under appeal, which suggested that the appellant was in a position to deduce the relative advantages of the successful tender. Accordingly, the General Court interpreted the contracting authority’s obligation to state reasons in a fresh and wholly wrong manner, since it connected that obligation to the personal qualities of the addressee of the decision without giving that addressee the actual opportunity to understand the outcome of the evaluation and the relative advantages of the successful tender. This, it submits, is contrary to Article 41 of the Charter of Fundamental Rights of the European Union, in particular the right of any person to have access to his or her file, and to Article 47 of that Charter, which guarantees the fundamental right of any person to a fair and public hearing. 44 Moreover, the judgment under appeal is, in the appellant’s submission, at variance with the judgment in Case C-450/06 Varec [2008] ECR I-581, which should be applied by analogy. The obligation to communicate information relating to the award of a contract means that access to that information should be refused only by way of exception, solely when such information is deemed confidential or contains business secrets. Accordingly a balance must be struck, with priority being given to effective protection of the parties’ own interests before the General Court. Furthermore, the General Court ought to have examined individually the appellant’s arguments concerning the manifest error of assessment and, in particular, the arguments made separately for each of the award criteria. 45 EMSA contends that the General Court gave sufficient reasons for its decision in noting that point 13.1 of the tender specifications indicates the minimum total score (70%) and the minimum score for each award criterion (60%), which constitute the conditions for awarding the contract. Furthermore, in its letter of 16 December 2004, EMSA provided the appellant with sufficient information, in providing it with its marks for each criterion, its total score, the total score of the successful tenderer as well as the characteristics of the successful tender. The appellant should have understood on the basis of that information that it could not in any event have been awarded the contract concerned, as it was excluded from the award phase because of its insufficient score as regards the first and third award criteria. Findings of the Court 46 According to settled case-law, the obligation of the General Court to state reasons, pursuant to the first sentence of Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union, does not require the General Court to provide an account that follows exhaustively and point by point all the reasoning articulated by the parties to the case. The reasons may therefore be implicit, provided that they enable the person affected by a decision of the General Court to acquaint himself with the reasons for that decision and the Court of Justice to have sufficient information in order to exercise its power of review (see, in particular, judgment of 22 May 2008 in Case C-266/06 P Evonik Degussa v Commission, paragraph 103 and case-law cited). 47 In relation to the extent of the grounds of the judgment under appeal, the right of access to information of an unsuccessful economic operator following a procedure for the award of a public contract serves to protect his legal position in relation to that procedure, in order to bring a possible action against the contracting authority’s decision, but it does not constitute a legal basis for formulating criticisms of every kind, which are not capable of affecting that legal position. Therefore, the General Court is not required to rule on such criticisms. 48 It follows from paragraphs 172 to 181 and 196 to 207 of the judgment under appeal that the General Court explained sufficiently the reasons for which it considered, respectively, that the statement of reasons for the contested decision enabled the appellant to infer the relative advantages of the successful tender compared with its own tender and that the appellant did not show a manifest error of assessment of its tender on the part of the contracting authority. The appellant’s reliance on certain provisions of the Charter of Fundamental Rights of the European Union is not such as to call that finding into question. 49 Accordingly, the second part of the second plea must be rejected as unfounded. 50 Consequently, the second plea must be rejected as being in part inadmissible and in part unfounded. The third plea, alleging an error in law in examining the existence of a manifest error of assessment Arguments of the parties 51 Evropaïki Dynamiki maintains that the General Court did not examine individually the pleas alleging the manifest error of assessment that it raised at first instance and that the General Court thereby erred in law. 52 There is, it claims, a contradiction in the judgment under appeal, in that the General Court finds that the limited information provided to the appellant was sufficient for it to assert its rights, whilst in the same judgment requiring the appellant to demonstrate how those alleged failures affected the conclusions of the evaluation report. The appellant thus adequately showed that EMSA had made manifest errors of assessment such as to justify the annulment of the contested decision and the appellant invites the Court to examine those errors again and thoroughly. 53 EMSA considers that the appellant merely repeats facts and arguments which have already been submitted to the General Court and cannot be examined on appeal. Moreover, the judgment under appeal, which shows that the General Court did in fact examine the appellant’s arguments individually, rightly states that Evropaïki Dynamiki was unable to adduce evidence to support those arguments. Findings of the Court 54 It follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, merely reproduces the pleas in law and arguments previously submitted to the General Court. Such an appeal amounts in reality to no more than a request for re‑examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (see, in particular, Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraphs 34 and 35; Case C‑76/01 P Eurocoton and Others v Council [2003] ECR I‑10091, paragraphs 46 and 47; and Case C‑280/08 P Deutsche Telekom v Commission [2010] ECR I‑0000, paragraph 24). 55 In this case, by the present plea, the appellant requests the Court of Justice in fact to re-examine the pleas and arguments which it has already submitted to the General Court, referred to in paragraphs 182 to 194 of the judgment under appeal, and which were considered in paragraphs 196 to 207 of that judgment. 56 Consequently, the third plea must be rejected as inadmissible. 57 It follows from all the foregoing that the appeal must be dismissed in its entirety. Costs 58 Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since EMSA has applied for costs and the appellant has been unsuccessful, the latter must be ordered to pay the costs. On those grounds, the Court (Seventh Chamber) hereby: 1. Dismisses the appeal; 2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs. [Signatures] * Language of the case: English.

LORD JUSTICE SIMON BROWN: The applicant is an Ethiopian citizen aged 33 who arrived in this country on 18 July 1999 and three days later applied for asylum. Her application was refused by the Secretary of State. The applicant's appeal against the refusal, and an associated human rights appeal invoking Articles 3 and 8 of the Convention, were dismissed by the adjudicator in a very detailed and careful 14-page reserved determination on 3 April 2002. The applicant's further appeal to the Immigration Appeal Tribunal was dismissed, again in a reserved judgment, on 2 August 2002. On 5 September 2002 the IAT refused permission to appeal, the tribunal chairman observing that "there is no arguable point of law". On 23 October 2002 I myself considered the application for permission to appeal on the documents and refused it in the following terms: "I agree with the IAT that no arguable point of law arises here. The reality is that there have been 2 adverse decisions here on the facts and the applicant is not entitled to a third. Ingenious though counsel's very full skeleton argument is, I am wholly unpersuaded by it." Nothing daunted, the applicant has renewed the application by way of oral hearing today and, pursuant to my own earlier order, it has come before two members of the court, Lord Justice Clarke as well as myself. The reason I provided for that was because, as it is well-recognised that asylum cases are to be regarded as of particular importance and calling for the most anxious scrutiny, it seemed to me right to ensure that my own view of the lack of merits of this proposed appeal did not stand alone. As I understand it, my Lord now shares my view. I propose to say really very little beyond what I said earlier by way of reasons for refusing, as I believe to be appropriate here, this application. Detailed refutation of the various proposed grounds would inevitably require a lengthy judgment, but that is simply not appropriate on an application for permission such as this. The high points of the applicant's case for asylum were, first, the report from the Medical Foundation for the Care of the Victims of Torture, which catalogued an extensive list of scarring and attested therefore to substantial past ill-treatment; and, secondly, her continuing suffering from severe depression. It is quite impossible to say, however, that these circumstances are consistent only with an acceptance of her asylum claim. On the contrary, given that there was ample material to support the adjudicator's adverse credibility findings, it was clearly open to the adjudicator to conclude that the more likely source of ill-treatment had been spousal abuse. There was certainly more than enough evidence justifying the conclusion that she had lied as to her activities with the Oromo Liberation Front and would be of no possible interest to the Ethiopian authorities. In a skeleton argument received by the court only this morning (lamentably late, as must surely be obvious to all), Mr Eicke now seeks to refocus the applicant's case and to capitalise on the findings of spousal abuse. Essentially his argument is encapsulated in paragraphs 9 and 10 of the further skeleton as follows: "9. The logical consequence of these findings [the findings that the applicant's husband had seriously abused her and had taken the two children, and that her main present aim is to be reunited with the children, which is obviously best achieved in Ethiopia] (and her adamant denial of any mistreatment at the hands of her husband) is that, if returned, the Appellant would do everything to find and be reunited with her children and, as a result, her husband -- the serious abuser as identified by the IAT. 10. The same objective material that led the IAT to conclude that the Appellant had suffered from spousal abuse also provided evidence that there was little if any protection available for women suffering from spousal abuse in Ethiopia." For my part, however, I am unimpressed by this revised case; a case, be it noted, which is diametrically opposed to that which she in fact advanced before the independent appellate authorities, namely that she had never suffered harm at her husband's hands. Mr Eicke put before us this court's decision in Ivanauskiene v A Special Adjudicator [2001] EWCA Civ 1271, unreported transcript 31 July. There, however, the whole basis of the claim to protection under Article 3 of the Convention was that the appellant had been regularly assaulted by her former husband, a very different case from the present. Let me just read paragraph 41 of the adjudicator's determination in the present case: "I accept that she is a deeply traumatised individual who was inconsolable when asked about her children. I do not know whether she is overcome with remorse at having left them in Ethiopia. I do not know whether her distress arises out of any abduction attempt by her husband. But I do know that she is severely traumatised not least because of her separation from the children and her repeated dreams that they are dying of starvation in Ethiopia. I accept from the medical evidence that she is suicidal but it was clear from her evidence before me that what this Appellant desires more than anything else is to be reunited with her children and I do not know if this will ever be possible whilst she remains in the United Kingdom." Given the applicant's obvious, and wholly understandable, longing to be reunited with her children and in the face of her continuing adamant disavowal of fear of her husband, it really was not for the adjudicator or the IAT, still less is it for this court, to conclude that a return to Ethiopia would necessarily involve this country in a violation of Article 3. There is no evidence whatever available as to how the applicant's husband and children have fared over the past three years and more since she left Ethiopia. Who knows on what basis the applicant might now be able on return there to secure the children's return to her? Who knows indeed what the husband's present position and plans may be? This case has already been twice considered in the greatest detail by fact-finding tribunals. This court in my judgment is not required, nor indeed entitled, to undertake what essentially would constitute a third investigation of the facts. For my part I am satisfied that no properly arguable point of law arises here. I would refuse this renewed application. LORD JUSTICE CLARKE: I agree that the application on the original grounds must fail because the appeal raises no question of law and is simply an attempt to reargue the facts. It is no doubt for that reason that Mr Eicke has entirely recast the application. I agree that the application as recast must fail on this ground too, for the reasons given by Lord Justice Simon Brown. I would only add this. In paragraph 9 of the latest skeleton argument, this point is made: "The logical consequence of these findings (and her adamant denial of any mistreatment at the hands of her husband) is that, if returned, the Appellant would do everything to find and be reunited with her children and, as a result, her husband -- the serious abuser as identified by the IAT." As I see it, there is no factual basis for the conclusion that the applicant would continue to deny spousal abuse. If, as the factual basis of this argument assumes, she had in fact been abused, I can see no factual basis upon which the IAT could allow an appeal from the special adjudicator. There is no evidence to support the conclusion that in those circumstances the applicant would or might run the risk of further spousal abuse. There is simply no evidence to that effect. I too would refuse the application. ORDER: Application refused

THIRD SECTION CASE OF MAUMOUSSEAU AND WASHINGTON v. FRANCE (Application no. 39388/05) JUDGMENT STRASBOURG 6 December 2007 This judgment is final but it may be subject to editorial revision. In the case of Maumousseau and Washington v. France, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Boštjan M. Zupančič, President,Corneliu Bîrsan,Jean-Paul Costa,Elisabet Fura-Sandström,Alvina Gyulumyan,Egbert Myjer,Isabelle Berro-Lefèvre, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 15 November 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 39388/05) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two French nationals, Ms Sophie Maumousseau and her daughter Charlotte Washington, on 26 October 2005. 2. The applicants were represented before the Court by Jean de Salve de Bruneton, a member of the Conseil d'Etat and Court of Cassation Bar. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs. 3. The applicants alleged, in particular, that there had been a violation of Articles 6 and 8 of the Convention. 4. On 2 May 2006 the President of the Court's Second Section decided to give notice of the application to the Government. In accordance with Article 29 § 3 of the Convention, the Chamber decided that the admissibility and the merits of the case would be examined at the same time. It was also decided to grant the application priority treatment under Rule 41 of the Rules of Court. 5. On 19 January 2007 the Court changed the composition of its Sections (Rule 25 § 4). This application was allocated to the newly composed Third Section (Rule 52 § 1). 6. A hearing took place in public in the Human Rights Building, Strasbourg, on 28 June 2007 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMs Anne-Françoise Tissier, Head of the Human Rights Section, Department of Legal Affairs, Ministry of Foreign Affairs, Agent,Ms Marie-Gabrielle Merloz, Drafting Secretary, Human Rights SectionDepartment of Legal Affairs, Ministry of Foreign Affairs,Counsel,Mr François Thomas, Deputy Head of Bureau for International Legal Assistance in civil and commercial matters, Department of Civil Affairs, Ministry of Justice, Counsel; (b) for the applicantsMr Jean de Salve de Bruneton, member of the Conseil d'Etat and Court of Cassation Bar, Counsel,Ms Solange Vigand, lawyer,Adviser. The Court heard addresses by Mr de Salve de Bruneton and Ms Tissier and their replies to questions from judges. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The first applicant, Ms Sophie Maumousseau, is a French national who was born in 1967 and lives in Les Adrets de l'Estérel. She lodged the application in her own name and on behalf of her daughter, Charlotte Washington, the second applicant, who was born on 14 August 2000 in Newburgh, New York State (United States of America), and who has dual French and US nationality. 1. Background to the case 8. In May 2000 the first applicant married Mr Washington, a United States national, in the State of New York. Their daughter Charlotte was born on 14 August 2000. 9. Following a serious marital crisis, on an unknown date Ms Maumousseau initiated divorce proceedings in the USA, but she was unable to pursue them because, according to her, she could not afford to. 10. On 17 March 2003, together with the second applicant, she went to stay with her parents in France for the holidays with her husband's consent. She finally decided to remain there and did not return to the USA, despite her husband's repeated requests. 11. On a petition from Mr Washington dated 19 June 2003, the Family Court of the State of New York, Dutchess County, in an order of 15 September 2003, awarded temporary custody of Charlotte to her father, decided that she should live with him, and ordered the mother to return Charlotte immediately, requesting all competent bodies in France to assist the petitioner in repatriating the child to the State of New York. A hearing was scheduled for 14 November 2003 for the purposes of examining the father's petition for sole custody of his daughter and of hearing the mother's reasons for her opposition to such a decision. 2. Proceedings under the Hague Convention on the Civil Aspects of International Child Abduction and the proceedings concerning Charlotte's placement in specialist care 12. On 26 September 2003 Charlotte's father applied to the United States Central Authority in order to secure the return of his child. In accordance with the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the US Central Authority, on 14 October 2003, transmitted to the French Central Authority, the Bureau for International Legal Assistance in civil and commercial matters, a request for Charlotte's return to the United States. 13. On 15 October 2003 that request was forwarded to the Principal Public Prosecutor at the Aix-en-Provence Court of Appeal, on whose initiative the mother was summoned for interview by the gendarmerie. She stated that she refused to return the child to the father. 14. The public prosecutor at the Draguignan tribunal de grande instance, having been authorised by an order of 7 November 2003 on his ex parte application, brought proceedings against the first applicant for the purposes of obtaining an order that the child be returned to her father on the basis of Articles 3 and 12 of the Hague Convention. Mr Washington intervened on a voluntary basis in those proceedings. (a) Judgment of the Draguignan tribunal de grande instance 15. In a judgment of 15 January 2004 the court dismissed the claims of the public prosecutor and Mr Washington. It took the view that whilst Charlotte's removal had not been in any way wrongful, since it was not disputed by Mr Washington that he had agreed to the child's temporary removal to France, the fact that the child had been prevented from returning to her place of habitual residence, where Mr Washington exercised his rights of custody, was to be considered wrongful within the meaning of Article 3 of the Hague Convention, regardless of the reasons for which the applicant was opposed to her return. As to the risk for Charlotte in the event of her return, the court found as follows: “In the present case, in the light of the various attestations produced in the proceedings, both by Mr Washington and by [the applicant], there is no evidence of harmful conduct [on the part of the father] towards the child ... . However, it has been established and is not disputed by Mr Washington that the child Charlotte, who was born on 14 August 2003 [sic] and who is therefore aged only three years and a few months, has lived throughout her infancy mainly in the company of her mother, especially as the latter was not employed while in the United States. Dr P., who was Charlotte's doctor from her birth until 10 March 2003, has moreover certified that the applicant herself brought the child to most of the consultations and did not miss any appointments. The attestations produced in the proceedings in respect of Charlotte's life in France show that the mother/daughter relationship is extremely sound, as pointed out by Dr T., who reports that the child is not suffering from any psychological disturbance and has adapted well, particularly in her school life, as indicated by the attestation from the headmistress of the nursery school that [she] attends. The applicant arranged for the child to undergo a psychological examination by Dr V. Concerning the relations that the child had developed emotionally with her parental figures, this clinical psychologist noted the very strong predominance of the mother figure: - The child's psychological, psycho-affective and cognitive development is healthy, and there is an excellent relationship, with sound emotional ties, between Charlotte and her mother, and also between the child and her maternal grandparents. It also appears that she refers to the father figure, that she may mention when prompted by the therapist, without expressing any affect. - Charlotte seems to be developing harmoniously, having found a balanced life with her mother and maternal grandparents, and does not seem to have been affected mentally by her separation from her father or her departure from the United States of America, where she was born. It would thus be harmful for this child if her points of reference were changed and she was placed in a situation where she became separated from her mother and her mother's family out of a concern for effective restoration of the father's role. It transpires from the foregoing that, in view of Charlotte's infancy and her close relationship with her mother, in whose company she has always lived, both in the United States of America and since her arrival in France, her return would place her in an intolerable situation on account of the resulting separation from her mother, but also because of her removal from the environment to which she has adapted and her transfer to a new environment with her father in the State of her habitual residence, no concrete information having been forthcoming in this connection. In these circumstances, and in accordance with Article 13 (b) of the Hague Convention, it is not appropriate to order Charlotte's return to the United States of America ... on account of a grave risk that she would be placed in an intolerable situation.” 16. On 30 January 2004 the public prosecutor appealed against the decision of the Draguignan tribunal de grande instance. 17. In parallel to the French proceedings, by an order of 24 February 2004 delivered on 8 March 2004, the Family Court of the State of New York, ruling on the merits of the father's petition, in the absence of the mother – who had failed to appear despite having been served notice of the hearing –, awarded the father sole custody of the child, ordered that the child be returned and held that the court retained jurisdiction to reconsider the child's best interests as well as the court's directions in the case if requested by either party. (b) Judgment of the Aix-en-Provence Court of Appeal 18. In a judgment of 13 May 2004, served on 1 June 2004, the Aix-en-Provence Court of Appeal set aside the judgment of 15 January 2004 and ordered Charlotte's prompt return to the place of her habitual residence in the United States of America. The judgment gave the following reasons: “... [the first applicant] requested the benefit of the exception provided for in Article 13 (b) of the Hague Convention ... It is not for the Court to assess the educative and affective capacities of each parent but to ascertain whether the parent who retains the child has adduced evidence to show that if returned the child would be exposed to real and immediate physical or psychological harm and would be placed in an intolerable situation before a decision on the merits is taken by the court of the place of habitual residence, it being understood that, in accordance with Article 19 of the Hague Convention, a decision under that Convention concerning the return of the child will not be a determination on the merits of any custody issue. Ms Maumousseau has argued that the child should not be returned to the United States of America on child protection grounds, on account of the violent and alcoholic behaviour of Mr Washington who, she has also alleged, took drugs. The attestations produced by Ms Maumousseau, issued by her parents, Mr and Mrs Louis, Mrs Musard, Mrs Bernard, Mrs Degeneve and Mrs Buckley, mainly relate to her own allegations, which she had imparted to them, about her husband's behaviour towards her. None of them provide evidence of any harmful attitude on the part of Mr Washington towards his daughter. He has himself produced various affidavits from work colleagues, friends of the couple and neighbours, testifying that he is a caring father, is not an alcoholic and does not take drugs. He has also produced the results of tests dated 9 March 2004 showing the absence of any trace of drugs. The domestic incident report of 4 September 2002 from New York State, the medical certificates of 18 March 2003 and 20 November 2003 issued by Dr Broglio, that of 3 December 2003 by Dr Page, and the complaint for violence filed on 4 December 2003, do not relate to Charlotte Washington at all. The only document concerning Charlotte is a child protection report filed on 2 October 2001 by the social services of Dutchess County, which noted a lack of supervision imputable to the child's mother following a fall by the child in the fire-escape stairwell. This incident shows that the New York State services are protective of the child's interests. Ms Maumousseau has not shown that the child's return would be harmful for her on account of the father's behaviour. In fact, she had herself written to him on 4 May 2003 requesting that he send various belongings and objects for Charlotte and adding: “we hope you will come and see us soon and live with us”. Ms Maumousseau argues that the child's return would place her daughter in an intolerable psychological situation on account of being separated from her mother after having adapted to her new life. Charlotte, now three and a half years old, has been living with her mother and maternal grandparents for the past year. She has settled well in the village life, has been attending nursery school since 3 September 2003 and takes gymnastics lessons. The headmistress of the nursery school describes her as a well-behaved child who works well, plays with all her classmates, speaks fluent French, understands everything she is told and makes herself understood, has adapted perfectly to school, and shows much self-fulfilment and contentment. Dr Torres Chavanier, a psychiatrist, certified on 9 December 2003 that she was a smiling and lively child with a very satisfactory psychomotor and intellectual development for her age and that she showed no signs of psychological disorder. He also pointed out that the mother-child relationship was very sound. Mr Veschi, a clinical psychologist, certified that he had seen the child at the request of Ms Maumousseau and had drawn up an examination report dated 10 December 2003. He noted the child's very strong emotional relationship with her mother and maternal grandparents, a very strong predominance of the mother figure reflected in her imaginative creations and in symbolic games, and her reference to the father figure without expressing any affect. He concluded his report by stating that the child was in good psychological, psycho-affective and cognitive health, which was apparently developing harmoniously, that she seemed to have found a balanced life with her mother and maternal grandparents, and did not seem to have been affected mentally by her separation from her father or her departure from the United States of America, where she was born. He added that '[i]t would thus be harmful for this child if her points of reference were changed and she was placed in a situation where she became separated from her mother and her mother's family out of a concern for effective restoration of the father's role'. The harm referred to in Article 13 (b) of the Hague Convention cannot be constituted solely by separation from the parent who acted unlawfully and created the risk. The observations of the psychiatrist, psychologist and headmistress show that the child has the capacity to adapt to new circumstances. Mr Washington has been employed by the company Verizon Communications, as a consultant since 1988, and as a video specialist since December 1999. In 2002 his monthly salary amount to 4,500 euros. He has been a tenant in the same residence since June 2000, i.e. before Charlotte was born, renting a two-room apartment for a monthly rent of 1,009 dollars that he pays regularly. His employer wrote to him on 18 February 2004 that he agreed to adapt his working hours so that he could work only two days a week when necessary, as the nature of his work allowed him to work outside the company's premises, whether at home or elsewhere. Ms Maria Nagy, a graduate of a nursing school and a neighbour of Mr Washington, informed him in a letter of 6 February 2004 that she agreed to look after Charlotte, day or night, as required. The head of the nursery section of a children's day care and learning centre in Wappingers Falls confirmed by a letter of 20 February 2004 that Charlotte had been admitted to it. The affidavits and photographs produced by Mr Washington further show that he has the support of his family and friends. The environment that Mr Washington would provide on his daughter's return, being the environment in which she lived from 14 August 2000 until her removal on 17 March 2003, does not indicate a risk of any harm that would place the child in an intolerable situation. Ms Maumousseau alleged that there was a risk that she would no longer be allowed to travel freely to the United States. She produced the form for entry into the United States that has to be filled in by non-immigrant visitors without a visa, showing that entry into the country may be refused to a person who has prevented a US citizen from exercising his or her custody rights. A permanent resident card, valid from 21 June 2003 to 10 October 2013, was granted to Mrs Washington née Maumousseau on 3 October 2003, further to her application of 21 August 2000. As a result, the US authorities cannot prevent her from returning to the United States where the family's habitual residence is located and where she will be able to assert her rights in the context of adversarial proceedings. The decisions concerning the exercise of parental authority are essentially temporary and may be modified to take the child's interest into account. The judge of the Dutchess County Family Court, New York State, moreover stipulates in his order of 24 February 2004 that 'the court reserves the right and retains jurisdiction to decide on the child's interest and will consider any new measures that may be taken by the two parties in accordance with this decree [sic]'. Having regard to all of the foregoing elements, which are sufficient for adjudication without it being necessary to order any investigation, Mrs Washington née Maumousseau has not shown that there is a grave risk that Charlotte's return would expose her to physical or psychological harm or place her in an intolerable situation. Consequently, it is appropriate to set aside the judgment appealed against and to order the child's prompt return to the place of her habitual residence, in accordance with Article 12 of the Hague Convention of 25 October 1980.” 19. The first applicant appealed against this judgment to the Court of Cassation claiming a violation of Article 13 (b) of the Hague Convention and of Article 8 of the European Convention on Human Rights, and a failure to take into account the child's “best interests” as guaranteed by Article 3 § 1 of the New York Convention on the Rights of the Child (the “New York Convention”). 20. On 8 June 2004 the first applicant was interviewed by the police with a view to the voluntary return of the child, who had been taken into hiding. On 2 and 9 July 2004 the mother was questioned by the public prosecutor for the same purpose. On those latter occasions she took note of the fact that she was committing a criminal offence by keeping her daughter in the current situation and refused to enforce the judgment of 13 May 2004. 21. On 23 September 2004 the public prosecutor of Draguignan, assisted by four police officers, entered Charlotte's nursery school seeking to enforce the judgment of the Court of Appeal. It can be seen from the various press articles in the file that the first applicant, the child's grandparents and school staff physically opposed the police intervention by forming a protective barrier around the child, helped by the prompt arrival of several villagers and the village mayor himself. Faced with this resistance, in the course of which blows and insults were apparently exchanged, the public prosecutor provisionally discontinued the enforcement of the decision. The operation attracted widespread media attention, nationally as well as locally. The then Minister of Justice announced that he would request the General Inspectorate of Judicial Services to study the means of intervention best adapted to this type of dispute; however, no such report has ever been filed or published. (c) Charlotte's placement in specialist care 22. In the meantime, on 28 May 2004, the first applicant had applied to the Draguignan Youth Court seeking a measure of “educational assistance” for her daughter. In a decision of 2 August 2004 the Youth Court ordered a measure of investigation and educational guidance and prescribed a psychiatric examination as follows: “It appears that Charlotte, who is almost four years old, is embroiled in a relentless conflict between her parents, before the courts and in the media, and this must be upsetting or disturbing for her. Charlotte may also feel and apprehend fear about the prospect of being separated for good from her father or mother. These conditions may particularly give rise to anxiety, suffering and worry for a little girl.” 23. In an educational assistance order of 27 September 2004 the Draguignan Youth Court decided on the placement of the second applicant for a period of six months in specialist family care with the ADSEA for the département of Var, with a right of access for both parents, on the following grounds: “It transpires from the interim report issued by the department responsible for the investigation and educational guidance, from the representations of the parents and the child's ad hoc administrator, from the submissions of the parties and the public prosecutor, from the press articles in the case file, from correspondence and from judicial decisions, that the conflict between the parents reached a climax on 23 September 2004 in Les Adrets, inevitably causing this little girl psychological distress, fear, anxiety, terrors and confusion. Charlotte was at the heart of a situation of severe and active physical and mental violence and witnessed serious clashes between adults of which she was the subject. These circumstances have entail for this child a strong emotional condition that endangers her health and security. The idea, for Charlotte, of being constantly reminded that she risks being permanently separated from her father or mother must inevitably have been strengthened on that occasion ... Charlotte is living today in semi-clandestine conditions, deprived of contact with her father, the subject of concern among members of her family, and a hostage in the conflict between her parents, as enshrined in various decisions. In order to give her some respite, some time to catch her breath and get on with her childhood, to distance her from the competition of which she is the target, with the risk of a psychological breakdown, it is appropriate to order that she be placed for a period of six months in specialist family care with the ADSEA for the département of Var.” 24. In a judgment of 3 December 2004 the Aix-en-Provence Court of Appeal endorsed the child's temporary placement in care but, when ruling on the merits, ordered that she be removed from care and returned to her father in accordance with the US court's decision and its own decision of 13 May 2004. 25. On 4 December 2004 Charlotte left France for the USA. 26. In a judgment of 21 March 2005 the Youth Court ordered the discontinuance of the educational assistance measure: “The conflict over this child must have placed Charlotte in a situation of uncertainty, anxiety and suffering. The present outcome of this conflict, namely Charlotte's separation from her mother, must have been very psychologically harmful for this four-year-old child who until then had benefited from the warm and orderly environment provided by the mother. A whole sphere of her past life has thus disappeared – left behind in a few hours on the plane. This wrench will take a long time to heal. In this sense, Charlotte remains in a situation of danger in terms of her health, within the meaning of Article 375 of the Civil Code. The fact that Charlotte lives with her father in the USA nevertheless precludes the continuation of any measure of support for the girl or her parents. On that ground alone it is ordered that the educational assistance measure be discontinued.” (d) Judgment of the Court of Cassation dismissing the first applicant's appeal against the judgment of the Aix-en-Provence Court of Appeal 27. In a judgment of 14 June 2005 the Court of Cassation dismissed an appeal by the first applicant in spite of the advocate-general's submissions to the contrary. The judgment is reasoned as follows: “It is apparent from Article 13 (b) of the Hague Convention of 25 October 1980 that an exception to the child's prompt return may be allowed only if there is a grave risk of harm or of an intolerable situation. Under Article 3 § 1 of the New York Convention on the Rights of the Child – a provision which is directly applicable in the French courts – the best interests of the child must be a primary consideration in the assessment of the relevant circumstances. Without having to deal with a mere argument, the Court of Appeal noted, in its discretion, after referring to the conditions of the child's life with her mother, that there was no evidence that the father had displayed a dangerous attitude towards his daughter, that it had been established that he was neither an alcoholic nor a drug addict, that the child's psychological condition was satisfactory, and that her father would offer her favourable living conditions in the United States, with the assistance of a nursing school graduate. These findings show that the child's best interests were taken into consideration by the Court of Appeal, which rightly concluded, without laying itself open to the complaints in the present appeal, that it was appropriate to order the child's prompt return in accordance with the Hague Convention.” 3. Divorce proceedings initiated by the first applicant in France 28. In parallel to the various sets of proceedings mentioned above, the first applicant initiated divorce proceedings in France on 6 November 2003, when she filed a petition for divorce, on the grounds of fault, with the Draguignan family-affairs judge. In a decision of 24 November 2003, a hearing for an attempt at reconciliation was scheduled for 8 June 2004. At that hearing, Mr Washington claimed that the French family-affairs judge should decline jurisdiction in favour of the Family Court of the State of New York. 29. In a decision of 15 June 2004 the judge upheld the objection to jurisdiction. In a judgment of 24 February 2005 the Aix-en-Provence Court of Appeal set aside that decision and held that the French court had jurisdiction to rule on the divorce. 30. On 30 March 2005 the first applicant filed an updated petition for divorce. In a decision of 31 March 2005, a hearing for an attempt at reconciliation was scheduled for 30 June 2005. In connection with that hearing, Mr Washington filed pleadings seeking an order that he be examined before the Family Court of the State of New York, and in the alternative the postponement of the hearing so that he would be able to attend. The proceedings were adjourned until a hearing of 2 August 2005. Mr. Washington failed to appear and did not give reasons for this. The reconciliation hearing was thus held in his absence. 31. In a non-reconciliation decision of 16 August 2005, and after pointing out that a decision on the child's return given in the context of the Hague Convention did not determine the merits of any custody issue (Article 19), the family-affairs judge ruled that parental authority would be exercised jointly by both parents, that the child would habitually reside in France at her mother's house, and that the father would have rights of visiting and staying contact for one half of the school summer holidays every year, and every other year, alternately with the mother, for the whole of the Christmas holidays. The decision states as follows: “The petitioner's claims, in the light of the evidence concerning the living conditions offered to the child, as noted by the judges of the Aix-en-Provence Court of Appeal, do not appear to be contrary to the child's interests. They must therefore be granted as to their principle.” 32. In a judgment of 24 April 2007 the Draguignan tribunal de grande instance granted the parties' divorce and held that the second applicant should live with her mother, with her father being granted a right of contact. 33. The Government indicated that subsequent to the enforcement of the decision concerning the child's return, the French Central Authority had received requests from the first applicant's lawyer for the purpose of transmitting to the US Central Authority a request for Charlotte's return on the basis of the non-reconciliation decision holding that the child should live with her mother. No action had been taken in response to these requests on the ground that Article 3 of the Hague Convention was not applicable as the child's habitual residence had been in the United States at the time of the French decision. Lastly, during the public hearing before the Court, the Government explained that on 24 November 2005 the first applicant had summoned Mr Washington to appear before the Draguignan Criminal Court, for the offence of failing to hand over a child to the person having custody, in breach of the decision of 16 August 2005, and that the court, having found that it was not established that the summons had been served on its addressee, had invited her to serve a new summons for a hearing on 7 September 2007. 4. Custody proceedings in the United States 34. Following the orders of 15 September 2003 and 24 February 2004 (see paragraphs 11 and 17 above), the Family Court of the State of New York made a new order (“order to show cause”) on 11 October 2005 in which the first applicant was summoned to a hearing scheduled for 28 November 2005 for the purpose of submitting the reasons why an order should not be made, upon a petition from Mr Washington, to the effect that her visits to Charlotte would be restricted to the courthouse under the supervision of the child's paternal grandmother and an officer of the court and that she would have to surrender the child's French passport prior to the first visit and refrain from applying for a new one. She was moreover ordered to post with the court a bond in the amount of 50,000 dollars which would be subject to forfeiture in the event she removed the child from the country. 35. On 18 November 2005 the first applicant received a letter from the French Ministry of Foreign Affairs which stated as follows: “In your interview of 14 October 2005 you expressed your fear that you would not be given leave to enter the United States and thus would not be able to visit your daughter Charlotte, since, on the United States immigration questionnaire that you would have to complete, you would be asked expressly if you had committed a wrongful child abduction. The Ministry of Foreign Affairs is not in a position to give you an assurance that the United States authorities would allow you to enter their country. I am able to inform you, however, that a representative of the United States Embassy in France, who was asked about this matter on the telephone, indicated that as you would be coming from a State which is a co-signatory with the United States of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980, you should not be prevented from entering US territory.” 36. On 23 November 2005 the first applicant's representative in the United States requested an adjournment of her court appearance until 19 December 2005 and filed an “affirmation in support of request for adjournment” stating that she had been informed of the court's objection to her contacting her daughter before that appearance. 37. At the hearing of 19 December 2005 representations were heard from the parties. The first applicant requested the court, among other things, to dismiss the father's application and to register the non-reconciliation decision of 16 August 2005 of the Draguignan tribunal de grande instance granting her custody of Charlotte. 38. In a decision of 3 February 2006, delivered on 8 February, the judge of the Family Court of the State of New York granted Mr Washington's application to restrict the mother's right of visitation. The court found first that the State of New York alone had the authority and jurisdiction to rule on issues of custody relating to the child, that it would not relinquish jurisdiction, that no French law or ruling could change the domestic law and that it would not recognise the orders of any other court which purported to exercise jurisdiction which was not in conformity with the applicable laws of New York State and international treaties which governed such issues. As regards the non-reconciliation decision of 16 August 2005 granting custody of Charlotte to the mother, it refused to recognise it as binding on that court. The court found that the father's request was justified by the mother's conduct and by the attitude of the French courts and authorities, which had for many months aided the mother in her appropriate actions. Observing that immediately after the child had returned to the United States a French court had determined that the mother should have custody, the judge was of the opinion that if the child were to return to France the likelihood for the father of having that most recent ruling overturned would be remote. The judge concluded as follows: “Based on the foregoing, this Court will not consider granting the mother unsupervised visitation and will conduct no further hearings on the issues of custody and visitation unless and until all of the following things have taken place: 1. The mother must apply to the appropriate French courts and obtain the following results: a. An order which vacates any orders which purport to grant custody of this child to the mother. b. An order which unequivocally and irrevocably acknowledges that New York alone has exclusive subject matter jurisdiction over the issue of custody of this child so long as the father continues to be a resident of New York State. c. An order registering and recognizing the New York order, granting the father full custody of the subject child, as the only valid order relating to the custody of this child. d. ... 2. ... 3. Before any unsupervised visitation is granted, the mother must post a cash or surety bond in the amount of $25,000.00 ... 4. Any time the mother is exercising any form of visitation with the child, she must surrender her passport to the child's law guardian ... 5. ..., all visitation with the child shall be supervised and shall be confined to the area of Dutchess County, New York, unless prior court approval has been granted. I realize these may seem like harsh conditions and restrictions. However, these conditions and restrictions are born of the extremely inappropriate conduct of the mother and the clear attitude and intentions of the French courts and authorities to favor the mother, ignoring applicable laws and international protocols relating to the issues involved in this case. The mother shall have the right to apply to this court for a relaxation of the conditions outlined above upon notice to this court that the French order purporting to grant her custody of the child has been vacated and the order of this court has been registered and recognized in France as the only valid order ...” 39. The order was followed by the usual indications about the possibility of lodging an appeal before the Appellate Division, Second Department, no later than thirty days after receipt of the order. The first applicant did not exercise her right of appeal. 40. Lastly, there is evidence that on 15 January 2007 the French Central Authority sent a letter to counsel for the first applicant, beginning as follows: “Dear Madam, I have been informed by my counterpart in the United States that Mr Washington does not accept the offer of mediation that was made to him, since he cannot be certain of the mother's intentions, and this perhaps explains why you decided, at the same time as he was approached about a friendly settlement, to reactivate the criminal proceedings, of which I have been informed by the public prosecutor of Aix-en-Provence. The terms of the US judgment being unequivocal, it seems pointless to bring any proceedings in the United States with a view to extending the contact between Charlotte and her mother before securing a change in the French decision concerning parental authority. It is up to your client to lodge an application for that purpose with the family-affairs judge. The French Central Authority is quite prepared to confer once again with the US Central Authority in order to ascertain what assistance could be provided to Ms Maumousseau should she wish to bring proceedings in the United States for an extension of her access rights, as and when such proceedings are justified by new developments. ...” II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND DOMESTIC PRACTICE 1. Domestic law and the case-law of the Court of Cassation 41. Article 388-1 of the French Civil Code provides: “In all proceedings relating to him, a minor capable of discernment may, without prejudice to the provisions as to his intervention or consent, be heard by the court or, when his interests so require, a person appointed by the court for that purpose. A minor shall be granted a hearing if he so requests. If a minor refuses a hearing, the court shall assess the merits of the refusal. He may be heard alone, with a lawyer or with a person of his choosing. Where that choice does not appear to be consonant with the child's interests, the court may appoint another person. The hearing of a minor does not confer on him the status of a party to the proceedings. The court shall ensure that the minor has been informed of his right to be heard and to be assisted by a lawyer.” 42. The Court of Cassation was consistent in its case-law concerning the application of Article 13 of the Hague Convention until the above-cited judgment of 14 June 2005 (see paragraph 27 above). In a judgment of 12 July 1994, the first Civil Division of the Court of Cassation gave the following reasons for its decision: “The harm or intolerable situation, within the meaning of [Article 13 (b) of the Convention of 25 October 1980], results as much from the further change in the removed child's current environment as from the environment that he will discover or rediscover in the State of his habitual residence. Furthermore, after observing, in the light of the expert's report, that Fareed's separation from his mother, taking into account the child's tender age and the circumstances in which he had come to live exclusively with her for over a year, 'would be experienced by the child as the loss of a loved one', the Court of Appeal, exercising its power of discretion, held that for the time being his return to the United States of America would expose him to a grave risk of psychological harm. It therefore justified its decision in accordance with the law.” In a judgment of 22 June 1999 the same Division dismissed an appeal on points of law as follows: “The Court of Appeal, which rightly found, based on its own reasoning and that of the court below, that a grave risk of harm or of an intolerable situation – circumstances that under Article 13 (b) of the Hague Convention justify the retention of children who have been removed – might be entailed by a further change in the children's environment, decided in its discretion that separating a three-year-old child from her mother and a brother and sister from each other would cause an immediate risk of psychological harm, and that the sudden return of the children to Germany would place them in an intolerable situation in view of their tender age.” (Court of Cassation, First Civil Division, 22 June 1999). 2. International law (a) Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (ratified by France and the United States of America) 43 The relevant provisions read as follows: “The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions:” Article 1 “The objects of the present Convention are: (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Article 3 “The removal or the retention of a child is to be considered wrongful where: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Article 7 “Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures: (a) to discover the whereabouts of a child who has been wrongfully removed or retained; (b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; (c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; (d) to exchange, where desirable, information relating to the social background of the child; (e) to provide information of a general character as to the law of their State in connection with the application of the Convention; (f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access; (g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; (h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; (i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” Article 12 “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith ...” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Article 20 “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” Article 21 “An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.” The Hague Convention was adopted on 24 October 1980 by the Fourteenth Session of the Hague Conference on Private International Law (the “Conference”), an intergovernmental organisation, in Plenary Session. In 1982 the Conference produced and published a final Explanatory Report on the Hague Convention to which the Court refers. The report was drafted by Mrs Élisa Pérez-Vera, Reporter to the organisation's First Commission, which had been responsible for preparing the Hague Convention; it is available on the Internet at http://hcch.e-vision.nl/upload/expl28.pdf. Paragraph 34 of the report reads as follows: “... it would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them – those of the child's habitual residence – are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration.” (b) Convention on the Rights of the Child of 20 November 1989 (ratified by France, but not by the United States of America) 44 The relevant provisions of the Convention on the Rights of the Child read as follows: Preamble “... Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ...” Article 3 § 1 “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 11 “1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad. 2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.” 45. In its “General Comment No. 5 (2003)”, on States Parties' obligations to develop general measures of implementation of the 1989 Convention on the Rights of the Child, the Committee on the Rights of the Child, the United Nations body that monitors its implementation, encouraged States Parties to ratify the Hague Convention for the purposes of implementing the above-mentioned Article 11. Article 12 “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” 46. The Committee on the Rights of the Child, in its Concluding Observations of 30 June 2004 concerning France, in the context of the second periodic report submitted by that State (CRC/C/15/Add.240), indicated that it was concerned about “inconsistencies in legislation as well as the fact that in practice, the interpretation of the legislation, and determination of which child is 'capable of discernment', may leave possibilities of denying a child this right or make it subject to the child's own request and may give rise to discrimination” (§§ 21 and 22 of its Observations). In its “General Comment No. 7 (2005)” on implementing child rights in early childhood, the Committee stated that Article 12 of the Convention on the Rights of the Child applied both to younger and to older children, early childhood being defined as the period below the age of eight years. (c) Parliamentary Assembly of the Council of Europe 47. Recommendation 874 (1979) of the Parliamentary Assembly of the Council of Europe on a European Charter on the Rights of the Child states the following as the first of a number of general principles: “a. Children must no longer be considered as parents' property, but must be recognised as individuals with their own rights and needs; ...” THE LAW I. ALLEGED VIOLATION OF ARTICLES 3, 6 § 1 AND 8 OF THE CONVENTION, TAKEN TOGETHER 48. The first applicant complained that Charlotte's return to the United States had been enforced in breach of Article 13 (b) of the Hague Convention and Article 8 of the European Convention on Human Rights, taking the view that the child's separation from her mother and from her environment in France had placed her in an “intolerable situation” in view of her very young age and had been contrary to her “best interests”. She complained about the new case-law of the Court of Cassation and criticised the lack of consideration for Charlotte's separation from her and from the environment in which the child had settled in France. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The first applicant further argued that she had been deprived of her right of access to a court with full jurisdiction, as both the Court of Cassation and the Court of Appeal had accepted that a court hearing a request for a child's return under the Hague Convention had no authority to examine the situation as a whole in order to determine whether the return was in the child's best interests. She relied on Article 8 taken together with Article 6 § 1 of the Convention, of which the relevant part reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...” She further alleged that the police intervention at Charlotte's nursery school on 23 September 2004 had constituted ill-treatment and would significantly affect her daughter psychologically. She relied on Article 8 taken together with Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 49. The Court notes at the outset that the first applicant relied, in conjunction with Article 8, both on Article 6 § 1 of the Convention, complaining in substance that the examination of the child's “best interests” by the domestic courts, stemming from the application of the Hague Convention, had been incomplete, and on Article 3, complaining that the attempt to enforce the child's return had been traumatic for her daughter. The Court, however, will examine the application only under Article 8, being of sole relevance to the present case, as it finds that the complaints are essentially directed against the merits of the decision ordering Charlotte's return to her father in the United States and the conditions of enforcement of that order. As a subsidiary consideration, with regard to the complaint under Article 3, even supposing that this Article is applicable the Court notes that no remedy – such as the filing of a criminal complaint with the competent authority – had been used to complain about the ill-treatment allegedly sustained, whereas under Article 35 § 1 of the Convention it can hear a case only after the exhaustion of domestic remedies (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999‑V) and this complaint cannot therefore succeed in any event. 50 The Court further observes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It notes moreover that no other ground for declaring it inadmissible has been established. It should therefore be declared admissible. B. The merits The parties' submissions (a) The Government 51. The Government, having to reply only to the complaint under Article 8 of the Convention, did not deny that the impugned court decisions ordering the child's return to her father constituted interference with the child's right to respect for her family life. They were of the opinion, however, that this interference fulfilled the conditions of Article 8 § 2. 52. The Government first expressed the view that the impugned measure had been in accordance with the “law”, namely the Hague Convention of 25 October 1980, which satisfied the criteria of foreseeability and accessibility that had emerged from the Court's case-law; on this point they cited the Tiemann v. Germany and France decision of 24 April 2000. They noted that the first applicant was familiar with the provisions of the Hague Convention since she herself had relied on Article 13 (b) in asserting her rights. 53. Secondly, the interference had pursued a legitimate aim, namely the protection of health and morals and the protection of the rights and freedoms of others, and the child's return to the United States had been ordered in the interest of the child's welfare and to put an end to an unlawful situation, not to favour her separation from her mother. The Government pointed out in this connection that the principle laid down in the preamble to the Hague Convention that a child wrongfully removed by its parents should be promptly returned to the State of its habitual residence was based on the premise that the primary victim was the child itself, thus obliging the States Parties to act diligently, in accordance with Articles 7 and 11 of the Hague Convention. The Government also observed that the Court had found against States which had not ensured a child's prompt return, had judged the adequacy of a measure by the swiftness of its implementation, and had further held that in certain cases it was for the competent national authorities to punish the abducting parent, as the passage of time could have irremediable consequences for relations between the child and the parent with whom it did not live; they cited, among other authorities, the Maire v. Portugal judgment of 26 June 2003 and the Ignaccolo-Zenide v. Romania judgment of 25 January 2000. In the present case, by contrast, the Government asserted that the French authorities had made adequate and effective efforts to enforce the Court of Cassation's judgment of 14 June 2005 and to uphold both the child's right to be reunited with her father and the father's right to have his daughter returned to him, in accordance with Article 8 of the Convention as interpreted in the light of the Hague Convention. 54. The Government further argued that the measure had been proportionate to the legitimate aim pursued. They emphasised, by way of preliminary argument, that Article 13 (b) of the Hague Convention was not applicable automatically and that the assessment of the facts constituting the “psychological or physical harm” incurred by the child or the “intolerable situation” in which he or she would be placed in the event of his or her return fell within the absolute discretion of the courts hearing the case. They took the view that the child's “best interests” had constantly been taken into account, as could be seen from the wording of the impugned decisions. 55. The Government pointed out that in its judgment of 13 May 2004, which contained lengthy reasoning, the Court of Appeal had first noted that the father's conduct did not constitute harm within the meaning of the above-mentioned Article 13 (b), finding that none of the evidence in the case-file corroborated the mother's claims, and had taken the view that the child's return would not place her in an intolerable psychological situation, adding that “[t]he harm referred to in Article 13 (b) of the Hague Convention [could] not be constituted solely by separation from the parent who acted unlawfully and created the risk”. On this point, the Government contended that no criticism could be laid against a court, as the first applicant had done, for making a restrictive interpretation of the exceptions to the principle of the child's prompt return, nor could it be inferred that this court had refused as a matter of principle to take account, in assessing the alleged risk, of the new situation arising from the child's abduction. They observed that the first applicant's interpretation would amount to rendering the Hague Convention devoid of substance, and it would be contrary to its very purpose if the parent responsible for the wrongful removal could systematically rely on his or her own unlawful action to invoke a risk of serious trauma in the event of the child's return to his or her place of habitual residence. The Government observed that the analysis made by the domestic courts was consistent with the solutions usually adopted by the various States Parties to the Hague Convention, and with the Court's case-law. They then concluded that the Court of Appeal had struck a fair balance between the competing interests, since it had taken into account, first, Charlotte's living conditions in her new environment (her strong attachment to her mother and her good relations with her maternal grandparents and her perfect integration in France), inferring therefrom that she had a strong capacity of adaptation – as had been noted by the Court of Appeal in its 3 December 2004 judgment concerning the child's provisional placement in care ‑; and, secondly, the material, emotional and psychological aspects of the living conditions offered by her father, which were those that she had known for three years (the father's irreproachable conduct, contrary to the unproven allegations of the first applicant, the possibility for him to organise his working hours to look after Charlotte, his circle of family and friends, and the positive material aspects of the conditions in which the child would be received). The Court of Appeal had thus conducted a general examination of the best solution for the child, leading the Court of Cassation to find that it had legally substantiated its decision. 56. Lastly, the Government pointed out that the sole purpose of the return decision had been to put an end to an unlawful situation, that it was not a decision on the merits concerning the child's habitual residence and that it did not therefore entail Charlotte's long-term separation from her mother, because the latter had always had the possibility of filing her claims with the United States court, which had precisely indicated in its order of 8 March 2004 that it retained jurisdiction to reconsider, upon the application of either party, the child's best interests and the directions it had made. (b) The first applicant 57. The first applicant argued that the Government's observations showed that they had admitted that the justification for the return decision lay in the consideration that the abducting parent had to be punished and that a “risk of serious trauma” could not therefore be taken into account in so far as it was the consequence of a wrongful removal. She emphasised that the Court of Appeal had refused, as a matter of principle, to take the child's “best interests” into account, as that would have resulted in the endorsement of an allegedly unlawful action. In finding that “[t]he harm referred to in Article 13 (b) of the Hague Convention [could] not be constituted solely by separation from the parent who acted unlawfully and created the risk”, the domestic courts had thus refused to consider the effect that Charlotte's return would have on her, whilst the Court of Appeal had noted that according to an expert's report “[i]t would ... be harmful for this child if her points of reference were changed and she was placed in a situation where she became separated from her mother and her mother's family”, and the advocate-general at the Court of Cassation had raised the question whether “the Court of Appeal's refusal to deal with the consequences of the risks of separating a girl of three and a half years old from her mother, with whom she had always lived, [was] compatible with the requirements of Article 3 § 1” of the Convention on the Rights of the Child. 2. The Court's assessment (a) Reasons for the impugned order for the child's prompt return 58. The Court observes at the outset that the possibility for Ms Maumousseau and her daughter Charlotte of continuing to live together is a fundamental consideration that clearly falls within the scope of family life within the meaning of Article 8 of the Convention, and that Article is therefore applicable in the present case (see, among many other authorities Maire v. Portugal, no. 48206/99, § 68, ECHR 2003‑VII). 59. Moreover, it cannot be disputed that the French courts' order for the child's return constituted an “interference” in respect of the two applicants, within the meaning of paragraph 2 of that same Article, it being understood that the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition (see, for example, Eskinazi and Chelouche v. Turkey (dec.), no. 14600/05, ECHR 2005‑...). 60. The Court reiterates that the Convention cannot be interpreted in a vacuum and must therefore be applied in accordance with the principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties of 1969, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18; Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001‑II; and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001‑XI). As regards the obligations that Article 8 imposes on the Contracting States with respect to reuniting parents with their children, they must be interpreted in the light of the requirements of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (see Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 51, ECHR 2003‑V, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 95, ECHR 2000‑I) and with those of the Convention on the Rights of the Child of 20 November 1989 (see Maire, cited above, § 72). 61. In the present case, the Court notes that the French courts' decisions ordering the child's return were based on the provisions of the Hague Convention, which was in force in France and was applied with the aim of protecting Charlotte's rights and freedoms, such aim being recognised as legitimate within the meaning of paragraph 2 of Article 8 of the Convention (see, on this point, Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000‑IV). 62. The Court will therefore endeavour to determine whether the interference in question was “necessary in a democratic society” within the meaning of the second paragraph of Article 8 of the Convention, interpreted in the light of the above-mentioned international instruments, the decisive issue being whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – was struck, within the margin of appreciation afforded to States in such matters. In this connection, whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by this Article (see Eskinazi and Chelouche, cited above). 63. The Court first observes that whilst the second applicant's removal to France had not been wrongful, since her father had not opposed it, the failure to return the child to her place of habitual residence, where Mr Washington had custody of his daughter jointly with his wife, was wrongful within the meaning of Article 3 of the Hague Convention. It further notes that the Aix-en-Provence Court of Appeal and the Court of Cassation took the view, first and foremost, that the child's return to the United States of America would not expose her to “physical or psychological harm”, within the meaning of Article 13 (b) of the Hague Convention. On this specific point the Court of Appeal noted the total lack of evidence in support of the first applicant's claims but, by contrast, regarded as conclusive the numerous attestations in favour of Charlotte's father and, moreover, the results of a test showing the absence of any trace of drugs. As regards the “intolerable situation” in which Charlotte was allegedly going to be placed as a result of separation from her mother, the Court of Appeal carefully analysed the child's living conditions in France, in both emotional and material terms, and those offered by her father in the United States. In that connection the court pointed out the second applicant's strong capacity of adaptation and indicated that the harm referred to in Article 13 (b) of the Hague Convention could not be constituted solely by separation from the parent who was responsible for the wrongful removal or retention. The Court of Cassation, for its part, departed from precedent and endorsed that new approach. 64. The first applicant complained that the interpretation by the domestic courts of the exception under Article 13 (b) of the Hague Convention had been too restrictive and that her daughter's “best interests” had not been considered completely, in the light of Article 13 (b) of the Hague Convention, Article 8 of the Convention and Article 3 § 1 of the New York Convention. In her view, the consequences for her daughter of being separated from her environment in France and from her mother had not been taken into account by the domestic courts, whilst their decision placed Charlotte in an “intolerable situation” in view of her tender age, in particular, and because her mother could not return to the United States. She added that the extent of the judicial scrutiny in respect of that matter had been reduced inordinately because the court adjudicating on the application for the child's return under the Hague Convention had refrained from assessing the situation as a whole in deciding whether or not such return was in the child's “best interests”. At the public hearing before the Court, the first applicant lastly claimed that Article 13 (b) of the Hague Convention should be regarded as covering all types of harm, including the consequences of the child's separation, to ensure the harmonious application of the above-mentioned international conventions. 65. The Court would emphasise the specific nature of the present case, arising firstly from its human dimension and particular legal context, and secondly from the questions of principle that it raises, relating mainly to the compatibility of the obligations imposed on the respondent State in the light of the various international legal instruments that are applicable. 66. The Court notes that since the adoption of the New York Convention on the Rights of the Child of 20 November 1989, “the best interests of the child” in all matters concerning it, within the meaning of the New York Convention, have been paramount in child protection issues, with a view to the child's development in its family environment, as the family constitutes “the fundamental group of society and the natural environment for the [child's] growth and well-being”, to quote the preamble. As the Court has previously found, this primary consideration may comprise a number of aspects. 67. In matters of child custody, for example, the reason for considering the “child's best interests” may be twofold: firstly, to guarantee that the child develops in a sound environment and that a parent cannot take measures that would harm its health and development; secondly, to maintain its ties with its family, except in cases where the family has proved particularly unfit, since severing those ties means cutting a child off from its roots (see Gnahoré v. France, no. 40031/98, ECHR 2000‑IX). 68. The Court is of the view that the concept of the child's “best interests” is also a primary consideration in the context of the procedures provided for in the Hague Convention. Inherent in that concept is the right for a minor not to be removed from one of his or her parents and retained by the other, that is to say by a parent who considers, rightly or wrongly, that he or she has equal or greater rights in respect of the minor. In this connection it is appropriate to refer to Recommendation No. 874 (1979) of the Council of Europe's Parliamentary Assembly which states: “Children must no longer be considered as parents' property, but must be recognised as individuals with their own rights and needs”. The Court further observes that in the Preamble to the Hague Convention the Contracting Parties express their conviction that “the interests of children are of paramount importance in matters relating to their custody” and stress their desire to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access”. These stipulations must be regarded as constituting the object and purpose, within the meaning of Article 31 § 1 of the Vienna Convention on the Law of Treaties, of the Hague Convention (see, to that effect, Paradis and Others v. Germany (dec.), no. 4783/03, 15 May 2003). 69. The Court is entirely in agreement with the philosophy underlying the Hague Convention. Inspired by a desire to protect children, regarded as the first victims of the trauma caused by their removal or retention, that instrument seeks to deter the proliferation of international child abductions. It is therefore a matter, once the conditions for the application of the Hague Convention have been met, of restoring as soon as possible the status quo ante in order to avoid the legal consolidation of de facto situations that were brought about wrongfully, and of leaving the issues of custody and parental authority to be determined by the courts that have jurisdiction in the place of the child's habitual residence, in accordance with Article 19 of the Hague Convention (see, to that effect, among other authorities, Eskinazi and Chelouche, cited above). 70. The Court cannot, however, agree with the reasoning of the first applicant when she asserts that a court dealing with a request for the return of a child under the Hague Convention conducts an incomplete assessment of the child's situation and therefore of its “best interests”. 71. The Court fails to see how the interpretation by the domestic courts of Article 13 (b) of the Hague Convention would necessarily be incompatible with the notion of the “child's best interests” embodied in the New York Convention. It considers, on this point, that it would be desirable if this notion of “best interests” could always be interpreted in a consistent manner, regardless of the international convention invoked. It notes, moreover, that the New York Convention obliges States Parties to take measures to combat the illicit transfer and non-return of children abroad and that these States are urged to enter into bilateral or multilateral agreements or accede to existing agreements – of which the Hague Convention is one (see paragraphs 43 and 44 above). 72. The Court observes that there is no automatic or mechanical application of a child's return once the Hague Convention has been invoked, as indicated by the recognition in that instrument of a number of exceptions to the member States' obligation to return the child (see in particular Articles 12, 13 and 20), based on objective considerations concerning the actual person of the child and its environment, thus showing that it is for the court hearing the case to adopt an in concreto approach to each case. 73. In the Court's view, if the first applicant's arguments were to be accepted, both the substance and primary purpose of the Hague Convention, an international legal instrument in the light of which the Court applies Article 8 of the Convention, would be rendered meaningless, thus implying that the above-mentioned exceptions must be interpreted strictly (see, to this effect, the Explanatory Report on the Hague Convention, § 34, quoted in paragraph 43 above). The aim is indeed to prevent the abducting parent from succeeding in obtaining legal recognition, by the passage of time, of a de facto situation that he or she unilaterally created. 74. In the present case, as the Court has already observed, the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining, as requested of them, what the best solution would be for Charlotte in the context of a request for her return to the United States of America, her country of birth (see, to this effect, Gettliffe and Grant v. France (dec.), no. 23547/06, 24 October 2006). In doing so, the courts did not identify any risk that Charlotte would be exposed to physical or psychological harm in the event of her return, and they stressed that the mother retained the possibility, contrary to her allegation, of accompanying her daughter to the United States in order to assert her custody and access rights in that country. On that point, the Court moreover takes the view that this is an essential element, as the first applicant had free access to US territory and had the possibility of bringing her case before the competent US courts at the appropriate time (see paragraphs 100-104 below). 75. The Court is therefore satisfied that Charlotte's “best interests”, which lay in her prompt return to her habitual environment, were taken into account by the domestic courts when they examined the request for her return under the Hague Convention. 76. The Court further notes that there is nothing to suggest that the decision-making process which led the domestic courts to order the impugned measure had not been fair or had not allowed the applicants to present their case fully (see Tiemann, cited above). 77. As regards the argument that the domestic courts had not taken testimony from the child, even though it had not been raised before the domestic courts, it was raised during the public hearing before the Court and thus calls for certain considerations on its part. 78. Admittedly, the Court notes that the Committee on the Rights of the Child, in its Concluding Observations of 30 June 2004 concerning France, in the context of the second periodic report submitted by that State, expressed its concern about the application of Article 12 of the New York Convention (see paragraph 46 above); similarly, it notes that in its “General Comment No. 7” of 2005 the Committee stated that Article 12 applied both to younger and to older children, early childhood being defined as the period below the age of eight (ibid.). 79. However, the Court is of the opinion that the failure to take testimony from Charlotte in the present case did not entail a violation of Article 8 of the Convention. It observes in this connection that in the case of Eskinazi and Chelouche (cited above) it stressed that “it [was] not its task to substitute its own assessment of the facts and the evidence for that of the Turkish courts regarding the adequacy of such a delicate process or to review the interpretation and application of the provisions of international conventions (in the present case Article 13 of the Hague Convention and Article 12 § 1 of the Convention on the Rights of the Child), other than in cases of an arbitrary decision”. 80. Nothing to this effect has been adduced by the first applicant or can be established from the material in the case file. The Court further notes that the child was interviewed on several occasions by various experts, her responses being reproduced in their reports and then referred to in the impugned judicial decisions. The Court finds, in any event, that in view of the child's age, the taking of testimony from her could have been regarded in the present case as non-decisive. 81. In these circumstances the Court takes the view that, having regard to the margin of appreciation enjoyed by the authorities in such matters, the return decision was based on relevant and sufficient grounds for the purposes of paragraph 2 of Article 8, considered in the light of Article 13 (b) of the Hague Convention and Article 3 § 1 of the Convention on the Rights of the Child, and that it was proportionate to the legitimate aim pursued. (b) Conditions of enforcement of the child's return 82. The first applicant further complained about the manner in which the police had intervened in Charlotte's school for the purposes of enforcing the judgment of 13 May 2004. 1. Principles established in the Court's case-law 83. The Court points out that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective “respect” for family life. As to the State's obligation to take positive measures, Article 8 includes the right of a parent – in this case the father – to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action (see, for example, Ignaccolo-Zenide, cited above, § 94). However, this obligation is not absolute, since the reunion of a parent with his or her child may not be able to take place immediately and may require preparation. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always important ingredients. In addition, when difficulties appear, mainly as a result of a refusal by the parent with whom the child lives to comply with the decision ordering the child's prompt return, the appropriate authorities should then impose adequate sanctions in respect of this lack of cooperation and, whilst coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of manifestly unlawful behaviour by the parent with whom the child lives (see Maire, cited above, § 76). Lastly, in this kind of case, the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to the award of parental responsibility, including the enforcement of the final decision, require urgent handling as the passage of time can have irremediable consequences for relations between the child and the parent with whom it does not live. The Hague Convention recognises this fact because it provides for a range of measures to ensure the prompt return of children removed to or wrongfully retained in any Contracting State. Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously to ensure the return of children and any failure to act for more than six weeks may give rise to a request for explanations (see Maire, cited above, § 74). 2. Application of the above principles 84. In the present case, the Court considers that the obligation of swiftness in the implementation of the child's return, together with the mother's obstructive conduct, are factors that the domestic authorities had to take into account when deciding on concrete measures to ensure the effectiveness of the French judicial decision. The Court notes that Charlotte, following the delivery of the Court of Appeal's judgment of 13 May 2004, became untraceable, as her mother had hidden her whereabouts from the authorities to evade execution of the decision (see paragraph 20 above), thus showing the first applicant's total lack of cooperation with the French authorities. The circumstances of the police intervention at Charlotte's nursery school on 23 September 2004, albeit somewhat unclear, for the purposes of enforcing the judgment of 13 May 2004, were therefore the result of the first applicant's constant refusal to hand Charlotte over to her father voluntarily, despite a court order which had been enforceable for more than six months. 85. Although police intervention is not the most appropriate way of dealing with such situations and may have traumatic effects, the Court notes that it took place under the authority and in the presence of the public prosecutor of Draguignan, a professional legal officer with a high level of decision-making responsibility under whose orders the four accompanying police officers were placed. Furthermore, faced with the resistance of the people who had taken the applicants' side in the dispute, the authorities had not persisted in their attempt to take the child away. The Court therefore takes the view that the use of coercive measures cannot by itself entail a violation of Article 8 of the Convention. 86 Consequently, there has been no breach of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 87. Relying on Article 6 § 1 of the Convention, the first applicant further argued that the French State was responsible for a violation of her right to an effective remedy, as a result of the impossibility for her to assert her custody and access rights effectively before the courts in the United States. She claimed that, in ordering her daughter's return to that country, the French authorities had not made sure in concreto that her rights would be preserved and, in particular, had not made the return subject to guarantees that she would have access to those courts. The first applicant explained that she had nevertheless pointed out that, in view of the US decision concerning the father's right of custody, it was to be feared that she would no longer be free to travel to and from that country, which was entitled to deny entry to anyone who had prevented a US citizen from exercising custody rights. She could not therefore be certain that she would be able to present her case effectively before the US courts or even to enter the country. Even if she did obtain leave to enter, she alleged that she would not be able to see her daughter in view of the order of the New York State Family Court, which had decided that her visits could only take place in the “courthouse” and that she would have to deposit with the court 50,000 dollars, which was a considerable sum. In addition, she claimed that she had recently been required to undertake not to take any steps to contact her daughter in the United States, including by telephone, in return for the possibility that she might then be given of presenting her case before a US court. A. Admissibility 88 The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that no other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B. The merits 1. The parties' submissions (a) The Government 89. The Government first indicated that under the Hague Convention (Article 16) the French courts were not entitled to examine the merits of the dispute over the right of custody, as that fell within the jurisdiction of the US court in the place of the child's habitual residence. They pointed out that the Hague Convention was not meant to limit the jurisdiction of the court hearing the request for the child's return or to restrict its obligation to consider all the elements of the dispute, but sought to prevent the abducting parent from being tempted to submit the question of custody rights to the court that he or she imagined would be the most favourable to his or her claims. 90. They accordingly took the view that Article 6 of the Convention had not been breached as a result of the New York Family Court's jurisdiction over questions of custody and access, since the first applicant had been able to go to the United States and assert her rights in adversarial proceedings. 91. They observed, firstly, that the first applicant was not entitled to draw the conclusion, based on the fact that she had deliberately removed herself from the jurisdiction of the US courts, that she had been deprived of access to a court having jurisdiction to deal with all aspects of the case. On the date when the impugned judgment was delivered, she still had the possibility of submitting a request to a court in the United States and the responsibility of the French State could not be engaged since it was bound by the prescribed procedure in such circumstances. The Government noted that the first applicant had, moreover, been lawfully summoned by the judge of the New York court, which, in its order of 8 March 2004, had reserved the right to review its directions at the request of either party. They took the view that it was the mother's conduct and the difficulties encountered by the father which had justified the major restrictions imposed by this judge on the mother's access rights in his order of 8 February 2006, and not the normal enforcement of the return procedure; they noted that this order nevertheless provided that the mother had the right to apply to the court for a relaxation of the conditions thus laid down. 92. Secondly, the Government took the view that the alleged risk that the first applicant would not be able to go to the United States was purely hypothetical, as attested by the analysis of the Court of Appeal's judgment of 13 May 2004. They moreover observed that prior to 2006 the applicant had not expressed the slightest intention of returning to that country, whereas she could have sought the “reactivation” of her Green Card or used other solutions for travel to the United States, in particular the possibility of applying for a “Returning Resident's Immigrant Visa”. Cooperation between the Central Authorities, instituted by the Hague Convention itself, also ensured that a parent, in the event of a voluntary initiative, could return with no difficulty to the child's country of residence. In addition, the Government produced an official record dated 9 July 2004 showing that the first applicant had made representations to the prosecutor following the judgment of 13 May 2004 ordering Charlotte's return. It can be seen from this document, among other things, that in response to the mother's fears concerning the possibility of her arrest if she travelled to the United States, the public prosecutor notified her of a letter of 28 June 2004 from the New York Family Court certifying that no warrant had been issued for her arrest, and of a letter dated 2 July 2004 from the French Bureau of Consular Affairs referring to the legislation that applied in the United States to the right of abode of foreigners and explaining the various options open to her if she wished to reside there. Lastly, the Government observed that these fears had been shown by the facts of the case to be unfounded, because she had appeared before the judge hearing the case prior to the delivery of his order of 8 February 2006. The Government thus concluded that, in order to engage France's responsibility in this respect, the first applicant would have had to have shown that she had attempted to enter the United States but had been prevented from doing so. (b) The first applicant 93. The first applicant took the view that, before ordering her daughter's return to America, the French authorities should have made sure, in concreto, that she would be able to present her case before the United States courts. She disputed the Government's assertion that she had removed herself from the jurisdiction of the US courts, because she had, in particular, appeared at the hearing before the Family Court which had made the order of 8 February 2006. 94. She argued that the prerequisites laid down by the judge, in his order, for any examination of her right of access – the vacating of any orders which granted her custody and the recognition of the US order granting the father custody – had proved impossible to fulfil in terms of French statutory procedure, since no domestic remedy enabled a party to satisfy the demands of a foreign State which sought to obtain the annulment of a French decision that was an integral part of the French legal order. She further observed that “nullity of a judgment [could] be sought only by using the statutory remedies”, as provided in Article 460 of the New Code of Civil Procedure – namely appeal to a superior court, an application by a party or third party for a judgment to be set aside, an application to re-open civil proceedings and an appeal on points of law – and that these remedies were available only under certain precise conditions – not fulfilled here – relating to issues of time or disregard for legal rules, or possibly to the fraudulent evasion of statutory provisions. She added that the existence of such a remedy would imply that the French court itself was entitled to interfere with the manifestation of an attribute of French sovereignty, namely to do justice when a French national was concerned. Having been aware of the risk of a violation of her right of access to a court, even before it had taken place, the French authorities had been guilty of an indirect violation of Article 6 of the Convention. 2. The Court's assessment 95. The Court first observes that the dispute relating to the merits of the custody and access rights is now a matter for the competent judicial authorities of the United States of America, where Charlotte had her habitual residence. It is not therefore the Court's task to address the determination of those rights because that country is not a party to the Convention and, furthermore, the application was lodged against France. 96. The Court reiterates, however, that where the courts of a State party to the Convention are required to enforce a judicial decision of the courts of a country that is not a party, the former must duly satisfy themselves that the proceedings before the latter fulfilled the guarantees of Article 6 of the Convention, such a review being especially necessary where the implications are of capital importance for the parties (see Pellegrini v. Italy, no. 30882/96, § 40, ECHR 2001‑VIII). 97. In the present case, even supposing that the applicants' situation is comparable to that of Mrs Pellegrini, who was complaining about a declaration by the Italian courts that a judgment of the Vatican courts was enforceable, the Court notes that the first applicant did not raise a complaint of that nature before the domestic courts or in its own proceedings, on the grounds, firstly, that the proceedings before the competent authorities in the United States had been unfair and, secondly, that the French courts had failed in their duty to ensure, before ordering the child's return, that the first applicant had had a fair hearing in that country (see, mutatis mutandis, Eskinazi and Chelouche, cited above). 98. In any event, the Court, having regard to the material in the case file, has no evidence to suggest that the impugned foreign decisions – the New York State Family Court's orders of 15 September 2003 and 8 March 2004 – were given following proceedings that did not afford the essential guarantees of Article 6 of the Convention (contrast Pellegrini, cited above). 99. Moreover, the Court takes the view that the French authorities were obliged to assist with Charlotte's return to the United States, having regard to the object and purpose of the Hague Convention, unless any objective material had led them to believe that the child and, if appropriate, the mother, would be the victims of a “flagrant denial of justice” in the United States (see, mutatis mutandis, Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 88, ECHR 2005‑I; Einhorn v. France (dec.), no. 71555/01, ECHR 2001‑XI; Drozd and Janousek v. France and Spain, 26 June 1992, § 110, Series A no. 240; Soering v. the United Kingdom, 7 July 1989, § 113, Series A no. 161; and in particular Eskinazi and Chelouche, cited above). The “denial of justice” being prohibited by international law (see Golder v. the United Kingdom, cited above, § 35), France had a duty to ensure that this principle was respected with regard to its reciprocal commitments with the United States. In these conditions, the Court is required to examine the circumstances of which the French authorities had or ought to have had knowledge at the time when Charlotte's return was requested, ordered and then enforced. 100. The Court observes first of all that the first applicant's allegation that it might be impossible for her to enter the United States in order to present her case was purely hypothetical, as was found by the Aix-en-Provence Court of Appeal in its judgment of 13 May 2004, which contained lengthy reasoning on this point, and as stated by the Government in their observations, which were not challenged by the first applicant; moreover, the Court notes that the presumption of such a risk has been rebutted by the facts of the case and her fear was thus unfounded. 101. The Court further notes that the first applicant was free to bring her case before the competent US court, and had indeed been expressly invited to do so. Even though she had been lawfully summoned to the hearing of 14 November 2003 and that of 8 March 2004, she did not appear before the New York court, which reserved the right, however, in its order of 8 March 2004, to review its decision on the custody of Charlotte at the request of either party. As a result, at the time when Charlotte's return was ordered and then enforced, or on the date when the Court of Cassation dismissed the first applicant's appeal, the French courts had no material in their possession to suggest that the child or its mother might be the victims of a “flagrant denial of justice” (see, to the same effect, Eskinazi and Chelouche, cited above). 102. However, whilst the first applicant certainly had access to the United States, she observed that a problem was likely to arise as regards her effective access to the competent US court, having regard to the unambiguous terms of the New York Family Court's order of 8 February 2006 in which the judge refused to examine her claims to custody and access rights without the prior fulfilment of certain conditions. 103. It therefore remains for the Court to analyse the factual circumstances subsequent to Charlotte's return in order to determine whether the responsibility of France may be engaged. This analysis is all the more necessary as the two parties referred to the order of 8 February 2006 but drew different conclusions from it. The Court takes the view that the possible responsibility of France, which may be engaged irrespective of the national authority to which the breach of the Convention in the domestic system is imputable (see, mutatis mutandis, Assanidze v. Georgia [GC], no. 71503/01, § 146, ECHR 2004‑II, and Lingens v. Austria, 8 July 1986, § 46, Series A no. 103), may be established, in the present case, in respect of acts or omissions subsequent to the child's return, only through an administrative authority – to be precise, at the level of the Central Authority as provided for in the Hague Convention – and no longer at the level of a judicial authority. 104. That being so, the Court notes that the first applicant, who benefited from the effective assistance of a lawyer in the United States, did not appeal against the order of 8 February 2006 and did not make any request under Article 21 of the Hague Convention (paragraphs 39 and 43 above). It observes that the French Central Authority has always remained alert to the applicants' situation, in accordance with its obligations under the Hague Convention, an instrument that particularly relies on cooperation between Central Authorities in order to fulfil the objectives set out in its preamble and first Article. The Court takes note in this connection of the content of the French Central Authority's letter of 15 January 2007, from which it can be seen that a mediation attempt had been proposed, admittedly in vain, and that it was prepared to confer once again with its US counterpart in favour of the first applicant. The Court takes note of the declarations that were made to this effect by the Government during the public hearing before it. 105 The Court, for all these reasons, finds that there has been no violation of Article 6 § 1 of the Convention. FOR THESE REASONS, THE COURT 1. Declares unanimously that the application is admissible; 2. Holds by five votes to two that there has been no violation of Article 8 of the Convention; 3. Holds unanimously that there has been no violation of Article 6 § 1 of the Convention. Done in French, and notified in writing on 6 December 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaBoštjan M. ZupančičRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Zupančič, joined by Judge Gyulumyan, is annexed to this judgment. B.M.ZS.Q. DISSENTING OPINION OF JUDGE ZUPANČIČ, JOINED BY JUDGE GYULUMYAN With regret, I feel compelled to file a dissenting opinion in this case because I disagree both with the position of the French Court of Cassation and with the majority's opinion. To go immediately into medias res, I will refer to paragraph 69, third sentence, where the majority mention that the intent of the Hague Convention is simply to re-establish the status quo ante, in order to prevent the legal consolidation of a factual situation which has been illicit from the very beginning. In private law we, indeed, adhere to the formula quod ab initio vitiosum est, tractu tempore convalesere non potest. The emphasis in the above-mentioned third sentence is clearly on the qualifier “as fast as possible” (in French: au plus vite). In child psychology it is well known that development takes place in the first six years and that, therefore, what happens in that period of life is determinative of much of the person's adult personality. Because of this crucial period in a child's life, it may well be true that what would have been good for the child yesterday is no longer going to be good for the child tomorrow. The passage of time, in that period of life, is constitutive of personality; the days, weeks, months and years which pass create new “restore points” in the future adult's personality. The passage of time, in other words, is not simply the passage of time; one may well speak of the fundamental programming of personality. The above-mentioned private law maxim, according to which something that has been corrupt from the beginning is incapable of convalescing, should not apply in child custody matters. The events, among them childhood traumas, create situations in a tender child's psychology which will completely pervade its new development. It is for that reason that I consider the third sentence in the majority's paragraph 69 as establishing the crucial perspective on the facts of this case. The mother, who has wrongfully retained the child, admittedly, has illegally created that situation. The situation lasted for 19 months, during which the child was with her in France rather than in the State of New York. Nevertheless, this situation cannot be assessed from a formalistic point of view postulating, for example, that the initial illicit detainment should be seen as something which will contaminate the legal, moral, and above all psychological position of the mother vis-à-vis the child, the father and society at large. It would be inhuman, in any event, to maintain that the mother, who has always taken care of her little girl, would be to blame because she wants to retain the child – despite the opposition of the father and the two legal processes that the father's lawyers have set in motion. Moreover, there were reasons justifying the mother's wish to separate from the father. We will deal with these in the latter part of this dissenting opinion. One cannot over-emphasise the fact that what has happened in this particular case is simply against the best interests of the child. The over-reaching criterion of The Hague and New York Conventions – a criterion which ultimately supersedes all other determinative criteria – is precisely and always the “best interests of the child”. It follows logically that it is for each legal organ, including the court of last resort, to keep all other facts of the case in the perspective of its ultimate factual appreciation of what is in the best interest of the child. On the face of this case, it is impossible to maintain that it would be in any way advantageous for the four-year-old Charlotte Washington to be torn from the hands of her mother by force and transported back to the State of New York into the hands of her father with whom she has not been in any meaningful contact for 19 months. No amount of legalistic acrobatics can overshadow this simple fact. The “best interests of the child” is the fundamental determinative criterion, a true questio facti, which must be assessed de novo by each court including the court of last resort. Even the European Court of Human Right cannot, in a similar case, escape this need for factual assessment. The perspective in this case is, therefore, what is the prima facie nature of the situation. It is impossible to start from the premise, given precisely the best interests of the child, that the burden should be on the applicants to show that the snatching of the child by the French State from the mother is something which is not legitimate. The simple factual and psychological situation was such that the reverse ought to have been true, that is to say, that the burden ought to have been on the French State to show that it was, despite the passage of time, legitimate to snatch the child by crude police force, put her on an aeroplane and send her to the State of New York. Here we come back to the third sentence in the majority's paragraph 69 which does admit that the passage of time is essential. It follows logically that the position of the majority is contradictio in adiecto in relation to the precise extent to which its own perspective, as well as the perspectives of the Hague and New York Conventions, do coincide with the criterion “as soon as possible” (au plus vite). The majority then attempt to circumambulate the contradiction problem in paragraph 71: “The Court fails to see how the interpretation by the domestic courts of Article 13 (b) of the Hague Convention would necessarily be incompatible with the notion of the 'child's best interests' embodied in the New York Convention”. (emphasis added) Clearly, the logical misstep derives from the use of the word “necessarily”. The Hague Convention's provision 13 (b), which states: Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: ... (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” is not “necessarily” incompatible with the best interests of the child – provided that the restitutio in integrum takes place in a matter of weeks (not months or years!) after the event. Another logical mistake is made by the majority in paragraph 73, where we read that, according to the Court, to accept the arguments of the mother would undermine the Hague Convention's first objective, which is, according to the majority, to impede the retaining parent from legitimising a unilaterally created situation by the “mere” passage of time which, naturally, plays into his or her hands: “73. In the Court's view, if the first applicant's arguments were to be accepted, both the substance and primary purpose of the Hague Convention, an international legal instrument in the light of which the Court applies Article 8 of the Convention, would be rendered meaningless, thus implying that the above-mentioned exceptions must be interpreted strictly (see, to this effect, the Explanatory Report on the Hague Convention, § 34, quoted in paragraph 43 above). The aim is indeed to prevent the abducting parent from succeeding in obtaining legal recognition, by the passage of time, of a de facto situation that he or she unilaterally created.” What the majority misunderstand here is evidently that the passage of time, whether licit or illicit, is determinative of the best interests of the child. There are plenty of instances of this in the Court's own inconsistent case-law, where decisions have been made to favour the retaining mother or to favour the foster parents after a certain period of time –, for the obvious reason that the child at a tender age who has been in a certain domestic setting in which he or she feels secure would be traumatised if he or she were to be displaced. This is precisely what Article 13 (b) of the Hague Convention hints at. What counts, in other words, is the well-being of the child in the setting to which the child has not only become accustomed but which has structural influences on the development of his or her personality. To uproot the child in order to vindicate the abstract juridical goals such as announced in the above-quoted paragraphs of the majority, goes against most basic human good sense. In short, one need not be a child psychologist or paedopsychiatrist to understand that a child who has been with her mother all her life, once she has laid down her roots in the stable setting of a small French village, will be traumatised if those roots are cut and the child forcibly sent to the State of New York. The crucial paragraphs of the majority's opinion, however, demonstrate the same illogicality as the “Court of Cassation's departure from precedent”. In both instances the abstract general prevention has prevailed over the best interests of the child. I asked the pertinent question during the public hearing and I received the answer that there had been no political pressure in order for this to happen. I hope this is true. It is nevertheless difficult to understand how the Court of Cassation could suddenly have begun to prefer the general preventive effect over the best interests of the child. Be that as it may, the inherent logic of the situation is similar to that in Ignaccolo-Zenide v. Romania and in other similar cases, in which the Court has taken inconsistent positions sometimes approving the best interest of the child and sometimes insisting that the child ought to have been snatched from the parent in question (Nuutinen v. Finland). Given these inconsistencies, it is clear that the Grand Chamber of this Court should rule on the following question: In situations where the passage of time has created the psychological constellation in which the child's best interest is no longer to be snatched and returned to the complaining parent, the best interests of the child – according to the Hague and New York Conventions – should prevail. Should the best interests of the child be subordinate to a strict formalistic logic given the illegal nature of the initial retention of the child? Clearly, this question goes to the heart of both Conventions as well as to our own interpretation of Article 8 of the European Convention on Human Rights. According to Article 43 of the European Convention on Human Rights, the request for referral to the Grand Chamber must be accepted “if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance”. Even if the case-law produced by the Chambers of the Court were completely consistent, which it is not, the question is of such general importance that it calls for the Grand Chamber's reassessment. The Chamber had in fact wished to have the case heard by the Grand Chamber under Article 30 § 1, because it considered that the case raised a serious problem affecting the interpretation of the Convention. This proves that the Chamber itself, prior to the impediment set forth by the French Government, had considered that it would be necessary for the Grand Chamber to rule on a serious question affecting the interpretation of the Convention. Given that, under Article 30, the parties retain their right to object, a question might be raised as to whether this objection is not in itself incompatible with the purpose and intent of Article 30. In this connection it is clear that individual parties to a dispute ought not to have a determinative power to influence who, the Chamber or the Grand Chamber, will rule on an important question concerning the interpretation of the Convention. The only way to make Article 30 in fine compatible with the rest of the norm in question is to postulate the possibility that subsequent to the Chamber's judgment there should be a request for referral to the Grand Chamber by one or both of the parties under Article 43 § 1. In a very real sense, therefore, paragraph 2 of Article 43 then binds the panel of five judges to accept this case for Grand Chamber proceedings, as this would have happened under Article 30 were it not for the objection of the French government. The intent of Article 30 in fine is that the Parties retain the possibility that the case as such, without any broad implications for the stare decisis, may first be adjudicated by the Chamber. The procedure before the Chamber clearly functions here as an ante-chamber to the Grand Chamber. In paragraph 84 the majority also emphasise the mother's total lack of cooperation, which in turn was supposed to justify the forceful intervention (snatching) by the police in Charlotte's kindergarten. An important aspect of this case derives from the cruel and draconian reactions of the Dutchess County Family Court in the State of New York. There the first instance judge Mr Damian J. Amodeo reacted by immediately depriving the French mother of her custody, which had initially been joint custody, and in fact putting her under suspicion of having kidnapped the child. Such kidnapping of course is a crime in the State of New York[1] and would make the mother subject to arrest in the United States at the very port of entry, for example at JFK airport. If the mother wished to contest the decision of the local American judge, if she wanted to appear herself before the Dutchess County Family Court, she would at the very least risk visa refusal and possibly arrest. If she were arrested she would risk imprisonment. The arrest on the probable cause that she had committed a Class E Felony would be wholly within the discretion of the local police. Moreover, to blame the mother for not having appeared in the Dutchess County Family Court in order to litigate the issue as to whether Charlotte would leave for the US from France is absurd and points to the revanchist attitude of the local American court. The legal reaction of this family judge does not inspire respect; it is an arrogant over-reaction which was later manifest in the draconian conditions which the same judge imposed in case the mother should wish to see the child. To lay down the conditions requiring a 25,000 USD deposit and the deposit of the passport, for the opportunity to see the child in the court's building for a period of half an hour in the presence of a policeman, – in the language of the American Supreme Court Justice Frankfurter – shocks the conscience. Such conditions are completely discriminatory, and this is easy to prove given that such conditions would never have been imposed on a United States citizen. It is difficult to see how the French Court of Cassation could have overlooked the vindictive nature of the over-reaction of the local judge. This is all the more difficult to understand given that there were suspicions about the father's having inflicted domestic violence for which the local police had to be alerted and called in, as well as suspicions concerning drug abuse by him. It further borders on the absurd to place faith in the father's statement that during his absence for work in the State of New York the child would be taken care of by an unemployed nurse in the apartment building where the father lives. Family law procedure is not a criminal procedure and therefore suspicions concerning the father's past behaviour can neither be subject to presumption of innocence nor are they to be litigated as if the burden of proof ought to be on the accusing mother. The undisputed fact that the police had been called in by the neighbours because of the reasonable suspicion of domestic violence inflicted by the father should have cast an ominous shadow over the father's appropriateness to assume complete custody of the child. The Dutchess County Family Court judge ought to have weighed the evidence and refrained from his radical reaction based on nothing more but the ex-parte submitted “evidence” of the father. It is then doubly absurd for the French legal system to react complacently in a situation in which everything spoke for the mother except the “general preventive effects” such as alluded to by the majority in paragraph 73. [1] New York Penal Law, Section 135.50 Custodial interference in the first degree. A person is guilty of custodial interference in the first degree when he commits the crime of custodial interference in the second degree: 1. With intent to permanently remove the victim from this state, he removes such person from the state […] Section 60.12 Authorized dispositions; alternative indeterminate sentence of imprisonment; domestic violence cases […] 2. The maximum term of an indeterminate sentence imposed pursuant to subdivision one of this section must be fixed by the court as follows: (d) For a class E felony, the term must be at least three years and must not exceed four years.

THE 28TH DAY OF NOVEMBER, 1997 Present Honble Mr. Justice S.B. Majmudar Honble Mr. Justice K. Venkataswami B.Sathe, D.N. Hungod, Advs. for the appellant N. Mishra, Adv. for M s. J.B.D. Co., Advs. for the Respondents. O R D E R The following Judgment of the Court was delivered Leave granted. We have heard learned companynsel for the parties. The short question is whether an appeal would lie before a Division bench of the High Court against an order of the learned Single Judge rendered by him in proceedings under sec. 6 of the Specific Relief Act, 1960 hereinafter refer to as the act . Learned Single Judge passed an order dated 15.11.1994 in Suit No. 411/93 decreeing the suit in terms thereof. When an appeal was carried to the Division Bench of the High Court against the said order, it was companytended on behalf of the respondents that the appeal was number maintainable in view of sub-sec. 3 of sec. 6 of the Act. The said provision certainly bars any appeal or revision against any order passed by the companyrt under sec. 6 of the Act. To that extent the decision of the Division Bench cannot be found fault with. However, one companytention canvassed by learned companynsel for the appellant requires closer scrutiny. he submitted that even if an appeal would number lie under sub-sec. 3 of sec. 6 of the act by itself against any order passed by the companyrt under sec. 6 of the Act, this was an order passed by learned Single Judge of the High Court exercising original jurisdiction. Therefore, under clause 15 of the Letters Patent which is a charter under which the High Court of Bombay functioned, the said provision for appeal would number have been whittled down by the statutory provisions of sec. 6 3 of the Act. Clause 15 of the Letters Patent is extracted hereunder- 15, Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction, And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, Fort William in Bengal from the judgment number being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and number being an order made in the exercise of a revisional jurisdiction, and number being a sentence or order passed or made in exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 106 of the Government of India Act, and that numberwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a Judgment of one Judge of the said High Court or one Judge of any division Court, pursuant to section 108 of the government of India Act, on or after the first day of February 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us. Our heirs or successors in Our or Their Privy Council, as hereinafter provided. Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the companystitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would number get excluded unless the statutory enactment companycerned expressly excludes appeals under letters patent. No such bar is discernible from sec. 6 3 of the act. it companyld number be seriously companytended by learned companynsel for the respondents that if clause 15 of the Letters Patent is invoked then the order would be appealable. Consequently, in our view, on the clear language of clause 15 of the Letters Patent which is applicable to Bombay High Court, the said appeal was maintainable as the order under appeal was passed by learned Single Judge of the High companyrt exercising original jurisdiction of the companyrt. Only on that short ground the appeal is required to be allowed.

FIRST SECTION CASE OF ROZHIN v. RUSSIA (Application no. 50098/07) JUDGMENT STRASBOURG 6 December 2011 FINAL 06/03/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Rozhin v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Linos-Alexandre Sicilianos,Erik Møse, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 15 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 50098/07) against the Russian Federation, lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Igor Yuryevich Rozhin (“the applicant”), on 8 November 2007. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged, in particular, that he had not been given an opportunity to attend hearings before domestic courts and thus had been unable to present his civil case effectively. 4. On 18 May 2010 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). Further to the applicant’s request, the Court granted priority to the application (Rule 41 of the Rules of Court). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1963 and lives in Minusinsk. 6. On 28 December 2001 the Tomsk Regional Court found the applicant guilty of membership of an organised criminal group, several counts of attempted aggravated murder, intentional destruction of property and arms possession and sentenced him to fourteen years’ imprisonment, which he was sent to serve in correctional colony no. 2, Tomsk Region. Proceedings concerning conditions of detention 7. On 11 November 2004 the applicant brought an action with the Asino Town Court, complaining of various violations of his rights by the administration of correctional colony no. 2. In particular, he complained that on a number of occasions in 2003 and 2004 the director of the correctional colony had ordered him to be placed in a punishment cell, which had entailed a serious worsening of the general conditions of his detention and limitation or deprivation of his rights as a detainee. The applicant also argued that the colony authorities had unlawfully seized his writing utensils, and had forbidden him to use the colony library and to purchase newspapers, magazines and books. He further alleged that they had not allowed him to have meetings with counsel and to make paid phone calls to his relatives, counsel and the European Court of Human Rights. His biggest grievance, however, was that the administration had refused to post his complaints to various authorities in Russia and had monitored or even intercepted his correspondence with the Court. The applicant also requested that the Town Court ensure that he could be present at a court hearing during the examination of his complaint. 8. Following a number of refusals by the Town Court to grant the applicant’s request, and the subsequent revocation of those decisions by the Tomsk Regional Court, on 3 October 2006 the Asino Town Court granted leave to bring an action for an examination on the merits, and set a preliminary hearing for 6 October 2006. Subsequent hearings were held on 12 and 30 October 2006. The applicant was not informed of either of those hearings. In fact, on 17 October 2006 he was transferred to another correctional colony in the town of Verkhneuralsk, Chelyabinsk Region, more than 1,500 km from his previous place of detention. 9. On 26 January 2007 the applicant was transferred to detention facility no. 77/2 in Moscow. 10. On 12 February 2007 the Asino Town Court dismissed the applicant’s complaint, having found that either the restrictions on the applicant’s rights had been lifted following an inquiry by prosecution authorities or they had been warranted by the applicant’s placement in the punishment cell, in view of numerous instances of unlawful behaviour on his part, such as refusal to keep his cell tidy, destruction of colony property, and so on. The applicant was not brought to the hearing. Representatives of the colony administration attended the hearings before the Town Court and made oral submissions. 11. By a separate decision issued on 12 February 2007 the Asino Town Court responded to the applicant’s request to be present at the hearings. In particular, the Town Court held as follows: “[The applicant], having been convicted by the judgment of 28 December 2001 of the Tomsk Regional Court, is currently serving his sentence. It appears from the case file materials that he was transferred outside the Tomsk Region. [The applicant] lodged a complaint about the actions of the head of [correctional colony no. 2], Tomsk Region...; accordingly, his complaint is being examined by the Asino Town Court within the civil procedure. The Execution of Sentences Act of the Russian Federation, in force at the material time, does not provide for an opportunity to transfer convicts to [ensure] their participation in court hearings in civil cases; therefore it is impossible for the court to ensure [the applicant’s] presence at the hearings in the present civil case.” 12. The applicant appealed, arguing, inter alia, that the Town Court had unlawfully refused to ensure his presence at the hearings, despite the fact that the majority of the circumstances in dispute were exclusively within his personal knowledge and it was important for the Town Court to hear both parties to the proceedings, the applicant and the administration. 13. At a hearing on 22 May 2007, held in the applicant’s absence, the Tomsk Regional Court upheld the judgment of 12 February 2007, endorsing the Town Court’s reasoning, including that on the subject of the applicant’s attendance. II. RELEVANT DOMESTIC LAW A. Provisions on attendance at hearings 14. The Code of Civil Procedure of the Russian Federation (CCP) provides that individuals may appear before a court in person or may act through a representative (Article 48 § 1). 15. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77 § 1). The Code does not mention any possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or a defendant. 16. On several occasions the Constitutional Court has dismissed as inadmissible complaints by detainees whose requests for leave to appear were refused by civil courts. It reasoned that the relevant provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict a detainee’s access to court. The Constitutional Court has emphasised nonetheless that an imprisoned person should be able to make submissions to a civil court, either through a representative or in any other way provided by law. If necessary, a hearing should be held at the convict’s place of detention, or the court committed to hear the civil case may instruct the court with territorial jurisdiction over the convict’s place of detention to obtain his/her submissions or to take any other procedural steps (decisions 478-O of 16 October 2003, 335-O of 14 October 2004 and 94-O of 21 February 2008). B. Other relevant provisions of the CCP 17. Under Articles 58 and 184 of the CCP a court may hold a session elsewhere than in a court-house if, for instance, it is necessary to examine evidence which cannot be brought to the court-house. 18. Article 392 of the CCP contains a list of situations which may justify the reopening of a finalised case on account of newly discovered circumstances. By a ruling of 26 February 2010 the Russian Constitutional Court indicated that this Article should be interpreted as, in principle, allowing a procedure to be launched to have a final judgment re-examined on account of newly discovered circumstances, such as the finding of a violation of the European Convention on Human Rights in a given case by the European Court of Human Rights. THE LAW I. THE GOVERNMENT’S REQUEST FOR THE APPLICATION TO BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION 19. The Government sent the Court, in a letter dated 15 September 2010, a unilateral declaration intended to resolve the issues raised by the application in question. 20. The declaration read as follows: “I, Georgy Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights, hereby declare that the Russian authorities acknowledge [that] the right to a fair hearing of [the] applicant’s civil case was breached. The authorities are ready to pay the applicant ex gratia a sum of 500 EUR as just satisfaction, as in Larin v. Russia (application no. 15034/04, judgment of 20 May 2010). The authorities therefore invite the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention. The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. This payment will constitute the final resolution of the case.” 21. In a letter of 17 January 2011 the applicant disagreed with the Government’s unilateral declaration, noting that the striking out of his application as the Government had requested would remove the opportunity for him to restore his right to “a fair hearing”, as the Russian law only provides for a reopening of the proceedings in cases where the European Court has found a violation of the Convention. He also argued that the amount of compensation provided in the Government’s unilateral declaration was too low. 22. The Court reiterates that in certain circumstances it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine the declaration carefully in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 74-77, ECHR 2003‑VI; Swedish Transport Workers Union v. Sweden (striking out), no. 53507/99, §§ 24-27, 18 July 2006; and Van Houten v. the Netherlands (striking out), no. 25149/03, §§ 34-37, ECHR 2005‑IX). 23. The Court notes that the Government acknowledged in their unilateral declaration that the civil proceedings in the applicant’s case had not complied with the requirement of fairness, and proposed to award him 500 euros (EUR). However, the Court observes that the Government did not undertake to reopen the domestic proceedings, or to ensure that the new proceedings met all the requirements of fairness set out in Article 6 of the Convention. In this regard, the Court notes that the nature of the alleged violation in the present case is such that it would not be possible to eliminate the effects of the infringement of the applicant’s right to a fair hearing without reopening the domestic proceedings. Moreover, the Court observes that the domestic law allows the reopening of proceedings in the event of a finding of a violation of the Convention by the Court. However, it appears that there is no provision allowing for the reopening of domestic proceedings on account of a decision by the Court to strike a case out of the list (see paragraph 18 above). 24. Having regard to the content of the Government’s unilateral declaration, the Court finds that the Government have failed to establish a sufficient basis for a finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (compare Hakimi v. Belgium, no. 665/08, § 29, 29 June 2010; Kessler v. Switzerland, no. 10577/04, § 24, 26 July 2007; and, most recently, Pirali Orujov v. Azerbaijan, no. 8460/07, §§ 27-32, 3 February 2011 ). 25. Therefore, the Court refuses the Government’s request to strike the application out of its list of cases under Article 37 of the Convention, and will accordingly pursue its examination of the admissibility and merits of the case. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 26. The applicant complained that both the Asino Town Court and the Tomsk Regional Court had refused to ensure his attendance. He relied on Article 6 § 1, which provided, in so far as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public ... hearing ... by [a] ... tribunal ...” A. Submissions by the parties 27. The Government accepted that there had been a violation of the applicant’s right to a fair determination of his civil case. 28. The applicant maintained his complaint. B. The Court’s assessment 1. Admissibility 29. The Court notes at the outset, and it is not in dispute between the parties, that at the national level there was “a genuine and serious dispute” over a “civil right” which could be said, at least on arguable grounds, to be recognised under domestic law. The Court therefore considers that the applicant’s complaint concerning the conditions of his detention and restrictions to which he was subjected as a result of his detention in correctional colony no. 2 is compatible ratione materiae with the provisions of the Convention, since it relates to Article 6 under its civil head (see Enea v. Italy [GC], no. 74912/01, §§ 101-107, 17 September 2009). 30. The Court further considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 31. The Court reiterates that the principle of adversarial proceedings and equality of arms, which is one of the elements of the broader concept of a fair hearing, requires that each party be given a reasonable opportunity to have knowledge of and comment on the observations made or evidence adduced by the other party and to present his case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (see Krčmář and Others v. the Czech Republic, no. 35376/97, § 39, 3 March 2000, and Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274). 32. Article 6 of the Convention does not expressly provide for a right to a hearing in one’s presence; rather, it is implicit in the more general notion of a fair trial that a criminal trial should take place in the presence of the accused (see, for example, Colozza v. Italy, 12 February 1985, § 27, Series A no. 89). However, in respect of non-criminal matters there is no absolute right to be present at one’s trial, except in respect of a limited category of cases, such as those where the personal character and manner of life of the person concerned is directly relevant to the subject matter of the case, or where the decision involves the person’s conduct (see, for example, Kabwe and Chungu v. the United Kingdom (dec.), nos. 29647/08 and 33269/08, 2 February 2010). 33. The Court has previously found a violation of the right to a “public and fair hearing” in several cases against Russia, in which a party to civil proceedings was deprived of an opportunity to attend the hearing because of belated or defective service of the summons (see Yakovlev v. Russia, no. 72701/01, §§ 19 et seq., 15 March 2005; Groshev v. Russia, no. 69889/01, §§ 27 et seq., 20 October 2005; and Mokrushina v. Russia, no. 23377/02, 5 October 2006). It also found a violation of Article 6 in a number of cases where Russian courts refused leave to appear to imprisoned applicants who had wished to make oral submissions on their civil claims. For instance, in the case of Kovalev v. Russia (no. 78145/01, § 37, 10 May 2007), despite the fact that the applicant in that case was represented by his wife, the Court considered it relevant that his claim of ill-treatment by the police had been largely based on his personal experience and that his submissions would therefore have been “an important part of the plaintiff’s presentation of the case and virtually the only way to ensure adversarial proceedings”. In the case of Khuzhin and Others v. Russia (no. 13470/02, §§ 53 et seq., 23 October 2008) the Court found that, by refusing to ensure that the imprisoned applicants could attend hearings, and by failing to consider other legal means of ensuring their effective participation in the defamation proceedings, the Russian courts had violated the principle of equality of arms. A similar conclusion was reached by the Court in other cases against Russia where authorities had failed to secure the imprisoned applicants’ appearance before civil courts examining their complaints about the conditions of their detention (see, for instance, Shilbergs v. Russia, no. 20075/03, §§ 107-113, 17 December 2009; Artyomov v. Russia, no. 14146/02, §§ 204-208, 27 May 2010; and Roman Karasev v. Russia, no. 30251/03, §§ 65-70, 25 November 2010). In the cases cited above the Court consistently held that, given the nature of the applicants’ claims which were, to a significant extent, based on their personal experience, the effective, proper and satisfactory presentation of the case could have only been secured by the applicants’ personal participation in hearings. The applicants’ testimony describing the conditions of detention of which only they themselves had first-hand knowledge would have constituted an indispensable part of the plaintiffs’ presentation of the case. 34. The Court notes that the Government acknowledged that there had been a violation of Article 6 § 1 of the Convention in the applicant’s case. Seeing no reason to disregard the Government’s admission, the Court finds that there has been a violation of that provision on account of the authorities’ failure to afford the applicant an adequate opportunity to present his case effectively before the civil courts. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 35. The Court has examined the other complaints submitted by the applicant. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 37. The applicant claimed compensation in respect of non-pecuniary damage, leaving the determination of the amount of compensation to the Court. 38. Relying on the Court’s judgment in the case of Larin v. Russia (no. 15034/02, § 62, 20 May 2010), the Government considered that the amount of 500 euros (EUR) was sufficient compensation for the non-pecuniary damage sustained by the applicant. 39. The Court, however, is of the opinion that the applicant must have suffered frustration and a feeling of injustice as a consequence of the courts’ refusal to secure his attendance at the hearings. It considers that the non-pecuniary damage suffered by the applicant cannot be adequately compensated by the finding of a violation alone. In the circumstances of the present case, the Court considers that the applicant should be awarded EUR 1,000 in respect of non-pecuniary damage. 40. The Court further reiterates that when an applicant suffered the infringement of his rights guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested (see, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV, and Popov v. Russia, no. 26853/04, § 264, 13 July 2006). The Court is particularly mindful, in this connection, that by virtue of the ruling of 26 February 2010 by the Russian Constitutional Court, Article 392 of the Russian Code of Civil Procedure must be interpreted as providing that civil proceedings may be re‑opened if the Court finds a violation of the Convention (see paragraph 18 above). B. Costs and expenses 41. Without indicating a sum or providing documents in support of his claim, the applicant also claimed compensation for costs and expenses incurred before the domestic courts and the Court. 42. The Government did not comment. 43. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the applicant’s failure to indicate the amount of costs and expenses incurred and to provide documents which could have enabled such a calculation of the sum to be made, the Court rejects the claim. C. Default interest 44. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the applicant’s attendance in the civil proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable on the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachNina VajićDeputy RegistrarPresident

THE PRESIDENT: I shall ask Lloyd Jones J to give the first judgment. MR JUSTICE LLOYD JONES: This is an appeal by way of case stated against the decision of District Judge Snow sitting at Marylebone Magistrates' Court on 25 July 2006. On various dates, between 29 June 2005 and 10 August 2005, informations were preferred by the Commissioner of Police for the City of London against the six appellants, that on various dates they had driven in excess of the 20 mph speed restriction imposed across Tower Bridge, London, contrary to section 88 of the Road Traffic Regulation Act 1964. It was agreed that the informations should be joined for the trial hearing. At the trial it was accepted, on behalf of the appellants, that Transport for London had introduced a speed restriction zone in this area with a speed limit of 20 mph by order GLA 2003 No. 29, made on 21 October 2003, which came into force on 25 October 2003. However, it was contended on behalf of the appellants that at the material times there was not a legally enforceable speed restriction on Tower Bridge and that accordingly there was no case to answer. This submission was based on various grounds, all of which were rejected by the District Judge. The only ground with which we are concerned is the submission that the terminal signs used at the entrance and exit points to the speed restriction area are not traffic signs within the meaning of section 64(1) of the Road Traffic Regulation Act 1984, as they do not conform to the regulations and have not been authorised by the Secretary of State. The district judge considered the documents lodged by the parties. He heard expert evidence for the prosecution and defence. He viewed the sites and the signs. He heard legal submissions on behalf of the prosecution and the defence. He made the following findings of fact, and I omit those findings relevant only to the other grounds which are not advanced on this appeal. He concluded that. "(a) the appellants were driving in excess of 20 mph. (b) A terminal sign must conform to the specification of diagram 670. That diagram prescribes a circular sign, with a red border around a white circle, on which is printed in black numerals the maximum speed allowed within the restricted area. The terminal signs in this area had to be illuminated. As a consequence the material of the signs was designed to allow them to be translucent. To allow them to be lit internally lighting units were made to hold the signs and they were mounted in those units. As a consequence of that mounting there was a small, black lip surrounding the sign. Except on very close examination the casing around the sign is effectively invisible. The sign complies with Diagram 670 and is independent of its casing. The assertion that the casing is a border rendering the sign defective should be rejected." At the request of the appellants the district judge has stated a case and has referred the following question for the opinion of the High Court: does the visibility of the housing around a terminal sign render it non prescribed within the meaning of section 64(1), Road Traffic Regulation Act 1984? On behalf of the appellants, Mr Richard Sharpe submits that there was no legally enforceable speed restriction in place on Tower Bridge at the relevant time because the terminal signs are non prescribed signs under the 1984 Act and, as such, are illegal. Section 85(1), (2) and (4) of the Road Traffic Regulation Act 1984 provide: "(1) For the purpose of securing that adequate guidance is given to drivers of motor vehicles as to whether any, and if so what, limit of speed is to be observed on any road, it shall be the duty of the Secretary of State in the case of a road for which he is the traffic authority, to erect and maintain the prescribed traffic signs in such positions as may be requisite for that purpose. (2) In the case of any other road it is the duty of the local traffic authority- (a) to erect and maintain the prescribed traffic signs in such positions as may be requisite in order to give effect to general or other directions given by the Secretary of State for the purpose mentioned in subsection (1) above, and (b) to alter or remove traffic signs as may be requisite in order to give effect to such directions, either in consequence of the making of an order by the Secretary of State or otherwise. ... (4) Where no such system of street or carriageway lighting as is mentioned in section 82(1) is provided on a road, but a limit of speed is to be observed on the road, a person shall not be convicted of driving a motor vehicle on the road at a speed exceeding the limit unless the limit is indicated by means of such traffic signs as are mentioned in subsection (1) or subsection (2) above." Section 64(1) and (2) of that statute provide: "64.—(1) In this Act 'traffic sign' means any object or device (whether fixed or portable) for conveying, to traffic on roads or any specified class of traffic, warnings, information, requirements, restrictions or prohibitions of any description— (a) specified by regulations made by the Ministers acting jointly, or. (b) authorised by the Secretary of State. and any line or mark on a road for so conveying such warnings, information, requirements, restrictions or prohibitions. (2) Traffic signs shall be of the size, colour and type prescribed by regulations made as mentioned in subsection (1)(a) above except where the Secretary of State authorises the erection or retention of a sign of another character; and for the purposes of this subsection illumination, whether by lighting or by the use of reflectors or reflecting material, or the absence of such illumination, shall be part of the type or character of a sign." The appellants submit that the effect of these provisions is that no motorist may be convicted of a speeding offence, other than where street lighting creates a 30 mph restriction, unless traffic signs are in place and the traffic signs must either conform with the prescription given by regulations or have been authorised specifically by the Secretary of State. It is common ground that there has been no separate authorisation by the Secretary of State in this case. Accordingly the only issue is whether the signs conformed with the prescription in the regulations. The Traffic Signs Regulations and General Directions 2002, Direction 8(1)provides: "Diagram 670 terminal signing shall be erected on each side of a carriageway at the entry point to a speed restriction to which the sign can be applied." Regulation 11 states: "Subject to the provisions of these Regulations, a sign for conveying information or a warning, requirement, restriction, prohibition or speed limit of the description specified under a diagram in Schedules 1 to 7, part II of schedule 10 and schedule 12 to traffic on roads shall be of the size, colour and type shown in the diagram." Diagram 670 consists of a circular sign with a red border around a white circle, on which is painted in black numerals the maximum speed allowed within the restricted area. On behalf of the appellants, it is contended by Mr Sharpe that this prescription is not conformed with in the case of the signs of Tower Bridge because the casing which houses each sign's internal illumination is visible at the front of the sign, and effectively creates a black border around the sign itself. It is further said that the permitted variants to diagram 670 are listed in Schedule 16 Item 1 and do not include a black border. Before this court the appellants submit that the entirety of the sign, including any surround, must be considered when determining whether or not a sign is prescribed. Mr Sharpe bases this submission first on the effect of section 64(2) of the Road Traffic Regulation Act, which he says is that any housing containing the illumination of the sign is to be considered part of the total character of the sign for the purpose of determining whether a sign is prescribed by the regulations. Secondly, Mr Sharpe says that the effect of Direction 42, Traffic Sign Regulations and General Directions 2002 is that the display of the sign against a background, which is not grey or yellow, is prohibited. In this regard Mr Sharpe also relies on Chapter 7 of the Traffic Signs Manual 2003. On behalf of the respondent, Mr Nicholas Mather accepts that if the housing is properly to be considered a border or to be an integral part of the sign itself, it arguably fails to be a prescribed sign within section 64(1) and section 85(1) of the 1984 Act. However, he submits that the housing used in these signs is not an integral part of the sign and is independent of the sign itself. Moreover, he submits that in each case the housing is effectively invisible and does not form part of the indication given by the sign itself. In their written submissions the appellants drew attention to the final words of section 64(2) of the 1984 Act which provided that: "for the purposes of this subsection illumination, whether by lighting or by the use of reflectors or reflecting material, or the absence of such illumination, shall be part of the type or character of a sign." Mr Sharpe originally submitted that it followed that any housing containing the illumination of the sign is to be considered part of the type or character of the sign for the purpose of determining whether it conforms with the regulations. Accordingly it is not to be considered independent in this case, as the district judge concluded. However, in his submissions today Mr Sharpe has not advanced that submission. I consider that that concession was rightly made. It is based, to my mind, on a misreading of the provision. The provision is concerned with the illuminated or non-illuminated state of the sign. It does not address the housing for the equipment intended to illuminate the sign. Provision in relation to the container, enclosing apparatus for the illumination of the sign, is however made by Direction 42 of the Traffic Sign Regulations and General Directions 2002. That provides in relevant part: "42-(1) The back of any sign shown in a diagram in Schedules 1 to 5,7, Part 11 of Schedule 10 or in Schedule 12, or prescribed by regulation 53, other than the sign shown in diagram 651,970 971, 972 973.2, 973.3, 2610, 2610.1, 2610.2, 7101.1, 7102,7103,7104 or 7105 shall be coloured- (a) black if the sign is mounted on the same post as that on which light signals prescribed by regulation 33(1)(or those signals as varied in accordance with regulation 34) or light signals prescribed by regulation 33(2) and regulation 35 are mounted; or (b) grey, black or in a non-reflective metallic finish in any other case ... (2) Paragraph (1) shall apply to the back of any backing board or other fitting provided for the assembly of such a sign as is referred to in paragraph (1)(including any container enclosing apparatus for the illumination of such a sign). ... (5) The front of any backing board for a sign mounted otherwise than as described in paragraph (1)(a) shall be coloured either grey or yellow. (6) A yellow backing board for a sign (except one for the sign shown in diagram 2402.1) shall be rectangular in shape. ... (9) In this direction 'backing board' in relation to a sign includes any background (except a wall to which the sign is affixed) against which the sign is displayed." This provision is the only one drawn to our attention which refers expressly to any container enclosing apparatus for the illumination of the sign. Its effect is that the back of the stipulated signs, including any container enclosing apparatus for illumination, shall be black if mounted on the same post as light signals, or grey, black or in a non-reflective metallic finish in any other case. In the present case the back of the container enclosing the illumination apparatus is covered black in accordance with the provisions. The provision further requires that the front of any backing board for a sign mounted otherwise than on the same post as the light signals shall be coloured either grey or yellow and shall be rectangular in shape. In this regard I should draw attention to the definition of backing board in Direction 42: "(9) In this direction 'backing board' in relation to a sign includes any background (except a wall to which the sign is affixed) against which the sign is displayed." Before us it is argued by Mr Sharpe that the housing of the illuminated apparatus was a backing board and did not comply with the regulations because it was black. To my mind this is an impossible submission. The lip created by the housing is clearly not a backing board. It is not a background against which the sign is displayed. I accept that the position might be different if there were a substantial surround, which was visible to road users, but here the district judge has found that the lip of the container of the apparatus is effectively invisible, save on close examination. Mr Sharpe then asks rhetorically: why is it lawful to encapsulate a traffic sign within a black surround when to encapsulate it within an identical appearing backing board would render the sign non-prescribed? I am unable to accept the premise on which this question proceeds. I find it inconceivable that a backing board could have an identical appearance to the surround in the present case. The effect of the casing is to create the merest rim around the sign. The district judge found that, except on very close examination, the casing around the sign is effectively invisible. The two situations, are, to my mind, entirely distinct. For the same reason I am unable to accept the submission of the appellants that to allow the black casing to appear as a rim around these signs could lead to confusion with signs which are required to have black borders. The effect, as found by the district judge, is that the rim would be effectively invisible. I conclude, therefore, that Direction 42 does not assist the appellants. Its application to the facts of the present case is limited to the requirement that any container enclosing apparatus for the illumination of the sign must be, in the circumstances with which we are concerned, grey, back or in a non-reflective metallic finish and the signs for Tower Bridge comply with that requirement. The appellants also rely on a passage in Chapter 7 of the Traffic Signs Manual 2003. This is a manual published by the Department for Transport on signs and their use. It states at paragraph 14.19: "To improve conspicuity against a complex or dark background, a sign may be mounted on either a grey or a yellow backing board (direction 42(5)). This board must not be provided with an additional black border." I do not derive any assistance from this passage. As the manual makes clear, it is concerned with the mounting of signs on backing boards to improve conspicuity. That is not the case here. In any event, as I have already explained, the rim cannot be regarded as a backing board. I therefore accept the submission on the part of the respondent that the housing used in these signs is not an integral part of the sign and is independent of the sign itself. The two are, to my mind, entirely distinct. I consider that the signs on Tower Bridge do comply with the relevant regulations. However, I should also consider the position, if the appellants were correct in their submission that the road signs did not comply with the requirements of the regulations. Here I bear in mind the decision of this court in Davies v Heatley [1971] RTR 145, that there must be strict and complete compliance with the regulations governing the form of road signs. However, this does not mean that any deviation from the requirements of the regulations will lead inevitably to the conclusion that the signs were not prescribed signs and give rise to no legally enforceable restrictions. A number of decisions of this court, while acknowledging the general rule stated in Davies v Heatley, have applied a de minimis exception to the rule. In Sharples v Blackmore [1973] RTR 249 this court held that the fact that the back of a road sign had been painted the wrong colour did not make a restricted road into a destricted road. May J, as then was, when delivering the first judgment observed that he did not intend, in any way, to detract from the authorities which lay down that where signs are erected and are in place on a road giving guidance or giving directions to drivers, they must in the respects in which they give that guidance, or give those directions, comply strictly with the requirements of the regulations. However, he considered the non-compliance of the rear of the sign to be wholly immaterial. Similarly, in Cotterill v Chapman [1984] RTR 73, a decision which Mr Sharpe has very properly drawn to our attention, this Court concluded that a miniscule deviation of some 3 millimetres, in a line painted on the road did comply with the requirements. The departure from the standards set down in the regulations were so minor, that this court concluded that it should be disregarded by the application of the de minimis principle. In the present case there was no question of any road user being misled or misinformed. The district judge has found that except on very close examination the casing around the sign is effectively invisible. In the light of that finding I consider that even if, contrary to my conclusion, the sign is to be regarded as not complying with the regulations, the deviation is so minor that on the authority of Sharp v Blackmoor and Cotterill v Chapman it should be disregarded. For these reasons, despite the valiant submissions of Mr Sharpe, I should answer the question posed as follows: the visibility of the housing around the terminal sign does not render it non-prescribed within the meaning of section 64(1) Road Traffic Act 1984. THE PRESIDENT: I agree with my Lord's analysis of the law and the relevant legal principles. This is an appeal by way of case stated from the decision of District Judge Snow. He plainly took a great deal of trouble with the case in order to address the issues raised in argument on behalf of the appellants. He visited the site and made his own judgment of the sign in question. He made an express finding of fact that, except on very close examination, the casing around the sign is effectively invisible. My Lord's judgment has explained the significance of the casing and how it comes to be there. Stripped to essentials, the issue for decision is whether this sign, which clearly sets out a 20 mph speed limit in accordance with regulations, is flawed because of a very narrow lip visible on very close examination, but effectively invisible to the motorist driving on Tower Bridge. In this context a flaw which is invisible, or virtually so, falls within the rule that the law is not usually troubled by trivialities. It is something of a relief to be able to conclude that an appeal, so entirely based on technicality and so utterly devoid of merit, should be dismissed. MR MATHER: The only other matter is costs. Can I hand up a schedule? It is agreed between us. THE PRESIDENT: Mr Sharpe, what do you say about the principle? MR SHARPE: I agree with the schedule and I do not think I can say much on it, to be honest. THE PRESIDENT: The appeal will be dismissed with costs. This is the entire schedule of costs? MR MATHER: It is. THE PRESIDENT: The Crown's costs will be assessed at £1,500. Thank you very much, Mr Sharpe, for an interesting argument.

Judge Roger Kaye QC: Introduction The claimant, Ms Sheila Mary Lock, is the former Chief Executive of the defendant, Leicester City Council. This was a contractual post entered into between the claimant and defendant on the 3 January 2006. Incorporated into her contract as Chief Executive, the claimant was also the defendant's head of paid service, a statutory position which a "relevant" local authority (of which it is common ground the defendant was one) is required to designate one of its officers to hold and fill under the provisions of the Local Government and Housing Act 1989 ("the 1989 Act"). The claimant's case for judicial review is largely based on a letter dated 8 July 2011 in which, the claimant contends, the defendant sought to dismiss her from the post of Chief Executive and from her functions as head of paid service, in consequence of its reorganisation following its decision to move over to a system of being run by elected Mayors. The issue is whether those dismissals were effective or, as the claimant contends, were unlawful. The claimant commenced judicial review proceedings on 6 October 2011 seeking to quash the decision to dismiss her, reinstatement and damages. On 5 January 2012, permission having been originally refused by HHJ Langan QC, following an oral renewal hearing HHJ Shaun Spencer QC sitting as a judge of this court allowed the claim to proceed. The claimant's main case is that her dismissal was unlawful, not in accordance with the relevant provisions and procedure set out in Schedule 1 to the Local Authorities (Standing Orders)(England) Regulations 2001 (SI 2001 No 3384) ("the 2001 Regulations"). She also maintains that the defendant as a public authority acted in contravention of her human rights under the European Convention of Human Rights and Fundamental Freedoms ("ECHR") in breach of s 6 of the Human Rights Act 1998. Reliance is placed on article 6 (right to fair hearing) and article 8 (right to respect for private life). The Facts It is not in dispute that the defendant is a local authority within the meaning of the Local Government Act 1972, the 1989 Act and the Local Government Act 2000. The claimant, who had commenced employment in local government in about 1987, was employed by the defendant as its Director of Children's Services on 3 January 2006. In January 2008 she was promoted to temporary chief executive and confirmed in that post on 28 August 2008 as the defendant's Chief Executive. Under s 4(1)(a) of the 1989 Act it was and is the statutory duty of every "relevant authority" (which, it is common ground, extended to the defendant) "to designate one of their officers as the head of their paid service". It is also common ground that the claimant, as the Chief Executive of the defendant council, became the defendant's head of their paid service on assuming her employment as Chief Executive and remained so until her dismissal or purported dismissal. On 22 April 2009 the claimant received confirmation of her "Job Description" in the form of a written document[1]. On the first page this contained an "Overall Purpose of this Post" under the heading or box "Post Title: Chief Executive" commencing in the following words: "As Head of Paid Service ensure the effective strategic leadership of the Councils senior management team and the Councils principal policy adviser to the Leader and Cabinet in order to support the delivery of excellent services in accordance with Council policy, budgetary and statutory requirement to ensure its overall strategic objectives are met." The claimant's contract and Job Description incorporated and listed other specified tasks, various terms and conditions not material for present purposes. In January 2011 the then MP for Leicester, Sir Peter Soulsby, announced his intention to stand for the newly proposed post of directly elected Mayor of the City of Leicester. It was stated on a number of occasions that part of his platform included the proposed abolition of the post and role of Chief Executive (principally on the grounds of efficiency, on the basis the City did not need both an executive elected Mayor and a separate, Chief Executive). One of the City Councillors and cabinet members, a Mr Rory Palmer, resigned his post on the Council cabinet in order to assist Sir Peter actively in his campaign and to act as his election agent. In the meantime, at the end of 2010 the claimant, having been subjected to a sustained campaign of harassment over four years from an employee of the defendant (who was subsequently convicted of the harassment under the Protection from Harassment Act 1998 at Leicester Crown Court in December 2011 and sentenced to two years imprisonment), was off work for a number of weeks owing to the stress relating to the abuse returning to work for some three weeks in January 2011. Following a further period off work, she returned for 2-3 days per week for a further three weeks or so in February and March 2011 since when she has not returned to work. The claimant's incapacity owing to the work-related stress resulting from the systematic harassment she had received was well known to the defendant council. Indeed in February 2011 the council was formally notified that stress owing to the harassment was the reason for the claimant's being off work by the Council's occupational health physician. On 6 May 2011 Sir Peter was elected as the first directly elected City Mayor of the defendant. Following this the claimant was informed, both by telephone and letter, of intentions to consult on the proposals for abolition of the post of Chief Executive. On 16 May 2011 at a press conference, he confirmed his proposal to abolish the role of Chief Executive and to remove the defendant from her office. He further announced a review of every part of senior management of the Council and to set in train a procedure for identifying a suitable candidate to fill the role of head of paid service. At the same press conference the Council's Director of Human Resources ("DHR") informed the media that the claimant was off work ill and would be off for at least a further four weeks. She informed the press that any redundancy pay to the claimant would not be large as she had only been in post for three years. (In fact she had been in continuous employment by local authorities for some 22 years reckonable service as the Council later recognised.) The claimant was duly formally informed of the proposal to abolish her post by letter the same day. She had of course been previously alerted on 13 May and as a result consulted solicitors who replied on her behalf on 18 May 2011. A consultation meeting was held on 23 May which the claimant did not attend but at which she was represented by her solicitors. On 24 May 2011 the claimant submitted a complaint by way of grievance against the Council in the form of the City Mayor and DHR. She complained of the manner of her treatment as a woman, of the Council's failure to follow correct procedures, of the manner of the announcement to the media including disclosing her individual employment circumstances to the press, of the failure to correct misleading statements to the press, the failure to consult regarding the abolition of her post, the failure to exercise their duty of care to her and failure to follow the advice from the occupational health advisors. By e-mail of 1 June 2011 the claimant was informed that the issues she raised should not have been raised with the City Mayor but laid before the Employees' Committee of the Council. (Again, the Council later admitted this contention had been wrong.) On 2 June 2011 the Employees' Committee, chaired by the same Councillor Mr Rory Palmer, considered a report in the form of a two page business case to abolish the role of Chief Executive and also considered other reports aimed at restructuring the senior management posts including the proposal to make the role of Chief Executive redundant. The Committee resolved the proposals should proceed and gave the City Mayor and Cabinet seven days to object. The claimant's solicitors were informed of the outcome of this meeting by letter of 3 June 2011 and informed by email of the next steps in dealing with the proposals. The Executive Members of the Council were also asked if they had any objection to the abolition of the post of Chief Executive. Apparently there were none. Also on 2 June 2011 the Council was again advised by its occupational health physician that the claimant was suffering from anxiety, depression and post-traumatic stress arising from the harassment. Shortly after there was a further leak to the media which the defendant accepted was serious. Objections from the claimant regarding her proposed redundancy were also submitted on 16 June 2011 and responded to by the defendant on 23 June. On 29 June 2011 at a further meeting of the Employees' Committee, again chaired by Mr Palmer, consideration was given to whether it should support a proposal to abolish or "delete" the post of Chief Executive. Logically that was right. Before considering the position of the claimant it was inevitably right to consider whether the post of Chief Executive should be retained or deleted. That, as the Minutes expressly noted, was the remit and terms of reference of that Committee[2]. It was recorded that no objections had been received from members of the Executive and further noted in supporting the proposal[3]: "… that a Special Full Council meeting will be arranged in order to approve the decision to delete the post of Chief Executive, firstly, in accordance with the statutory regulations applicable to deletion of the post of Head of Paid Service and, secondly, if so pursued act as the appeal stage in relation to the Committee's decision." The result of the meeting was emailed to the claimant's solicitors. By letter dated 8 July 2011[4] the DHR wrote to the claimant giving (or purporting to give) her 4 months' notice of dismissal by reason of redundancy expiring on 10 November 2011. The letter was headed "Notice of Redundancy". The opening paragraphs of the letter are of some importance and stated: "As you are aware the Employees Committee met on 29th June 2011 to further consider the proposal to delete the post of Chief Executive and a copy of the minutes of that meeting will be forwarded to you when they have been approved by the relevant Elected Members. I can confirm that the decision of the Employees Committee was that the post of Chief Executive should be deleted. It is therefore with regret that I have to write to you to confirm that your employment with Leicester City Council will end on 10th November, 2011 by reason of redundancy subject to approval by full Council. Please, however, treat this letter as formal notice of redundancy. "I understand that you are aware that the [2001 Regulations] sets out a process to be followed in relation to any decision to dismiss a Head of Paid Service which includes approval by full Council. The Authority has endeavoured not only to follow this process but also to incorporate the legal principles that apply to any redundancy process which includes a right of appeal. It is therefore proposed that Council will not only consider whether or not to approve the decision to delete the post of Chief Executive but also any appeal received from you regarding the decision of the Employees Committee to delete the post of Chief Executive which has resulted in this notice to dismiss you by reason of redundancy. Should you wish to appeal against the decision to dismiss you please write to me within the next 15 days i.e. by 26th July, 2011 setting out your grounds of appeal. The reason for giving you longer than the standard 10 days is to take into account your current ill health." Before formally appealing a further meeting was held, attended by the claimant, to discuss redundancy issues[5]. The claimant then formally appealed by an 11 page document submitted under cover of a 2 page letter dated 29 July 2011 on her behalf by her solicitors[6] (no point was taken about time). Her appeal (and the response[7]) was considered at a meeting of the full Council on 4-5 August 2011 and dismissed. I have seen the Minutes of this Committee[8] so far as related to the matters relevant to this case. It is clear there was a very full and anxious debate extending over seven hours and lasting from 5pm to just after midnight. The full Council resolved to dismiss the claimant's appeal against abolishing the post of Chief Executive, to approve her dismissal by reason of redundancy as a result of the deletion of the post of Chief Executive, and to appoint the deputy Chief Executive as temporary head of paid service pending the outcome of the senior management review[9]. On 12 August 2011 the DHR wrote again to the claimant informing her "that the decision of the Council at the meeting was to dismiss your appeal and that in the light of the decision to dismiss the appeal the Council approved your dismissal by reason of the redundancy as a result of the deletion of the post of Chief Executive …". The DHR further informed the claimant that notice period would expire on 10 November 2011. On 6 October 2011 the claimant lodged her present application for judicial review of the decision to dismiss her. Following commencement of the proceedings but before the substantive hearing, the following occurred: •    On 24 October 2011 the claimant commenced proceedings in the Employment Tribunal. Those proceedings are currently stayed pending the outcome of the claimant's application for judicial review. •    On 16 February 2012 the Acting City Solicitor wrote to the claimant informing her that the DHR had overlooked adjusting the starting date of her redundancy to reflect the date of the Council resolution and stated that the Council would pay her salary over the period from 10 November 2011 to 12 December 2011. This was on the footing that her notice of dismissal had taken place from 12 August 2011 (following the resolution of the full Council) not 8 July 2011. The Legal Framework In order to understand the rival contentions it may be useful at this stage to set out, non-contentiously, the legal framework or context of this case. The principle enunciated by Lord Bingham in McLaughlin v Governor of the Cayman Islands [2007] 1 WLR 2839 at para. 14 is not in dispute: "It is a settled principle of law that if a public authority purports to dismiss the holder of a public office in excess of its powers, or in breach of natural justice, or unlawfully (categories which overlap), the dismissal is, as between the public authority and the office-holder, null, void and without legal effect, at any rate once a court of competent jurisdiction so declares or orders. Thus the office-holder remains in office, entitled to the remuneration attaching to such office, so long as he remains ready, willing and able to render the service required of him, until his tenure of office is lawfully brought to an end by resignation or lawful dismissal." Turning next to the legislative framework, I have previously mentioned that every "relevant authority" (which for these purposes included the defendant) must designate one of their officers as head of their paid service (see the 1989 Act, ss 4(1)(a), 21(1)(aa)). The local authority must provide the officer concerned with staff, accommodation and other resources sufficient to undertake his duties under the section (s 4(1)(b)). The head of paid service must, if he considers it appropriate to do so, prepare a report to the council setting out his proposals for dealing with coordination of the authority's various functions, as to the number and grades of staff needed for the discharge of their functions and appointment, organisation and proper management of the staff (s 4(2)(3)). Section 8 of the 1989 Act enables the Secretary of State to make regulations requiring relevant local authorities to adopt standing orders with respect to their staff including provisions for regulating their dismissal. The 2001 Regulations are regulations made under, amongst other enabling provisions, s 8. Regulation 3 of the 2001 Regulations requires such local authorities to incorporate in their standing orders relating to staff the provisions in Part I of Schedule 1 to the Regulations or provisions to like effect. It is common ground that the defendant applied the provisions in Part I of Schedule 1. In such circumstances, by Regulation 5, "the power to approve the … dismissal of the head of the authority's paid service shall be exercised by the authority itself". Central to this case are the provisions of paragraph 4(1) of Part I of Schedule 1 to the 2001 Regulations. This provides as follows: "Where a committee, sub-committee or officer is discharging, on behalf of the authority, the function of the appointment or dismissal of an officer designated as the head of the authority's paid service, the authority must approve that appointment before an offer of appointment is made to him or, as the case may be, must approve that dismissal before notice of dismissal is given to him." Paragraph 6 of the same Schedule is also relevant, and provides: "6.  - (1) In this paragraph, "dismissor" means, in relation to the dismissal of an officer of the authority, the authority or, where a committee, sub-committee or another officer is discharging the function of dismissal on behalf of the authority, that committee, sub-committee or other officer, as the case may be.     (2) Notice of the dismissal of an officer referred to in sub-paragraph (a), (b), (c) or (d) of paragraph 3 must not be given by the dismissor until - (a) the dismissor has notified the proper officer of the name of the person who the dismissor wishes to dismiss and any other particulars which the dismissor considers are relevant to the dismissal; (b) the proper officer has notified every member of the executive of the authority of - (i) the name of the person who the dismissor wishes to dismiss; (ii) any other particulars relevant to the dismissal which the dismissor has notified to the proper officer; and (iii) the period within which any objection to the dismissal is to be made by the elected mayor on behalf of the executive to the proper officer; and (c) either - (i) the elected mayor has, within the period specified in the notice under sub-paragraph (b)(iii), notified the dismissor that neither he nor any other member of the executive has any objection to the dismissal; (ii) the proper officer has notified the dismissor that no objection was received by him within that period from the elected mayor; or (iii) the dismissor is satisfied that any objection received from the elected mayor within that period is not material or is not well-founded." The claimant was within paragraph 6(2) as an officer specifically mentioned in the paragraph 3(a) referred to. The Claimant's Contentions Mr David Jones, on behalf of the claimant, launches his attack on five Grounds: •    First, he submits that the letter of 8 July 2011 giving the claimant notice of termination was in contravention of paragraph 4(1) of Schedule 1 to the 2001 Regulations in that it purported to dismiss the claimant before the defendant's full Council had approved the proposal to abolish the role of head of paid service. •    Second, he relies on unfairness and breach of article 6 of the ECHR in that the elected Mayor was required to consider whether there was any objection to the proposed removal of head of paid service whereas he had already announced his pre-determined intention to dispense with the post of chief executive; •    Third, he relies on unfairness and perception of bias (and a further breach of article 6) in the involvement of Cllr Palmer as chair of the Employees' Committee when he already supported the move to abolish the post of chief executive; •    Fourth, he submits that there was a failure to consider even whether the abolition of the post could be justified on financial grounds, the very premise on which abolition was based; •    Fifth, he refers to irrationality and unfair disclosure of the claimant's personal circumstances especially that of her medical condition in breach of her article 8 rights under the ECHR. The Defendant's Response Mr Philip Coppel QC, on behalf of the defendant, responded that each of these Grounds of attack was "misconceived" as follows: •    Generally, each ground rested on the assumption that the defendant Council had made the claimant redundant or dismissed her (including from her office of head of paid service) by the letter of 8 July and also upon the further assumption that the dismissal of the claimant as Chief Executive necessarily resulted in her dismissal as head of paid service; •    As to the first Ground, this was misconceived, he submitted, on a number of grounds: a) First, the claimant confused two posts: Chief Executive and head of paid service. The 2001 Regulations are concerned only with the latter (in the form of the person who was "designated" head of paid service), not the former. So far as the latter is concerned the Regulations contemplate two scenarios: dismissal by the authority itself and dismissal by a committee, sub-committee or officer on behalf of the authority (i.e. as agent for the authority). Paragraph 4 is only engaged with the second scenario. Where the decision is made by the authority itself, then paragraph 6 applies. b) Second, in fact the letter of 8 July, properly read, did not dismiss the claimant at all (that was something the Employees' Committee could not do), it merely recommended dismissal. The letter made clear that this was subject to approval by the full Council, and gave her the opportunity to appeal and make representations to the full Council. c) Further, neither the resolution of the Employees' Committee, nor the letter of 8 July dealt with her role as head of paid service. It was not concerned with that. Its remit was solely the consideration of her (employment) post as Chief Executive, namely whether that should be abolished. The claimant's dismissal as chief executive would not and could not necessarily result in the abolition of the statutory role of head of paid service. d) What the letter attempted to do, Mr Coppel submitted, were two things: one to deal with the employment law requirement that there should be an appeal structure, second to deal with the problem that, under the 2001 Regulations, it was for the full Council to decide to dismiss a head of paid service (or approve it). Since the Employees' Committee had not dealt with the issue of head of paid service paragraph 4(1) did not apply; that Committee was not "discharging on behalf of the authority the function of the …. dismissal of an officer designated as the head of the authority's paid service". Instead the procedure in paragraph 6, and especially paragraph 6(2) had to be observed. Thus the full Council meeting of 4 August had to serve two purposes: appeal from the Employees' Committee recommending abolition of the post of Chief Executive and also the decision-making forum for the purposes of what to do about the head of paid service. e) It was apparent from the claimant's appeal of 29 July that she understood that the Employees' Committee had made a recommendation, not a decision. The letter, more than once, referred to "proposals" in the context of the abolition of her post as Chief Executive. f) The full Council meeting of 4-5 August was a lengthy meeting at which careful consideration was given to all the matters before them and only after a lengthy debate was it decided to dismiss the claimant by reason of redundancy having first decided to abolish the post of Chief Executive. It was apparent from the minutes that the decision (whether or not to dismiss the claimant) was one to be taken, not one that had been taken and needed approval or upholding or not as the case might be. The meeting resolved on three relevant matters: first to abolish the post of Chief Executive, second, to dismiss the claimant, and third, to appoint a temporary head of paid service pending the outcome of senior management review. •    As to the second Ground (Pre-Determination by the Mayor), Sir Peter (correctly) left the meeting and took no part in its deliberations or vote. •    As to the third Ground (Cllr Palmer), the minutes of 4 August record that Cllr Palmer declared he had pre-determined the matter of deletion of the post of Chief Executive and accordingly, as with Sir Peter, correctly left the meeting and took no part in the deliberations or vote. •    As to the fourth Ground (alleged failure to take into account relevant consideration), Mr Coppel pointed out that the claimant had been invited to make submissions following the recommendations of the Employees' Committee and had done so. These were circulated to members of the Council together with the Council's response. The long and detailed debate of the full Council does not suggest these matters were ignored or overlooked. •    As to the fifth Ground, the decision was not irrational but carefully reached after anxious consideration at every stage. The fact that some (and the claimant in particular) may disagree with the result (the abolition of the post of Chief Executive) does not of itself make the decision irrational. The reports, business case, and minutes of various meetings all show the care and thoroughness with which the decision and relevant resolutions were reached. Discussion Preliminary Points First, a few preliminary points must be borne in mind: •    A clear distinction must be made between the claimant's contractual position as Chief Executive and her statutory position as the designated head of paid service. In the case of the claimant her contractual position also included her statutory designated function. This court is concerned with the public office (a matter of public law), not the contractual employment (private law). This case is thus not like that of Mrs Shoesmith in R (Shoesmith) v Ofsted & Ors [2011] EWCA Civ 642 where Mrs Shoesmith's role was a wholly statutory one, Director of Children's Services, under the Children Act 2004. •    As noted above, dismissal of a public office holder by a public authority in excess of its powers, in breach of natural justice or unlawfully may well result in the dismissal being of no effect. It must, however, be borne in mind, as Mr Coppel also submitted, that judicial review is generally a remedy of last resort and this court will be slow to interfere where the claimant has an alternative remedy before another tribunal, internal or external. Here one of the functions of the claimant as Chief Executive was to hold office as head of paid service. Her dismissal as Chief Executive involves private law rights between her and the defendant based on her contract of employment. In respect of this the claimant already has an alternative remedy in the form of the Employment Tribunal. •    As Mr Jones rightly accepted, this court is also not concerned with the question whether Leicester City Council is better run with or without a Chief Executive. That is a matter for the Council. This court is concerned with procedure, and procedural unfairness as a matter of public law, not private law. •    It is true that the minutes of the full Council meeting of 4-5 August 2011 nowhere actually dismissed the claimant from her functions as head of paid service. In truth, in my judgment as I read the 1989 Act and the 2001 Regulations she did not need to be. The 1989 Act merely requires, by s 4(1(a) the local authority to "designate" one of their officers as the head of their paid service. The 2001 Regulations (whether considered as under paragraph 4 or 6 of Schedule 1) require certain procedures to be observed before that officer, so designated, can be given notice of dismissal. This left Mr Jones with something of a dilemma. He was not concerned in this court with anything other than the public law aspects of Mrs Lock's position. On that basis he had to focus (rightly in my view) on the procedural aspects leading to the dismissal of the claimant as Chief Executive insofar as they involved or related to the fact that she was also the designated head of paid service. I therefore now turn to consider each of Mr Jones's grounds. Ground 1 This Ground is the real core of this case. Here I was, at first, much tempted by Mr Jones's arguments that paragraph 4(1) was not complied with as regards the letter of the 8 July 2011. It is certainly an ill-judged and not well drafted letter having been headed "Notice of Redundancy" which was not open to the Employees' Committee. On any basis the matter had either to be decided upon by the full Council or approved by the full Council. The focus therefore was (or ought to have been) on the meeting of 4 August, not on the letter of 8 July. A review of the entire process from start to finish shows, in my judgment, that the defendant Council were keen to try and get things right both as a matter of employment law and statute (or Regulation). Part of the problem was the overlap of contractual role (Chief Executive) with statutory function (designated head of their paid service). The functions of the latter did not need to be incorporated into the job of the former but it was. (I intend no criticism of that; there may have been good and proper reasons for doing so.) But it helps, in my judgment, to separate out the contractual role and statutory function and consider how the position is viewed, as a matter of public law, solely looking at the claimant's dismissal or termination of her office as designated head of paid service. The dilemma (if that is the right word) before the Council was this: first, should the post of Chief Executive be "deleted", abolished, or made redundant? Second, if so, what was to happen to the person in that post -redundancy or employment elsewhere? The statutory functions and tasks attaching to the officer who was designated head of paid service could not be "deleted" since they were and are a statutory responsibility. The person so designated, however, could only be dismissed provided the correct procedures under the 2001 Regulations were observed. If the Chief Executive post was deleted and made redundant and if the person in that post was to be declared redundant and dismissed in consequence then, as here, where that person was also designated head of paid service, then the procedure for dealing with the redundancy of and dismissal of the Chief Executive had also to deal with the procedure for dismissing that person where he or she was also the designated head of paid service. Once that point is reached, I can well understand Mr Jones's criticisms of the infelicitous and ill-judged language and drafting of the letter of 8 July. He had at least 10 criticisms if not more of the language and terminology used - all of some cogency, not least the seeming conflation of the two issues: the post of Chief Executive and the dismissal (if such be the case) of the designated head of paid service. Indeed much of the dispute in this case was brought about by the unfortunate wording of this letter. But it has to be remembered that the letter is just that; it is not a lease or mortgage and must be read reasonably and sensibly and in context as it would be understood by a reasonable person receiving it with relevant knowledge. Thus read I am persuaded by Mr Coppel as to the letter's effect. It seems to me that the Council was indeed well alive to the dilemma posed above and sought to negotiate a tricky minefield to deal with the issue of the post of Chief Executive, as well as the employment and statutory rights of the person in that post who was also the designated head of paid service. Mr Jones submitted the Council confused and conflated these issues as one. That is understandable because the same officer was both Chief Executive and the designated head of paid service. I agree, as noted previously, that the letter of 8 July does not, at first reading, assist in dispelling this confusion and conflation but set in its context (and not entirely without the benefit of hindsight) it is reasonably clear what was going on. As Mr Coppel conceded the letter was attempting to bring a number of threads together albeit it did not convey that perfectly but, as he also submitted, the overall thrust was clear: that a final decision would be made on 4 August 2011. The "threads", reading the letter I hope reasonably, were these: •    First, the Employees' Committee had decided to "delete" the post of Chief Executive; •    Second, if implemented that would result in the claimant's employment ending by reason of redundancy; •    Third, however, that (i.e. abolition of the post of Chief Executive) was subject to approval by full Council; •    Fourth, the 2001 Regulations also set out a procedure to be followed in relation to dismissal of a person who was the designated head of paid service; •    Fifth, that procedure also included approval by the full Council; •    Sixth the local authority was endeavouring to observe not only that procedure (under the 2001 Regulations) but also the principles applicable on redundancy including affording the claimant a right of appeal; •    Seventh, accordingly, the claimant had a right of appeal against the decision to delete the post of Chief Executive and her consequent dismissal by reason of redundancy in view of that deletion. The whole implication of this unfortunately worded letter is that the decision to abolish the post of Chief Executive was supported by the Employees' Committee but the decision on that was for the full Council. Since the abolition would lead to her redundancy and termination of employment that also invoked the 2001 Regulations since she was the designated head of paid service. That too was something for the full Council. In short her appeal, representations, call it what you will, should all be made to the full Council. That, as I said, was where the focus lay. That the claimant and her advisers understood that this might at least be the implications of the letter is nowhere more graphically illustrated than by the fact that they responded by the submission of the 2 page letter and 11page appeal from her solicitors enclosing her detailed appeal. What the letter of 8 July should ideally have done (and did not do) is draw a clearer distinction between the three crucial aspects of the whole matter: deletion or non-deletion of the post of Chief Executive; the consequences to the claimant of that and her right of appeal in the event of redundancy; and the procedure relating to her dismissal as the designated head of paid service which could only be dealt with (under paragraph 6) by the full Council since the Employees' Committee was not dealing (as purported agent for the full Council) with that matter under paragraph 4 at all. Indeed it might have been better if these aspects had been spelt out with specific reference to particular paragraphs of the 2001 Regulations especially as the defendant was also well aware by this point that the claimant was professionally represented. The fact that the letter was also headed "Notice of Redundancy" and then got her effective date of termination of employment wrong (and accordingly her severance entitlement also wrong) also did not help. Thus whilst the letter referred to the 2001 Regulations it is clear from the history of events and the minutes of the Employees' Committee that this Committee was concerned only with the question whether the post of Chief Executive should be retained. If not retained certain consequences might flow, but these were matters for the full Council not the Employees' Committee. Accordingly, I accept Mr Coppel's submission that paragraph 4 of Schedule 1 to the 2001 Regulations is not engaged at all. The Employees' Committee was not tasked, as the agent of the local authority, with dismissing the claimant. That decision was for the full Council. Nor is there anything to suggest that paragraph 6 was not complied with. Once the decision of the full Council was clear, the letter of 12 August 2011 confirming the notice period expired on 10 November 2011 was an obvious mistake which was corrected by the letter of 16 February 2012, at least for the purposes of this court. Grounds 2-5 It is convenient to deal with Grounds 2-5 of Mr Jones' case on behalf of the claimant together. Grounds 2-3 (the involvement of Sir Peter Soulsby and Cllr Palmer) can be taken together since they both involve the same point. It is said Cllr Palmer should not have chaired the Employees' Committee and was in a position of conflict (as potential Deputy Mayor), and did not declare his interest. Whether he did or not does not seem to me to much matter. Given that the focus was on what the full Council decided, both quite properly absented themselves from the debate and vote of the 4 August. As to Ground 4 (failure to consider relevant material) whilst Mr Jones rightly accepted that this court is not concerned with the question whether Leicester City Council is better run with or without a Chief Executive and that that was a matter for the Council, this ground seemed to detract somewhat from that proposition. Nevertheless it has, in my judgment, no real substance. The claimant had every opportunity to put her case to the Council and did so both herself and through her solicitors on a number of occasions. It seems to me that Mr Coppel is right on this fourth ground; there is every indication that the Council gave careful and detailed consideration to the policy question: should the role of Chief Executive be retained or not and the claimant's points in that regard (as well as her personal position) were fully and carefully considered. In so far as article 6 was engaged at all, the claimant in my judgment was given a very fair hearing overall. As to Ground 5 (irrationality and the disclosure of the claimant's personal medical condition to the media) I entirely accept that the disclosure of her personal medical condition to the media should not have happened (as the defendant accepted). Mr Jones however argues that this, together with other the factors, rendered the entire process and procedure involving her redundancy and dismissal unfair and amounted to a serious breach of article 8. Even considered with or without his other factors or grounds, in my judgment this is simply overstating the case. Mr Coppel argues that the claimant has a right of recourse under the Data Protection Act 1998. That is as may be, I prefer to express no view on that point, but in my judgment the disclosure to the media and thereby to the public whilst it should not have happened does not vitiate and has not vitiated the entire process. I am confident that her employers (the Council) would have been entitled to know why she was off work for such extended periods. There is even an arguable case, in my own tentative view, that as the Chief Executive of a public authority there was a legitimate interest in knowing, at least in general terms, that she was ill, if not the details. Mr Jones also sought to complain of the way his client's complaint about these revelations to the media were dealt with (or not dealt with). He complained of bad faith or bad practice. In my judgment all this served to do was to confuse the real issue – was the claimant's dismissal lawful – with a number of peripheral issues. In my judgment therefore this Ground also fails. Alternative Remedies I am concerned in this case, as I have said, with public law remedies, not private law. In any event this is a case where the claimant has alternative remedies: the Employment Tribunal and is still well able to pursue her stayed application. Nothing I have said in this judgment should affect the substantive merits of that application whatever they are (since I have seen none of the papers presented to the Tribunal). The post the claimant claims to have has lost is that of Chief Executive and "Head of Paid Service". In truth she was never "Head of Paid Service" (capital letters), she was the Chief Executive, but was also, as an officer of the defendant, designated as head of their paid service as explained above. If she was dismissed as an officer of the local authority she inevitably lost her designated status. None of this however prevents her continuing with her reference to the Employment Tribunal in respect of her loss of employment. Conclusion It follows that in my judgment, despite the infelicitous wording of the letter of 8 July, there has been no material irregularity, unlawfulness, unfairness or irrationality in the decision to dismiss her as Chief Executive and as a person who was the designated head of paid service. The claimant had a full opportunity to make representations to the Council which considered and debated them carefully and at length. I note that the reasons expressed by HHJ Langan QC for refusing permission on paper were expressed as follows: "(1) The letter of 8 July 2011 was an ill-judged one, in that certain parts of the letter can be read as demonstrating that the end of the road with regard to [the claimant's] employment would inevitably be reached on 10 November 2011. The true position was, however, that only the full Council could dismiss her, and so the focus has to [be] on the meeting held on 4 August. (2) With regard to that meeting, (i) [The claimant] put her case to the Council in writing and at length; (ii) Sir Peter Soulsby and Mr Rory Palmer absented themselves; (iii) The question of dismissal was debated for many hours. It seems to me that an attack on the procedure followed is not arguable with any prospect of success. (3) If [the claimant] is entitled to reinstatement and/or damages, those remedies are available in the Employment Tribunal proceedings." Having had the advantage of fuller argument and debate, I nevertheless in substance respectfully agree, albeit I have expressed my reasons far less succinctly. It is nevertheless an apt summary of my reasons for dismissing the application. Note 1    See Hearing Bundle, pp. 125A-C (page references are to this bundle).    [Back] Note 2    See p. 172, item (3).    [Back] Note 3    Page 177.    [Back] Note 4    Pages 179-180.    [Back] Note 5    See Minutes, pp. 261-268.    [Back] Note 6    Pages 181-193.    [Back] Note 7    Pages 269-287.    [Back] Note 8    Pages 346-400.    [Back] Note 9    See pp. 395, 396 and 400.    [Back]

COURT OF APPEAL FOR ONTARIO CITATION: Boehme (Re), 2021 ONCA 831 DATE: 20211122 DOCKET: C69027 Hoy, Coroza and Sossin JJ.A. IN THE MATTER OF:  Ralph Peter Boehme AN APPEAL UNDER PART XX.1 OF THE CODE Ralph Peter Boehme, acting in person Erin Dann, appearing as amicus curiae Nicholas Hay, for the respondent, the Attorney General of Ontario Gavin S. MacKenzie, for the respondent, Ontario Shores Centre for Mental Health Sciences Heard: November 16, 2021 On appeal against the disposition of the Ontario Review Board dated, December 15, 2020, with reasons dated January 13, 2021. REASONS FOR DECISION [1] On August 23, 2011, the appellant was found not criminally responsible by reason of mental disorder on charges of uttering threats to cause death or bodily harm and failure to comply with a probation order. He has been under the jurisdiction of the Ontario Review Board since that time. His current diagnoses are delusional disorder and alcohol use disorder. [2] The appellant appeals the Board’s disposition of December 15, 2020, granting him a conditional discharge. He argues that the Board’s finding that he continues to pose a significant risk to public safety is unreasonable. The index offence did not involve violence and he does not have a history of violent aggression. He submits there was no evidence before the Board that he would not pursue his grievances through appropriate legal channels. He has behaved well at his residence and has not missed any appointments at the hospital. He wishes to reside at the apartment he occupied at the time of the index offence. He seeks an absolute discharge. [3] Amicus curiae submits that the Board erred by not fully exercising its general inquisitorial powers and requests that the Board be directed, or urged, at the appellant’s next hearing, to ensure adequate efforts are being taken to further the appellant’s reintegration in the community, despite the seemingly intractable nature of his delusional disorder. [4] We are not persuaded that the Board’s finding that the appellant continues to pose a significant risk was unreasonable. The appellant’s treatment team was clear that absent the Board’s supervision, the appellant “would almost certainly return to substance abuse, discontinue his medication (particularly clozapine), gravitate towards inappropriate housing, and pursue the victim of the index offence (and perhaps others by whom he felt wronged or slighted) in a harassing and threatening manner causing serious psychological harm.” The Board was entitled to accept that assessment. [5] Nor are we persuaded that there is any basis to interfere with the Board’s exercise of its general inquisitorial powers. [6] On the appellant’s appeal of the Board’s previous disposition, amicus argued that the Board failed to properly inquire into what it submitted was a treatment impasse. The court rejected that argument, finding that there was little in the record to establish that there was an impasse: Boehme (Re) , 2020 ONCA 735. However, the court added this, at para. 5: That said, the appellant has been under the supervision of the Board since 2011. We are concerned that there has been a lack of real progress in addressing the appellant’s condition since that time. The evidence does show that, at least recently, the appellant’s medical team has been considering alternate diagnoses and other forms of treatment. We would urge the Board to look closely at these efforts at the appellant’s next review (which is to be held shortly) and ensure that adequate steps are being taken to try and advance proper treatment of the appellant’s condition. [7] Amicus argues that the Board failed to heed this direction. In particular, it failed to probe the appellant’s treating physician Dr. Hartfeil’s explanation that the appellant derived “very little benefit” from the alternate form of treatment, namely one-on-one cognitive behavioural therapy, that had been under consideration at the time of the previous hearing and was “not willing to participate any further”. Amicus says that the Board should have asked what further alternative forms of treatment or therapy could be tried and asked why there was “very little benefit”. Amicus suggests that there may have been “very little benefit” because of the need to provide sessions by phone or video because of the COVID-19 pandemic, or because at the time the appellant was overusing lorazepam to treat his anxiety. Similarly, amicus argues that the Board should have asked the appellant why he was unwilling to participate in this therapy. [8] Amicus concedes that this is not a situation where there is a treatment impasse. The appellant’s situation has improved, as reflected in his conditional discharge. The treatment team found an appropriate treatment for the appellant’s anxiety, which the treatment team explained contributes to his use of substances and “possibly also contributes to his sort of obsessionality or preoccupation with his various grievances”, and therefore affects his risk of reoffending. The appellant has developed a better rapport with his treatment team and shown an ability – with the assistance of the treatment team – to manage his risk factors in the community without readmission to hospital. [9] The Board is afforded broad discretion in determining “when additional information is necessary, in [its] view”: Kassa (Re) , 2020 ONCA 543, at para. 34. In our view, this expert Board was fully engaged and appropriately exercised its general inquisitorial powers. It carefully reviewed the court’s endorsement with Dr. Hartfeil and explored whether non-pharmacological treatment could be revisited. Dr. Hartfeil explained that the challenges the appellant faces in benefitting from psychotherapeutic interventions are “most[ly] related to his personality” and “some cognitive deficits” as well. The Board also explored whether an occupational therapist might be able to assist and what could be done to build community-based supports over the upcoming year. Dr. Hartfeil indicated that all of those things could be pursued, and we expect that the Board’s attentiveness to these issues will continue. [10] Accordingly, the appeal is dismissed. “Alexandra Hoy J.A.” “S. Coroza J.A.” “Sossin J.A.”

Case T-465/08 Czech Republic v European Commission (PHARE Programme – ‘Revolving funds’ obtained by the Czech Republic – Reimbursement of amounts paid – Commission decision to offset – Legal basis – Distinct legal orders – Concept of being certain and of a fixed amount – Duty to state reasons) Summary of the Judgment 1. Accession of new Member States to the Communities – Czech Republic – Immediate and full application of Community law – Exceptions – Condition – Express provision (Art. 292 EC; Act of Accession 2003, Art. 33(2)) 2. Accession of new Member States to the Communities – Czech Republic – Global budget commitments entered into under pre-accession financial instruments – Rules applicable as from accession (Act of Accession 2003, Art. 33(2); Council Regulation No 1605/2002, Art. 73(1); Commission Regulation No 2342/2002, Arts 81(1) and 83) 3. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision taking place in a context known to the addressee (Art. 253 EC) 1. Derogations from the application ab initio and in toto of the provisions of Community law concerning pre-accession assistance under the PHARE programme referred to in Article 33(1) of the act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, are allowed, on the basis of Article 33(2) of the act, only in so far as they are expressly provided for by the provisions in question. Article 33(2) of the Act of Accession does not expressly provide for an exception to the provisions of Article 292 EC consisting of the continued application, after the Czech Republic’s accession to the European Union, of the out-of-court methods for settling disputes provided for by the Framework Agreement between the Government of the Czech Republic and the European Commission concerning the participation of the Czech Republic in the European Community’s aid programme. Consequently, the out-of-court methods for settling disputes provided for by the 1996 Framework Agreement are no longer applicable as of the Czech Republic’s accession to the European Union. (see paras 100-102) 2. Article 33(2) of the act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, which is designed to ensure the continuation of expenditure provided for before accession to the European Union under global budget commitments which have not yet been fully implemented at the time of accession, derogates from certain provisions of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, relating to expenditure operations. On the other hand, it is not designed to derogate from the rules of the Financial Regulation relating to recovery. In other words, Article 33(2) of the Act of Accession does not expressly preclude the application of the Financial Regulation and of the Implementing Regulation in respect of recovery operations. Therefore the latter have been governed by the regulations in question since the Czech Republic’s accession to the European Union. In addition, offsetting provided for as a method of recovering amounts receivable by Article 73(1) of the Financial Regulation and by Article 81(1) and Article 83 of Regulation No 2342/2002 laying down detailed rules for the implementation of the Financial Regulation is not expressly excluded by the provisions of Article 33(2) of the Act of Accession. Consequently, that recovery operation is applicable, in the conditions laid down by the regulations in question, to claims resulting from the pre-accession assistance under the PHARE programme referred to in Article 33(1) of the Act of Accession. Consequently, it is for the Commission to establish and recover, including by means of offsetting, any amount relating to the reimbursement of funds received by the Czech Republic within the framework of the PHARE programme, and to that effect the Commission is required to apply and comply with the provisions of the Financial Regulation and of the Implementing Regulation. (see paras 118-122) 3. The purpose of the obligation to state the reasons for an act adversely affecting a person, as provided for in Article 253 EC, is, first, to provide the person concerned with sufficient information to make it possible to determine whether the act is well founded or whether it is vitiated by an error which may permit its validity to be contested before the EU judicature and, second, to enable the latter to review the lawfulness of the decision. The obligation to state reasons therefore constitutes an essential principle of EU law which may be derogated from only for compelling reasons. The statement of reasons must therefore in principle be notified to the person concerned at the same time as the act adversely affecting him, since a failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the act during the proceedings before the EU judicature. The statement of reasons must, however, be appropriate to the measure at issue and to the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him. The statement of reasons required for a decision to offset must be such as to allow precise identification of the claims to be offset, without there being any requirement for the initial reasons used in support of establishing each of these claims to be repeated in the decision to offset. (see paras 162-164) JUDGMENT OF THE GENERAL COURT (Third Chamber) 15 April 2011 (*) (PHARE Programme – ‘Revolving funds’ obtained by the Czech Republic – Reimbursement of amounts paid – Commission decision to offset – Legal basis – Distinct legal orders – Concept of being certain and of a fixed amount – Duty to state reasons) In Case T‑465/08, Czech Republic, represented by M. Smolek, acting as Agent, applicant, v European Commission, represented by P. van Nuffel, F. Dintilhac and Z. Malůšková, acting as Agents, defendant, APPLICATION for annulment of the decision of the Commission of 7 August 2008 to recover by way of offsetting amounts owed by the Czech Republic under the ‘revolving funds’ of the PHARE programme. THE GENERAL COURT (Third Chamber), composed of J. Azizi, President, E. Cremona and S. Frimodt Nielsen (Rapporteur), Judges, Registrar: K. Andová, Administrator, having regard to the written procedure and further to the hearing on 17 September 2010, gives the following Judgment Legal context A – The EC Treaty 1 Article 274 EC states: ‘The Commission shall implement the budget, in accordance with the provisions of the regulations made pursuant to Article 279 [EC…]’ 2 Article 292 EC provides: ‘Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein.’ B – The Act of Accession 3 Article 2 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33) (‘the Act of Accession’) provides: ‘From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act.’ 4 Under Article 10 of the Act of Accession: ‘The application of the original Treaties and acts adopted by the institutions shall, as a transitional measure, be subject to the derogations provided for in this Act.’ 5 Article 33 of the Act of Accession provides: ‘1. Tendering, contracting, implementation and payments for pre-accession assistance under the PHARE programme […] shall be managed by implementing agencies in the new Member States as of the date of accession. […] 2. Global budget commitments made before accession under the pre-accession financial instruments referred to in paragraph 1, including the conclusion and registration of subsequent individual legal commitments and payments made after accession shall continue to be governed by the rules and regulations of the pre‑accession financing instruments and be charged to the corresponding budget chapters until closure of the programmes and projects concerned. Notwithstanding this, public procurement procedures initiated after accession shall be carried out in accordance with the relevant Community Directives.’ C – Framework Agreement between the Government of the Czech Republic and the European Commission concerning the participation of the Czech Republic in the European Community’s aid programme 6 Article 1 of the Framework Agreement of 12 March and 12 July 1996 between the Government of the Czech Republic and the European Commission concerning the participation of the Czech Republic in the European Community’s aid programme (promulgated as Law No 207/1997 Sb.) (‘the 1996 Framework Agreement’), which replaced the Framework Agreement of 7 November 1990 with the Czech and Slovak Federal Republic, provides: ‘In order to promote cooperation between the Contracting Parties with a view to supporting the process of economic and social reform and development in the Czech Republic, the Contracting Parties agree to implement measures in the field of financial, technical, and other forms of cooperation as specified in the said regulation, which shall be financed and implemented within the technical, legal and administrative framework, laid down in this Agreement. The specific details of each measure shall be set out in a memorandum to be agreed between the Contracting Parties [‘the Financing Memorandum’], a model of which is provided in Annex C.’ 7 Pursuant to these framework agreements, various financing memoranda laid down the precise conditions for financing the following projects: – the Financing Memorandum of 1 October 1991, for Project T9106; – the Financing Memorandum of 5 November 1992, for Project CS9203; – the Financing Memorandum of 1 February 1994, for Project CZ9302. 8 Article 5 of the 1996 Framework Agreement provides: ‘Any dispute relating to this Agreement which cannot be resolved by consultation shall be settled according to the arbitration procedure referred to in Annex B.’ 9 Article 18(1) of Annex A to the 1996 Framework Agreement provides: ‘Any question relating to execution or interpretation of the Financing Memorandum or these General Conditions shall be the subject of consultation between the recipient and the Commission, leading, where necessary, to an amendment of the Financing Memorandum.’ 10 Under Annex B to the 1996 Framework Agreement: ‘Any dispute between the Contracting Parties, arising out of the Framework Agreement or a Financing Memorandum, which is not settled by applying the procedures laid down in Article 18 of the General Conditions relating to Financing Memoranda, shall be submitted to arbitration by an Arbitral Tribunal as hereinafter provided. The parties to such arbitration shall be the recipient on the one side and the Commission on the other side. The Arbitral Tribunal shall consist of three arbitrators appointed as follows: – one arbitrator shall be appointed by the recipient [,] – a second arbitrator shall be appointed by the Commission [and] – the third arbitrator […] shall be appointed by agreement of the parties or, if they shall not agree, by the Secretary-General of the United Nations. If either side fail to appoint an arbitrator, such an arbitrator shall be appointed by the [third arbitrator].’ D – The Vienna Convention on the Law of Treaties 11 Article 30(3) of the Vienna Convention of 23 May 1969 on the Law of Treaties (‘the Vienna Convention’) states: ‘When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.’ E – Regulation (EC) No 1266/1999 12 Article 11(1) of Council Regulation (EC) No 1266/1999 of 21 June 1999 on coordinating aid to the applicant countries in the framework of the pre-accession strategy and amending Regulation (EEC) No 3906/89 (OJ 1999 L 161, p. 68) provides: ‘The Commission shall implement the Community aid in accordance with the rules of transparency and the Financial Regulation applicable to the general budget of the European Communities, in particular Article 114 thereof.’ F – The Financial Regulation 13 Article 71(1) and (2) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’), provides: ‘1. Establishment of an amount receivable is the act by which the authorising officer by delegation or subdelegation: (a) verifies that the debt exists; (b) determines or verifies the reality and the amount of the debt; (c) verifies the conditions in which the debt is due. 2. The own resources made available to the Commission and any amount receivable that is identified as being certain, of a fixed amount and due must be established by a recovery order to the accounting officer followed by a debit note sent to the debtor, both drawn up by the authorising officer responsible.’ 14 Under Article 73(1) of the Financial Regulation: ‘The accounting officer shall act on recovery orders for amounts receivable duly established by the authorising officer responsible. He/She shall exercise due diligence to ensure that the Communities receive their revenue and shall see that their rights are safeguarded. The accounting officer shall recover amounts by offsetting them against equivalent claims that the Communities have on any debtor who himself/herself has a claim on the Communities that is certain, of a fixed amount and due.’ 15 The first subparagraph of Article 76(1) of the Financial Regulation provides: ‘The budgetary commitment is the operation reserving the appropriation necessary to cover subsequent payments to honour a legal commitment.’ 16 The first and second subparagraphs of Article 76(2) of the Financial Regulation provide: ‘The budgetary commitment is individual when the beneficiary and the amount of the expenditure are known. The budgetary commitment is global when at least one of the elements necessary to identify the individual commitment is still not known.’ G – The Implementing Regulation 17 Article 7(1), (1a) and (3) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1) (‘the Implementing Regulation’), provides: ‘1. Without prejudice to specific provisions arising from the application of sector-specific regulations, conversion between the euro and another currency by the responsible authorising officer shall be made using the daily euro exchange rate published in the C series of the Official Journal of the European Union. […] 1a. In order to avoid that currency conversion operations have a significant impact on the level of Community co-financing or a detrimental impact on the Community budget, the specific arrangements for conversion referred to in paragraph 1 shall provide, if appropriate, for a rate of conversion between the euro and other currencies to be calculated using the average of the daily exchange rate in a given period. […] 3. For the purposes of the accounts provided for in Articles 132 to 137 of the Financial Regulation and subject to Article 213 of this Regulation, conversion between the euro and another currency shall be made using the monthly accounting exchange rate of the euro. That accounting exchange rate shall be established by the Commission’s accounting officer by means of any source of information he regards as reliable, on the basis of the exchange rate on the penultimate working day of the month preceding that for which the rate is established.’ 18 Under Article 78 of the Implementing Regulation: ‘1. The establishment by the authorising officer responsible of an amount receivable shall constitute recognition of the right of the Communities in respect of a debtor and establishment of entitlement to demand that the debtor pay the debt. 2. The recovery order shall be the operation by which the authorising officer responsible instructs the accounting officer to recover the amount established. 3. The debit note shall be to inform the debtor that: (a) the Communities have established the amount receivable; (b) if payment of the debt is made before the deadline specified, no default interest will be due; (c) failing payment by the deadline referred to in point (b) the debt shall bear interest at the rate referred to in Article 86, without any prejudice to any specific regulations applicable; (d) failing payment by the deadline referred to in point (b) the institution shall effect recovery either by offsetting or by enforcement of any guarantee lodged in advance; […] The authorising officer shall send the debit note to the debtor with a copy to the accounting officer.’ 19 Article 79 of the Implementing Regulation provides: ‘To establish an amount receivable the authorising officer responsible shall ensure that: (a) the receivable is certain and not subject to any condition; (b) the receivable is of fixed amount, expressed precisely in cash terms; (c) the receivable is due and is not subject to any payment time; (d) the particulars of the debtor are correct; (e) the amount to be recovered is booked to the correct budget item; (f) the supporting documents are in order; and (g) the principle of sound financial management is complied with, in particular with regard to the criteria referred to in point (a) of Article 87(1).’ 20 Under Article 81(1) of the Implementing Regulation: ‘The recovery order shall specify: (a) the financial year to which the revenue is to be booked; (b) the references of the act or legal commitment which is the source of the debt and gives rise to the entitlement to recovery; […] (d) the amount to be recovered, expressed in euro; (e) the name and address of the debtor; (f) the deadline referred to in Article 78(3)(b); (g) the possible method of recovery, including in particular recovery by offsetting or enforcement of any guarantee lodged.’ 21 Article 83(1) and (2) of the Implementing Regulation provide: ‘1. Where the debtor has a claim on the Communities that is certain, of a fixed amount and due, relating to a sum established by a payment order, the accounting officer shall, once the deadline referred to in Article 78(3)(b) has passed, recover established amounts receivable by offsetting. […] 2. Before proceeding with any recovery in accordance with paragraph 1, the accounting officer shall consult the authorising officer responsible and inform the debtors concerned. Where the debtor is a national authority or one of its administrative entities, the accounting officer shall also inform the Member State concerned at least 10 working days in advance of his intention to resort to recovery by offsetting. However, in agreement with the Member State or administrative entity concerned, the accounting officer may proceed with the recovery by offsetting before that deadline has passed.’ Facts 22 The objective of the PHARE programme was to guarantee the financing of a set of measures in support of economic and social reforms in the Central and Eastern European countries applying for membership of the European Union. The European Union defined the target spheres for those measures and, at the same time, negotiated the rules for their implementation with those countries, in order to guarantee the most efficient use of what was referred to as ‘pre-accession assistance’. 23 The Czech and Slovak Federal Republic was included in the PHARE programme on the basis of the Framework Agreement between the Czech and Slovak Federal Republic and the Commission of the European Communities of 7 December 1990. This agreement was replaced, as far as the Czech Republic was concerned, by the 1996 Framework Agreement, which was ratified by the President of the Czech Republic as a ‘presidential international agreement’. 24 The 1996 Framework Agreement laid down the general technical, legal and administrative framework for financing and implementing assistance to the process of economic and social reforms and the development of the Czech Republic. 25 The specific conditions for each measure were then established between the Czech Republic and the Commission on a contractual basis in the form of ‘financing memoranda’, a model of which was provided as Annex C to the 1996 Framework Agreement, and of ‘memoranda of understanding’. 26 The ‘financing memoranda’ established the spheres for assistance covered by the programme, the programme budget and the technical aspects of the projects to be implemented within the framework of the programme. These projects were in turn set out in detail in ‘project fiches’ annexed to the financing memoranda. 27 ‘Memoranda of understanding’, which were also international agreements, set out the rights and responsibilities of the contracting parties within the framework of the programme. As a general rule, these documents were limited to defining, amending or specifying the procedures relating to management of the programme and the rights and responsibilities of the bodies involved in implementing it. However, unlike the financing memoranda, they did not define the content of the programme or the objectives of and issues relating to the amount of assistance granted to the projects. These memoranda of understanding were concluded solely with the aim of derogating from the general rules and agreements governing relations between the parties. 28 From 1994 to 1996, the Czech Republic obtained inter alia ‘revolving funds’ from the PHARE programme on the basis of financing memoranda for Project T9106 (SME Programme for the Czech and Slovak Federal Republic), for Project CS9203 (Privatisation, Restructuring and Private Sector Development) and for Project CZ9302 (Private Sector Development). 29 To be more precise, Project T9106 aimed to support small and medium-sized enterprises, notably by introducing them to entrepreneurship issues, by establishing an appropriate legal framework and by putting in place mechanisms facilitating access to credit. The objectives of Project CS9203 were privatisation of the economy, restructuring and the development of the private sector in what was then the Czech and Slovak Federal Republic, notably for regions at a particular disadvantage. Finally, Project CZ9302 related to restructuring particular economic sectors and especially the banking sector, to developing export-oriented sectors of industry and to supporting the institutional changes needed for the smooth running of a market economy. 30 Thus, over the course of the period from 5 October 1994 to 2 August 1996, the Czech Republic received six payments from the Commission representing a total amount of EUR 13 031 971.97. 31 These funds were first managed by the Ministry of the Economy of the Czech Republic, then by the Ministry for Regional Development. The latter was also responsible for implementing the funds. 32 The Commission notified the Czech Republic, by a letter with reference D(2008)REG 102477, of a decision dated 28 May 2008 (‘the decision of 28 May 2008’) to recover a total amount of 234 480 000 Czech crowns (‘CZK’) in connection with projects T9106, CS9203 and CZ9302. To be more precise, this amount corresponded to payments made to the Regionální fondy, a.s. (Regional Funds Inc.) amounting to CZK 144 000 000, to the Českomoravský podnikatelský fond, spol. s r.o. (Czech-Moravian Enterprise Fund Ltd) amounting to CZK 4 429 000, and to the Regionální podnikatelský fond, spol. s r.o. (Regional Enterprise Fund Ltd), amounting to CZK 86 051 000. A debit note with the reference number 3230805779 was attached to this decision (‘the debit note’). 33 The decision of 28 May 2008 was taken following the finding of irregularities in the management of Community funds, since these funds had been used, according to the Commission, for purposes other than those for which they had been awarded and had not been managed in compliance with the principle of sound financial management. 34 The debit note, with a deadline of 7 August 2008, related to an amount of EUR 9354 130.93, corresponding to CZK 234 480 000 converted using an exchange rate established in accordance with the provisions of Article 7(1), (1a) and (3) of the Implementing Regulation. 35 The Vice-Minister for Regional Development of the Czech Republic sent a letter to the Commission, dated 8 July 2008. He alleged, in essence, that there was a problem with the exchange rate applied, that neither the European Anti-fraud Office (‘OLAF’) investigation procedure nor the judicial proceedings before the Czech courts had finished and, finally, that, under the Framework Agreement between the Czech Republic and the Commission governing the PHARE programme, all disputes should be settled by negotiation and subject to arbitration proceedings. Consequently, he asked the Commission to cancel the debit note. 36 A meeting between the parties took place on 14 July 2008. 37 On 23 July 2008, the Government of the Czech Republic adopted Decision No 977, by which it decided not to reimburse the debit note; the Commission was informed of this on 29 July 2008. 38 The Commission replied to this letter by a letter of 4 August 2008, in which it essentially reiterated its position. 39 Since the Czech Republic did not fulfil its obligation to pay the amount of EUR 9 354 130.93 by 7 August 2008, the Commission decided to offset its claim against two amounts due to the Czech Republic under the European Social Fund (ESF), with reference numbers ESF-2003CZ161P0004 and ESF‑2003CZ053D0001, amounting to a total of EUR 10 814 475.41. The Czech Republic was notified of this decision by a letter dated 7 August 2008, with reference number BUDG/C3 D (2008)10.5-3956 (‘the contested decision’). 40 The Czech Republic sent a letter to the Commission on 26 August 2008 to express its disagreement with the Commission and to reiterate, in essence, the arguments which it had submitted in its letter of 8 July 2008. Forms of order sought 41 The Czech Republic claims that the Court should: – annul the contested decision; – order the Commission to pay the Czech Republic the amount offset of EUR 9 354 130.93 and the corresponding interest for late payment; – order the Commission to pay the costs. 42 The Commission contends that the Court should: – dismiss the action; – order the Czech Republic to pay the costs. Law 43 The Czech Republic raises three pleas in law in support of its action. 44 It submits, in essence, firstly, that the Commission exceeded its powers by adopting the contested decision on an incorrect legal basis, secondly, that the contested decision was issued in breach of the conditions laid down for offsetting by the Financial Regulation and by the Implementing Regulation and, thirdly, that the contested decision contains no statement of reasons. 45 It is appropriate to examine the first two pleas together. A – The first plea in law, alleging that the contested decision was adopted on an incorrect legal basis, and the second plea in law, alleging breach of the conditions laid down for offsetting by the Financial Regulation and by the Implementing Regulation 1. Arguments of the parties 46 By its first plea in law, the Czech Republic submits, in essence, that the legal relationship at issue in the present case, relating to the use of funds from the PHARE programme, arose before its accession to the European Union, at a time when it was a non-member country from the point of view of Community law. Use of the resources from this programme was governed by rules contained in international agreements between the Czech Republic, as a sovereign state and a person recognised as having rights and duties in international law, and the Commission, representing the Community, as a distinct person recognised as having rights and duties in international law. 47 It maintains that although Community law became binding on it when it acceded to the European Union, this is only within the limits provided for by the Treaty of Accession and Article 2 of the Act of Accession. 48 According to the Czech Republic, the Act of Accession partly amended the international agreements relating to the use of funds from the PHARE programme as regards, firstly, establishing which Member State bodies would, from the date of accession, manage the allocated resources and, secondly, the rules relating to the organisation of final inspections by the Commission. However, it maintains that, for other spheres, the Act of Accession, inter alia in Article 33(2), explicitly left in force the existing legal arrangement – namely, an arrangement which falls outside the scope of the EC Treaty, not only for commitments made before accession but also for commitments made during the period after accession. 49 According to the Czech Republic, the Financial Regulation, on the basis of which the contested decision was adopted, cannot be classified as a rule or regulation of the pre-accession financing instruments within the meaning of Article 33(2) of the Act of Accession. 50 Thus it asserts that the concept of a rule within the meaning of Article 33 of the Act of Accession relates to international agreements between the European Union and acceding states – a category to which the Financial Regulation does not belong – and, indeed, that this regulation does not appear on the exhaustive list of regulations mentioned in the Act of Accession. 51 Furthermore, even if that list were not exhaustive, the Financial Regulation could still not be classified, given its purpose, in the category of regulations of the pre‑accession financing instruments. While the purpose of these instruments is to lay down rules relating to European Union aid to applicant countries in the context of various programmes, the role of the Financial Regulation is to impose rules relating, firstly, to establishing and implementing the general budget of the Communities and, secondly, to submitting and auditing accounts. 52 Therefore, in essence, the Czech Republic maintains that applying the Financial Regulation to commitments deriving from the legal relationship at issue in the present case, which are covered by Article 33 of the Act of Accession, infringes those later provisions. 53 In addition, the Czech Republic puts forward the argument that, in essence, in its current wording, Article 155 of the Financial Regulation no longer refers to pre‑accession funds, with the result that this regulation is not applicable to those funds. It also maintains that although, under the earlier version of Article 155, the Financial Regulation could be applied to the legal relationships which existed between the European Union and non-member countries, this possibility was subject to the existence of an agreement between the parties concerned. 54 Furthermore, the Czech Republic asserts that Article 73 of the Financial Regulation, which is directed at the European Union’s accounting officer, provides only for offsetting in favour of the European Union. Thus it maintains that the European Union’s accounting officer may resort to offsetting only on condition, firstly, that the country concerned is a Member State and, secondly, that the commitment concerned arises from that Member State’s membership of the European Union and is covered by the Financial Regulation. Therefore, the European Union’s accounting officer cannot resort to offsetting in regard to a non‑member country without the possibility of doing so having been decided in advance. No offsetting mechanism was provided for in the 1996 Framework Agreement or in the financing memoranda or memoranda of understanding. In addition, offsetting is not a rule generally recognised in international law. 55 Furthermore, the Czech Republic puts forward the argument that the 1996 Framework Agreement and the financing memoranda and memoranda of understanding contain provisions relating to the settlement of disputes arising from the implementation of pre-accession assistance; in a situation such as the one in the present case, these provisions create an obligation to hold mutual consultations and, if necessary, to make later use of an arbitration procedure. 56 The Czech Republic maintains that these rules are still applicable. Consequently, such a mechanism cannot allow disputes between the parties to be settled unilaterally, for example by means of a Commission decision relating to the existence or the amount of a claim in favour of the European Union budget or by means of a Commission decision seeking to recover the amount concerned through offsetting. 57 The Czech Republic puts forward the argument that this is an exception to the binding nature of Community law for Member States after their accession to the European Union. 58 It points out that, in Case C‑302/04 Ynos [2006] ECR I‑371, paragraphs 36 and 37, the Court held that Community law can be applied in the relevant Member State only with effect from the date of that State’s accession to the European Union and only if the facts relevant to resolution of the dispute occurred after its accession. 59 According to the Czech Republic, Community law became binding on it within the limits laid down in the Treaty of Accession and by Article 2 of the Act of Accession. 60 The conditions for accession take the form of temporary or permanent exceptions to the applicability of Community law, whether primary or secondary legislation, in certain spheres. According to the Czech Republic, such exceptions were provided for in regard to pre-accession assistance, so it follows that the earlier mechanism for settling disputes has remained in force. 61 Consequently the Czech Republic maintains that the application of the Financial Regulation would be in direct conflict with the mechanisms provided for in the event of a dispute relating to the implementation of the 1996 Framework Agreement. 62 The Czech Republic also disputes the Commission’s argument that the 1996 Framework Agreement is not applicable in its entirety, in the light of Article 30(3) of the Vienna Convention. 63 According to the Czech Republic, the Vienna Convention applies only to treaties between states, since similar rules relating to treaties between states and international organisations could not be adopted at international level. In addition, Article 30(3) of the Vienna Convention requires that all the parties to an earlier treaty and to a later treaty be the same. The Commission, acting at the time for the European Community and in its name, was a contracting party to the 1996 Framework Agreement, whereas neither the Commission nor the European Community was subsequently party to the Accession Treaty. Moreover, even if the rule expressed by Article 30(3) of the Vienna Convention constitutes an international custom, persons recognised as having rights and duties in international law may, in their mutual relations, agree that, under a later treaty, the rules arising from an earlier treaty continue to apply to certain legal relationships. Consequently, such rules preclude the applicability of provisions which differ from or contradict the earlier treaty. Otherwise, the Agreement would be meaningless in that regard and would contradict the general principle of international law pacta sunt servanda. 64 The effect of this, according to the Czech Republic, is that rules established by agreement concerning the settlement of disputes about pre-accession assistance apply even after accession to the European Union and preclude the implementation of another mechanism, namely the unilateral offsetting provided for by the Financial Regulation. 65 It also follows, according to the Czech Republic, that the principle that anything which is not prohibited by international law is permitted cannot be applied to a situation where the parties have agreed a particular arrangement for their mutual relations. Furthermore, offsetting is implicitly prohibited, since it is clearly contrary to the agreed procedures for settling disputes. 66 The Czech Republic adds that Article 307 EC expressly allows treaties concluded by Member States before the date of their accession to the European Union to remain in force, to the extent that they are not contrary to Community law. Moreover, even where they are, such treaties are not void ipso facto. The second subparagraph of Article 307 EC provides for the possibility of eliminating any such incompatibility gradually. 67 The Czech Republic also denies that offsetting is a customary rule of public international law or a general principle of public international law. 68 In the present case, the offsetting operation is between two persons recognised as having rights and duties in international law who are in a situation of mutual equality and, in those circumstances, according to the Czech Republic, express provision should have been made for the power to offset unilaterally. 69 Similarly, the Czech Republic submits, in essence, that offsetting cannot be viewed as a general principle of Community law, since, firstly, it is not a matter of a principle which draws on the shared constitutional traditions of the Member States and, secondly, the case-law to which the Commission refers does not say that offsetting constitutes such a principle. In this respect, the Czech Republic disputes the Commission’s interpretation of the judgment of the Court of Justice in Case 250/78 DEKA v EEC [1983] ECR 421. 70 Moreover, the Czech Republic submits that the approach adopted by the Commission in implementing external aid measures binds only the Commission and not the Czech Republic, which was a non-member country when the pre‑accession assistance was granted. The effect of this is that the Commission cannot itself rebut its internal rules relating to implementation of the budget. For these rules to be enforceable, it would have been necessary for the Czech Republic to agree to abide by them in the 1996 Framework Agreement, which it did not. 71 The Czech Republic also asserts that, although the preamble to the 1996 Framework Agreement refers to Council Regulation (EEC) No 3906/89 of 18 December 1989 on economic aid to the Republic of Hungary and the Polish People’s Republic (OJ 1989 L 375, p. 11), that fact cannot provide a basis for applying the Financial Regulation to the present case. The only provisions of the Financial Regulation to which Regulation No 3906/89 relates concern the possibility of the Commission delegating some of the tasks of public authority to certain bodies. 72 Moreover, the Czech Republic maintains, in essence, that Case T‑122/06 Helkon Media v Commission [2008] ECR II‑00210 does not preclude use of the concept of the relevant legal order as far as offsetting is concerned. In the present case, the relevant law does not provide for such a mechanism. 73 Accordingly, the Czech Republic considers that, in offsetting on the basis of Article 73(1) of the Financial Regulation, the Commission misused its powers. 74 As regards the second plea in law, the Czech Republic submits in essence that, even if the Financial Regulation is applicable in the present case, the conditions which it contains relating to the reciprocity of claims or to whether the claim to be offset is certain are lacking. 75 The Czech Republic submits, in this connection, that only the Arbitral Tribunal provided for by the pre-accession agreements could rule on the amount of a possible claim. According to the Czech Republic, the effect of Joined Cases T‑346/02 and T‑347/02 Cableuropa and Others v Commission [2003] ECR II‑4251, paragraph 225, is that neither the Commission nor the Court has such power. 76 In that respect, it disputes the Commission’s argument that it is contradictory to maintain that, if the Court is not competent to rule on the existence and, where relevant, on the nature and the amount of the claim, it cannot rule on offsetting and therefore cannot annul the contested decision. Thus the Czech Republic submits that, even if the Financial Regulation is applicable in the present case, it is not possible to circumvent the procedure provided for by the 1996 Framework Agreement in order to determine the existence and amount of any claims due – that is to say, the arbitration procedure must be used, since a unilateral decision by the Commission cannot be sufficient in that regard. 77 The Czech Republic adds that it is necessary to distinguish the power to assess the validity of the contested decision from the power to settle a dispute pursuant to the 1996 Framework Agreement. In the light of the procedure for settling disputes provided for by the 1996 Framework Agreement, the Court cannot therefore assess substantive questions relating to a claim arising on the basis of that agreement. 78 In any event, the Czech Republic maintains that the Court, even supposing it is competent to establish that the conditions for offsetting have been satisfied, must hold that the claims to be offset are governed by different legal orders. 79 It maintains, in essence, that the claim made by the Commission is in reality governed by international law, a situation unaltered by the Czech Republic’s accession to the European Union. 80 By contrast, the legal bases of the Czech Republic’s claim on the Commission, which relates to interim payments on two operational programmes financed from structural funds, are Article 161 EC and Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1). The Czech Republic’s claim is therefore governed by the Community legal order. 81 It was held in Case C‑87/01 P Commission v CCRE [2003] ECR I‑7617, paragraphs 61 and 62, that offsetting claims governed by two different legal orders is possible only if the conditions laid down by both legal orders are satisfied in that regard. 82 In this connection, the Czech Republic maintains that general international law does not provide for the conditions for, or even the possibility of, offsetting claims. Similarly, the 1996 Framework Agreement, the financing memoranda and the other rules expressly agreed between the contracting parties or amended by the Act of Accession do not provide for the conditions for, or even the possibility of, offsetting claims. Therefore the claim made by the Commission on the Czech Republic may not be offset. 83 In addition, the Czech Republic maintains that the condition of reciprocity provided for by Article 73(1) of the Financial Regulation is not limited solely to establishing that the claimant and the debtor are the same. According to the Czech Republic, the legal basis of the claim to be offset must also be taken into account. 84 It adds that the condition of reciprocity also presupposes that the fact that the two claims to be offset are expressed in different currencies will also be taken into consideration. It does not call into question the possibility of offsetting such claims. However, it maintains that clear rules must be laid down for converting the currencies at issue. That was not the situation in the present case. 85 With regard to whether the claim at issue is certain, the Czech Republic puts forward the argument that the claim arose in the context of an agreement between parties. Therefore no party could impose a decision on another so far as concerns disputes arising from the relationship at issue. A dispute of this type could be settled only by agreement of the parties or by decision of an independent authority, under the arbitration procedure provided for by the 1996 Framework Agreement. 86 According to the Czech Republic, the Commission unilaterally established the existence and the amount of the claim at issue. It argues, however, that, in the context of the correspondence exchanged with the Commission (letters sent to the Commission on 9 July 2008 and 29 July 2008), it called into question the method for determining the amount to be reimbursed and the detailed rules for applying the exchange rate. According to the Czech Republic, since it was seeking amicable settlement of the dispute, this exchange of letters complied with the 1996 Framework Agreement. The Czech Republic maintains that it was obliged to bring the present action, however, because the Commission adopted the contested decision 87 The Czech Republic maintains in addition that, since the amount of the claim was disputed, the claim at issue was not certain and therefore could not be offset. 88 Furthermore, the Czech Republic puts forward the argument that irregularities relating to the use of financial resources granted to it under the PHARE programme have not been established once and for all. The Commission is basing its arguments mainly on the instigation of criminal proceedings and on investigations undertaken by OLAF, yet none of these investigations has been completed. According to the Czech Republic, the final amount which it will have to repay cannot therefore be determined with absolute certainty, at least until the results of those various investigations are known. 89 In this connection, the Czech Republic maintains that the decision of 28 May 2008 does not constitute proof of illegal use of the amounts granted. The Czech Republic considers that that letter does not explain the grounds on which the activities at issue are regarded as irregular. Nor does it give any details of the allocated resources to which those irregularities relate. In addition, the Czech Republic takes the view that the Commission’s conjectures relating to the investigations undertaken by OLAF are contradictory. 90 In any event, according to the Czech Republic, a finding that an offence has been committed would not be decisive for understanding the way in which the resources at issue were spent or for assessing the existence and the amount of the claim at issue. 91 In addition, the Czech Republic disputes the method of calculating the total amount which it must reimburse. It asserts that, expressed in Czech crowns, this amount – CZK 234 480 000 – represents 69.98% of the payments received by the Regionální fondy, a.s., the Regionální podnikatelský fond, spol. s r.o. and the Českomoravský podnikatelský fond, spol. s r.o. between 5 October 1994 and 2 August 1996, which totalled CZK 335 087 448.65. It deduces from this that the total amount claimed from it in euros should also correspond to 69.98% of the total payments at issue expressed in euros. Since the total of these payments was EUR 9 839 490, the amount claimed from it should therefore be set at EUR 6 885 258.25. The Czech Republic asserts that the Commission has required reimbursement of a total amount of EUR 9 354 130.93. Furthermore, according to the Czech Republic, the method of calculation which it advocates, which is the only one possible, neutralises trends in the exchange rate between the Czech crown and the euro. 92 In this connection, the Czech Republic asserts that, when it obtained pre-accession assistance in the years 1994 to 1996, the standard exchange rate varied between CZK 33 and CZK 35 to EUR 1. The Commission, in order to calculate the payment at issue, used the current exchange rate of CZK 25.067 to EUR 1. According to the Czech Republic, this approach does not take account of the economic situation existing at the time when the pre-accession assistance was obtained and used. If this approach were taken, the Czech Republic would be paying for exchange rate trends. Thus the Commission is calling for reimbursement of amounts whose value expressed in euros exceeds the value that should be requested in Czech crowns. The Commission would therefore profit unjustifiably from the strengthening of the Czech crown against the euro. This situation could also be described as unjust enrichment of the European Union, since the Czech Republic would be obliged to pay an amount exceeding the pre‑accession assistance which it actually obtained. That is why, according to the Czech Republic, the only method which neutralises the impact of the stronger CZK/euro exchange rate is, first of all, to calculate the payment requested, expressed in Czech crowns, as a proportion of the total pre-accession assistance obtained for the Regionální fondy, a.s., the Regionální podnikatelský fond, spol. s r.o. and the Českomoravský podnikatelský fond, spol. s r.o., also expressed in Czech crowns, and then, secondly, to apply that fraction to the amount, expressed in euros, corresponding to the total pre-accession assistance granted to those Funds. 93 Finally, the Czech Republic maintains that the Implementing Regulation is not applicable to the legal relationships arising from the 1996 Framework Agreement, so that it cannot legally justify the exchange rate established in the present case by the Commission. 94 The Commission challenges all those arguments. 2. Findings of the Court a) The Commission’s competence and the application of the Financial Regulation and of the Implementing Regulation 95 Under Article 2 of the Act of Accession, from the date of accession to the European Union, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank (ECB) before accession are binding on the new Member States and apply in those States under the conditions laid down in those Treaties and in the Act of Accession. 96 Article 10 of the Act of Accession states that the application of the original Treaties and acts adopted by the institutions are, as a transitional measure, subject to the derogations provided for in the Act of Accession. 97 It follows from Articles 2 and 10 of the Act of Accession that the Act is based on the principle that the provisions of Community law apply ab initio and in toto to new Member States, derogations being allowed only in so far as they are expressly provided for by transitional provisions (see, to that effect, C‑233/97 KappAhl [1998] ECR I‑8069, paragraph 15, and the case-law cited). 98 Article 33(2) of the Act of Accession, which provides that global budget commitments made before accession under the pre-accession financial instruments, including the conclusion and registration of subsequent individual legal commitments and payments made after accession, continue to be governed by the rules and regulations of the pre-accession financing instruments and to be charged to the corresponding budget chapters until closure of the programmes and projects concerned, appears in Title I, ‘Transitional measures’, of Part Four, ‘Temporary provisions’ of the Act in question. 99 Article 33(2) of the Act of Accession, in that it provides for an exception to the application of Community law after the Czech Republic’s accession to the European Union, must therefore be interpreted restrictively (see, to that effect, KappAhl, paragraph 18, and the case-law cited). 100 It follows that derogations from the application ab initio and in toto of the provisions of Community law concerning pre-accession assistance under the PHARE programme referred to in Article 33(1) of the Act of Accession are allowed, on the basis of Article 33(2) of the Act, only in so far as they are expressly provided for by the provisions in question. 101 Contrary to the Czech Republic’s argument, Article 33(2) of the Act of Accession does not expressly provide for an exception to the provisions of Article 292 EC consisting of the continued application, after the Czech Republic’s accession to the European Union, of the out-of-court methods for settling disputes provided for by the 1996 Framework Agreement. 102 Consequently, it must be held that the out-of-court methods for settling disputes provided for by the 1996 Framework Agreement are no longer applicable as of the Czech Republic’s accession to the European Union. 103 The Czech Republic’s arguments that only the Arbitral Tribunal was entitled to establish the existence of a claim in the context of the present case must consequently be disregarded. 104 The same applies to the Czech Republic’s arguments that the document which the Commission sent it on 28 May 2008 constituted a first stage in the consultation procedure provided for by the 1996 Framework Agreement. Since this procedure is no longer applicable as of the Czech Republic’s accession to the European Union, the decision of 28 May 2008 cannot constitute its first stage. 105 Furthermore, the Czech Republic cannot properly submit that neither the Financial Regulation nor the Implementing Regulation is part of the rules and regulations of the pre-accession financing instruments referred to in Article 33(2) of the Act of Accession. 106 Under Article 274 EC, the Commission implements the budget in accordance with the provisions of the regulations made pursuant to Article 279 EC. 107 Article 33(2) of the Act of Accession must be interpreted restrictively in so far as it provides for an exception to the application of Community law after the Czech Republic’s accession to the European Union (see paragraph 99 above). Consequently, derogations from the application of Community law – that is to say, in the present case, from the provisions of the regulations made pursuant to Article 279 EC, in particular the Financial Regulation and the Implementing Regulation – are allowed only in so far as they are expressly provided for by the transitional provisions in question (see paragraph 97 above). 108 Therefore, in order to establish whether Article 33(2) of the Act of Accession provides for derogation from the application of the Financial Regulation and of the Implementing Regulation, it is necessary to define ‘the rules and regulations of the pre-accession financing instruments’ referred to in that provision. 109 For that purpose, regard must be had to the concept of ‘global budget commitments’ provided for by Article 33(2) of the Act of Accession, which remain, under that provision, governed by those rules and regulations. 110 The Act of Accession does not define the concept of global budget commitments. 111 However, the derogations provided for by the Act of Accession can be understood only in relation to the provisions from which they are intended to derogate. 112 Consequently, reference should be made to Community law and, in particular, to its budgetary provisions, in order to clarify the meaning of the provisions of Article 33(2) of the Act of Accession. 113 The concept of global budget commitment is defined in Section 1, Commitment of expenditure, of Chapter 6, Expenditure operations, in Title IV, Implementation of the budget, of Part One, Common Provisions, of the Financial Regulation. 114 Thus, under the first subparagraph of Article 76(1) of the Financial Regulation, a budgetary commitment is the operation reserving the appropriation necessary to cover subsequent payments to honour a legal commitment. 115 Under the second subparagraph of Article 76(2) of the same regulation, the budgetary commitment is global when at least one of the elements necessary to identify the individual commitment is still not known. 116 The concept of budgetary commitment therefore falls within the scope of expenditure operations as referred to in the Financial Regulation. 117 On the other hand, the concepts of establishing amounts as recoverable and of recovery, which are at issue here, are covered by Sections 3 to 5 of Chapter 5, Recovery, in Title IV, Part One of the Financial Regulation. 118 Consequently, Article 33(2) of the Act of Accession, which is designed to ensure the continuation of expenditure provided for before accession to the European Union under global budget commitments which have not yet been fully implemented at the time of accession, derogates from certain provisions of the Financial Regulation relating to expenditure operations. 119 On the other hand, it is not designed to derogate from the rules of the Financial Regulation relating to recovery. 120 In other words, contrary to the Czech Republic’s argument, Article 33(2) of the Act of Accession does not expressly preclude the application of the Financial Regulation and of the Implementing Regulation in respect of recovery operations. Therefore the latter have been governed by the regulations in question since the Czech Republic’s accession to the European Union. 121 In addition, offsetting provided for as a method of recovering amounts receivable by Article 73(1) of the Financial Regulation and by Article 81(1) and Article 83 of the Implementing Regulation is not expressly excluded by the provisions of Article 33(2) of the Act of Accession. Consequently, this recovery operation is applicable, in the conditions laid down by the regulations in question, to claims resulting from the pre-accession assistance under the PHARE programme referred to in Article 33(1) of the Act of Accession. 122 It must consequently be concluded that it is for the Commission to establish and recover, including by means of offsetting, any amount relating to the reimbursement of funds received by the Czech Republic within the framework of the PHARE programme, and to that effect the Commission is required to apply and comply with the provisions of the Financial Regulation and of the Implementing Regulation. b) Compliance with the procedure laid down by the Financial Regulation and by the Implementing Regulation for recovery of amounts receivable Preliminary observations 123 Pursuant to Article 71(2) of the Financial Regulation, any amount receivable that is identified as being certain, of a fixed amount and due must be established by a recovery order to the accounting officer followed by a debit note sent to the debtor, both drawn up by the authorising officer responsible. 124 Under the second subparagraph of Article 73(1) of the Financial Regulation, the accounting officer may recover amounts by offsetting them against equivalent claims that the European Union has on any debtor who himself/herself has a claim on the European Union that is certain, of a fixed amount and due. 125 Article 78 of the Implementing Regulation provides that the establishment by the authorising officer responsible of an amount receivable constitutes recognition of the right of the Communities in respect of a debtor and establishment of entitlement to demand that the debtor pay the debt. Furthermore, the recovery order is the operation by which the authorising officer responsible instructs the accounting officer to recover the amount established. Finally, the debit note, which is sent by the authorising officer to the debtor, informs the latter that the European Union has established the amount receivable, that no default interest will be due if payment of the debt is made before the deadline specified and that, failing payment by that deadline, the institution may effect recovery either by offsetting or by enforcement of any guarantee lodged in advance. 126 Under Article 79 of the Implementing Regulation, to establish an amount receivable, the authorising officer responsible must ensure inter alia that the receivable is certain and not subject to any condition, that the receivable is of fixed amount, expressed precisely in cash terms, and that the receivable is due and is not subject to any payment time. 127 Finally, it is clear from Article 83(1) and (2) of the Implementing Regulation that, where the debtor has a claim on the European Union that is certain, of a fixed amount and due, relating to a sum established by a payment order, the accounting officer may, once the deadline specified in the debit note has passed, recover established amounts receivable by offsetting, after having informed the debtor – where the latter is a national authority or one of its administrative entities – of his intention to resort to recovery by offsetting, at least 10 days in advance. 128 In other words, therefore, the recovery of an amount receivable identified as being certain, of a fixed amount and due, after it has been established by the authorising officer responsible, requires, firstly, a recovery order drawn up by the authorising officer responsible and sent to the accounting officer and, secondly, a debit note sent to the debtor. 129 The accounting officer acts on recovery orders. Where the debtor himself/herself has a claim on the European Union that is certain, of a fixed amount and due, it is also for him to recover amounts receivable by offsetting them. 130 The accounting officer is required to offset these amounts if the debtor has not done so voluntarily. The decision of 28 May 2008 and the contested decision 131 In the present case, the Commission notified the Czech Republic of a decision dated 28 May 2008 under which the Czech Republic was required to reimburse the amount of CZK 234 480 000, essentially because of irregularities in the management of some PHARE programme funds. 132 That decision was accompanied by a debit note. 133 It is indisputable that the decision of 28 May 2008 is a measure whose legal effects are binding on the Czech Republic and are capable of affecting its interests by bringing about a distinct change in its legal position (see Case C‑147/96 Netherlands v Commission [2000] ECR I‑4723, paragraph 25, and the case-law cited). That decision might therefore have been the subject of an action for annulment under Article 230 EC. 134 The debit note had a deadline of 7 August 2008. 135 It is established that, at that date, the Czech Republic had not paid the amount claimed from it. 136 In addition, it is established that the Czech Republic has contested neither the decision of 28 May 2008 nor the debit note which accompanied it. 137 Consequently, it is for the accounting officer to recover the amount receivable in accordance with the provisions of the Financial Regulation and of the Implementing Regulation, which are applicable pursuant to the provisions of Article 274 EC. 138 In the light of the fact that the Czech Republic has two claims on the ESF, for a total amount of EUR 10 814 475.41, in the present case it is for the accounting officer to offset the amount established in the decision of 28 May 2008, after having warned the Czech Republic at least 10 working days in advance, in accordance with the provisions of Article 83 of the Implementing Regulation, which he did in the contested decision. 139 That conclusion is not called into question by the arguments put forward by the Czech Republic that the claims at issue are not reciprocal and that the Commission’s claim is not certain. – As to whether the claims are reciprocal 140 It should be remembered that the Czech Republic submits, in essence, that only the Arbitral Tribunal provided for by the 1996 Framework Agreement was entitled to establish the amount of any claim which it might have owed to the European Union. According to the Czech Republic, this arbitral tribunal remained responsible under the provisions of Article 33(2) of the Act of Accession for settling disputes relating to the budget commitments covered by the 1996 Framework Agreement. It considers that the Commission’s claim is, in reality, covered by the international legal order and not the Community legal order. Consequently, the claims at issue are covered by two distinct legal orders, and this makes it necessary, according to the case-law, to assess whether the conditions laid down by both those legal orders have been satisfied (Commission v CCRE, paragraphs 61 and 62). It is argued that those conditions are not fulfilled in the present case since, according to the Czech Republic, firstly, public international law does not recognise offsetting and, secondly, the 1996 Framework Agreement, whose substantive provisions remain applicable under Article 33(2) of the Act of Accession, did not provide for offsetting. Therefore the condition of reciprocity has not been satisfied. 141 However, it should be remembered that the mechanism for settling disputes provided for by the 1996 Framework Agreement was no longer applicable as of the Czech Republic’s accession to the European Union (see paragraph 102 above). 142 Moreover, the Financial Regulation and the Implementing Regulation have been applicable to recovery operations since the Czech Republic’s accession to the European Union (see paragraphs 120 and 121 above). 143 Therefore claims resulting from funding allocated within the framework of the PHARE programme should be offset by the accounting officer, under the conditions provided for by the Financial Regulation and the Implementing Regulation, after the Czech Republic’s accession to the European Union when the conditions provided for on that point by the Financial Regulation have been satisfied, since in this connection it is immaterial whether the Commission’s claim is covered by the Community legal order or the international legal order. 144 Therefore the Czech Republic’s arguments, firstly, that the pre-accession agreement does not provide for offsetting and, secondly, that offsetting is not lawful in the international legal order, which – since the claims belong to distinct legal orders – would prevent offsetting, must be rejected. – As to whether the Commission’s claim on the Czech Republic is certain and of a fixed amount 145 It should be remembered that the Czech Republic considers, in essence, that the Commission’s claim is not certain because (a) the context of the relationships between the parties is a contractual one and, if there is a dispute between them, requires the use of an independent body within the framework of an arbitration procedure, (b) the Czech Republic disagrees with the method for determining the amount receivable and with the exchange rate applied and (c) it is not possible to determine the amount which has been improperly used and would have to be reimbursed, as OLAF’s investigations have not been completed. 146 It is clear from Article 79(a) of the Implementing Regulation that a receivable cannot be considered certain if it is subject to any condition. 147 The Czech Republic is not arguing that the Commission’s claim is subject to a condition. It merely pleads that it disputes the amount. In any event, the claim is not subject to any condition. 148 Consequently, it must be held that the receivable is certain within the meaning of Article 79(a) of the Implementing Regulation. 149 Next, it is not disputed that the amount receivable was fixed by the decision of 28 May 2008, which the Czech Republic has not contested. 150 Therefore, it must be held that the receivable is of fixed amount within the meaning of Article 79(b) of the Implementing Regulation. 151 Finally, it is established that the amount receivable is not subject to any payment time and it is therefore due. 152 Accordingly, as far as the Commission’s claim is concerned, the conditions laid down by Article 79 of the Implementing Regulation have been satisfied for the purposes of offsetting by the accounting officer. 153 That finding is not called into question by the Czech Republic’s arguments in support of its second plea. 154 The allegations that the Commission was not competent to establish the amount of the claim and that the Arbitral Tribunal was competent to do so have already been dismissed in the course of analysis of the first plea in law. The mechanism for settling disputes provided for by the 1996 Framework Agreement was no longer applicable as of the Czech Republic’s accession to the European Union (see paragraph 102 above). 155 In addition, the fact that the amount of the claim is contested – since the Czech Republic is critical of the method used to determine it, the exchange rate applied and the fact that the Commission did not wait for the completion of ongoing investigations before fixing the amount – does not mean that it is not certain and of a fixed amount and does not preclude offsetting (see, to that effect, Case T‑231/04 Greece v Commission [2007] ECR II‑63, paragraph 118). 156 The amount receivable was fixed by the Commission in its decision of 28 May 2008, which, since it was not contested within the time-limit for bringing an action, is no longer open to challenge. It follows that the amount fixed by that decision cannot be disputed in the present action. 157 In conclusion, both the first plea in law and the second plea in law must be dismissed. B – The third plea in law, alleging failure to state reasons 1. Arguments of the parties 158 The Czech Republic asserts that the contested decision contains no statement of reasons. Referring to the Financial Regulation is not sufficient in that respect. Moreover, the need for a detailed statement of reasons is all the stronger in situations where the decision concerns complex or technical facts. The persons to whom such decisions are addressed must be able to clearly ascertain the circumstances on which the Commission has based them, notably where the decisions at issue have serious financial consequences for the Member States. 159 Furthermore, the Czech Republic submits that that is in no way altered by the fact that the reasons are partly set out in the earlier informal correspondence exchanged with the Commission. From the point of view of legal certainty or of the conditions established by case-law concerning the statement of reasons on which measures are based, such reasons are not sufficient. 160 Finally, the Czech Republic maintains, firstly, that the Commission refused to grant its request for information on the results of OLAF’s investigations leading to the adoption of the contested decision and, secondly, that the fact that the context of this adoption had come to its knowledge cannot, on its own, constitute a sufficient statement of reasons for the decision at issue. 161 The Commission disputes those arguments. 2. Findings of the Court 162 The purpose of the obligation to state the reasons for an act adversely affecting a person, as provided for in Article 253 EC, is, first, to provide the person concerned with sufficient information to make it possible to determine whether the act is well founded or whether it is vitiated by an error which may permit its validity to be contested before the EU judicature and, second, to enable the latter to review the lawfulness of the decision. The obligation to state reasons therefore constitutes an essential principle of Community law which may be derogated from only for compelling reasons. The statement of reasons must therefore in principle be notified to the person concerned at the same time as the act adversely affecting him, since a failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the act during the proceedings before the EU judicature (see, to that effect, Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II‑4665, paragraphs 138 to 140, and the case-law cited). 163 The statement of reasons must, however, be appropriate to the measure at issue and to the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him (Organisation des Modjahedines du peuple d’Iran v Council, paragraph 141, and the case-law cited). 164 The statement of reasons required for a decision to offset must be such as to allow precise identification of the claims to be offset, without there being any requirement for the initial reasons used in support of establishing each of these claims to be repeated in the decision to offset. 165 In the present case, it is not disputed that the basis of the decision to offset is the decision of 28 May 2008, and the Czech Republic acknowledged this at the hearing. 166 The decision of 28 May 2008 includes a particularly detailed statement of the reasons which led the Commission to claim reimbursement of an amount of CZK 234 480 000 from the Czech Republic. 167 Moreover, the contested decision makes it clear that the Czech Republic has two claims on the ESF and that, failing payment of the amount claimed in the debit note accompanying the decision of 28 May 2008 within the time-limit set, the accounting officer is bound, in those conditions, to effect recovery by offsetting in accordance with the provisions of Article 73(1) of the Financial Regulation. 168 Consequently, the measure adversely affecting the Czech Republic was adopted in circumstances known to it, enabling it to understand the scope of the measure which concerns it, since the Czech Republic knows the reasons why the accounting officer decided to offset reciprocal claims existing between the parties. 169 Accordingly, it must be held that the contested decision contained a sufficient statement of reasons and the plea alleging failure to state reasons must consequently be rejected. 170 In conclusion, the action must be dismissed. Costs 171 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Czech Republic has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Third Chamber) hereby: 1. Dismisses the action. 2. Orders the Czech Republic to pay the costs. Azizi Cremona Frimodt Nielsen Delivered in open court in Luxembourg on 15 April 2011. [Signatures] Table of contents Legal context A – The EC Treaty B – The Act of Accession C – Framework Agreement between the Government of the Czech Republic and the European Commission concerning the participation of the Czech Republic in the European Community’s aid programme D – The Vienna Convention on the Law of Treaties E – Regulation (EC) No 1266/1999 F – The Financial Regulation G – The Implementing Regulation Facts Forms of order sought Law A – The first plea in law, alleging that the contested decision was adopted on an incorrect legal basis, and the second plea in law, alleging breach of the conditions laid down for offsetting by the Financial Regulation and by the Implementing Regulation 1. Arguments of the parties 2. Findings of the Court a) The Commission’s competence and the application of the Financial Regulation and of the Implementing Regulation b) Compliance with the procedure laid down by the Financial Regulation and by the Implementing Regulation for recovery of amounts receivable Preliminary observations The decision of 28 May 2008 and the contested decision – As to whether the claims are reciprocal – As to whether the Commission’s claim on the Czech Republic is certain and of a fixed amount B – The third plea in law, alleging failure to state reasons 1. Arguments of the parties 2. Findings of the Court Costs * Language of the case: Czech.

Mr. Justice Teare : On 17 June 2014 Eder J. granted the Claimant a world wide freezing order ("WFO") ex parte. The Claimant has now applied inter partes to continue the WFO. The Defendant opposes the continuation of the WFO. The WFO was granted in support of sums awarded by a London arbitration tribunal so there is no dispute either as to the Claimant's cause of action or as to this court's jurisdiction. The Defendant has taken three points. First, the Claimant has not established a risk of dissipation. Second, it is not just and convenient to grant a WFO. Third, the Claimant failed in its duty of full and frank disclosure. Before considering each of these points it is necessary to say something about the parties and the disputes between them. Both the claimant and the defendant are companies incorporated under the laws of Zambia. The claimant, U&M Mining Zambia Limited ("U&M"), is a subsidiary of a substantial Brazilian mining conglomerate and carries on business as a mining equipment contractor. The defendant, Konkola Copper Mines PLC ("KCM"), is owned, as to 79.4%, by Vedanta Resources Holding Limited which in turn is owned, as to 100%, by Vedanta Resources PLC, a resources and mining company listed on the London Stock Exchange (FTSE 250). The remaining interest in KCM is owned by a company which, as to 87.6%, is owned by the Zambian government. In addition the Zambian government has a "special share" which entitles it to certain rights. Three of the 8 directors of KCM are government appointees. KCM is one of the two largest mining and metals companies in Zambia and one of the largest copper producers in Zambia. It is the largest private sector employer in Zambia with 18,000 employees. Its assets are almost exclusively held in Zambia. This at any rate is apparent from the assets disclosed by KCM pursuant to the WFO. It appears from that disclosure and from further information provided after the hearing that apart from three bank accounts with very modest balances its assets are held in Zambia. Pursuant to certain contracts U&M mined one of KCM's mines. These contracts provided for arbitration in London and for the proper law of the contracts to be that of Zambia. The contracts provided for the High Court of Zambia to have exclusive jurisdiction to execute the arbitration award. Disputes arose between the parties. These, or some of them, were settled by a Settlement Agreement dated 26 October 2012. However, KCM did not pay the amounts it had agreed to pay pursuant to the Settlement Agreement. Instead, by letter dated 28 January 2103, it purported to rescind the Settlement Agreement on the ground that it had been induced by misrepresentation. At the same time KMC purported to terminate the remaining contract between the parties and sought and obtained from the High Court of Zambia an order requiring the immediate removal of U&M from the mine. In response U&M applied to the English court seeking relief pending the constitution of an arbitration tribunal. When that tribunal was constituted (Edwin Glasgow QC, Stuart Isaacs QC and Michael Lee) it granted interim relief to U&M allowing it 90 days to demobilise and vacate the U&M compound. In March, April and May 2013 U&M commenced several arbitrations against KCM. In June 2013 the arbitration tribunal directed a trial of a preliminary issue, namely, whether the Settlement Agreement was valid and binding. If it was binding then the defences sought to be raised by KCM to U&M's claims would fail (because of the terms of a release provision in the Settlement Agreement). The preliminary issue was heard over 5 days starting on 30 September 2013. Oral evidence was adduced by both parties. By an award dated 7 November 2013 ("the first award") the arbitration tribunal found that there had been no misrepresentation and that the Settlement Agreement was valid and binding. KCM was ordered to pay some US$13m. to U&M. Nothing has been paid. Unlike the mining contracts between the parties the Settlement Agreement does not provide for exclusive enforcement in Zambia. However, no doubt because KCM's assets are almost all in Zambia, U&M are seeking to enforce the first award in Zambia. KCM are resisting enforcement in Zambia and a ruling by the High Court of Zambia is expected shortly on the matter. Mr. Dale QC, counsel for U&M, has submitted that the grounds on which KCM are seeking to resist enforcement are "spurious and dishonest". However, in circumstances where the matter has been debated before the Zambian High Court and judgment is awaited it is inappropriate for this court to enter into that debate. In November 2013 U&M made a number of applications to the arbitration tribunal. KCM did not respond to these applications and on the eve of a hearing withdrew instructions from its solicitors and sought a three month adjournment to permit alternative representation. The arbitration tribunal refused the application for an adjournment and considered U&M's applications at the hearing on 9 December 2013. By an award dated 7 January 2014 ("the second award") it made certain orders which would become final in the event that U&M failed to show cause within a 14 day period why they should not be made. KCM failed to show cause and accordingly the orders became final. Pursuant to the second award KCM was ordered to pay some US$40m. to U&M. Nothing has been paid. By an award dated 24 March 2014 ("the third award") the arbitration tribunal ordered that KCM pay the costs of the first award on an indemnity basis. It considered that KCM's conduct in attempting to re-open the Settlement Agreement on the grounds of misrepresentation had been unjustified and that resisting the application for the issue to be determined as a preliminary issue had been obstructive. Furthermore the evidence of its principal witness was not credible. Costs were assessed in the sum of £1,260,385.19. Those costs have not been paid. KCM applied to the English High Court to challenge the second award pursuant to sections 67 and 68 of the Arbitration Act 2014. Eder J. acceded to an application that KCM provide security for the costs of its challenge to the second award. KCM provided that security. On 15 July 2014 Cooke J. held that KCM's challenge to the second award was untenable and dismissed it. He awarded U&M 75% of their costs on an indemnity basis and Eder J awarded U&M 65% of its costs of the application for security on an indemnity basis. Interim payments were ordered and they have been paid. Risk of dissipation of assets It was common ground that what had to be shown was correctly stated by Flaux J. in Congentra v Sixteen Thirteen Marine [2008] 2 CLC 51 at para.49 as follows: "(i) there is a real risk that a judgment or award will go unsatisfied, in the sense of a real risk that, unless restrained by injunction, the defendant will dissipate or dispose of his assets other than in the ordinary course of business………; or (ii) that unless the defendant is restrained by injunction, assets are likely to be dealt with in such a way as to make enforcement of any award or judgment more difficult, unless those dealings can be justified for normal and proper business purposes……..". Mr. Dale QC, on behalf U&M, submitted that there were, in broad terms, two reasons why the court should infer that there was such a risk. The first was the manner in which KCM had conducted the arbitration hearings and the second was KCM's attitude to its unsecured creditors. Before Eder J. Mr. Dale described those two points as the "twin pillars" upon which his application was based. KCM's conduct of the arbitration hearings In essence Mr. Dale submitted that KCM had acted in a dishonest, unacceptable and extraordinary manner with a view to avoiding its legal obligations to U&M. He submitted that such behaviour is or can be evidence that KCM is the sort of company which will stop at nothing, including dissipation of its assets, to prevent U&M from making any substantial recovery. The conduct of KCM upon which Mr. Dale relied in this regard was: i) making threats to U&M in October 2012; ii) refusing to pay the sums due under the Settlement Agreement and seeking to justify that refusal by putting forward "a dishonest" basis for suggesting that the Settlement Agreement was not binding upon it; iii) obtaining an urgent ex parte mandatory injunction from the Zambian High Court that U&M leave its compound immediately; iv) "dishonestly" obtaining an order from the arbitration tribunal in March 2013 that U&M keep its equipment at a particular site to secure a damages claim to be brought by KCM against U&M (at the rate of US$1.5m. per day) based upon the proposition that KCM was to work the mine when in fact KCM had decided in December 2012 not to work the mine; v) refusing to return equipment to which U&M was lawfully entitled; vi) seeking to advance "dishonest and untenable arguments" in the Zambian High Court in an attempt to resist enforcement of the First Award; vii) advancing arguments before the English High Court which were untenable in an attempt to challenge the Second Award pursuant to sections 67 and 68 of the Arbitration Act 1996. In my judgment the suggested threats made by KCM prior to agreeing the Settlement Agreement (point (i) above) do not materially advance U&M's case. Mr. Dale described them in his Skeleton Argument as "sarcastic". They were certainly not attractive comments to make but in my judgment do not amount to the necessary "solid evidence" (see The Niedersachsen [1983] 2 Lloyd's Rep. 600 at p.607 per Kerr J.) of an intention to dissipate assets. They were made about one year before the first award was published. Nor do I consider that it would be appropriate to enter into the debate which has taken place in the Zambian High Court as to whether the arguments advanced by KCM to prevent enforcement of the First Award are "dishonest and untenable" (point (vi) above). The judgment of the Zambian High Court on those arguments is awaited and in those circumstances it would be inappropriate for this court to comment on them. However, the other points made by Mr. Dale must be considered. When dismissing KCM's case that the Settlement Agreement was not binding and awarding U&M costs on an indemnity basis the arbitration tribunal made clear that it could not accept the evidence upon which that case was based. The evidence of the principal witness, Mr. Pratap, KCM's Business Controller, was not credible. It is clear that the arbitration tribunal did not regard Mr. Pratap as an honest witness. Mr. Dale submitted that KCM "formulated a dishonest basis upon which to contend that the Settlement Agreement was not binding upon it" and (in his oral submissions) that KCM suffers from "systemic dishonesty". The suggestion that KCM "formulated a dishonest basis" to resist enforcement was said to be based on paragraphs 57-59 of Mr. Hirst's first affidavit. Mr. Hirst had noted that although it had been reported on 1 November 2012 that KCM had refused to pay the sum due under the Settlement Agreement it was not until 28 January 2013 that KCM's lawyers said that KCM was rescinding the Settlement Agreement on the ground of a fraudulent misrepresentation. However, the only dishonesty to which I was referred was that of Mr. Pratap and I assume that it is this on which Mr. Dale relies when saying that KCM formulated a dishonest basis on which to resist enforcement of the Settlement Agreement. The phrase "systemic dishonesty" suggests that KCM as a corporate body is routinely dishonest. The arbitration tribunal did not make such a finding. Mr. Dale was, however, able to point to further evidence given on behalf of KCM which he submitted was dishonest. Mr. Ndulo, the senior legal counsel employed by KCM, gave evidence that KCM was accumulating losses at the rate of US$1.5 million per day. On the basis of this evidence KCM sought from the arbitration tribunal an order restraining U&M from moving its equipment so that KCM had security for losses it was said to be incurring. The arbitration tribunal considered that U&M should give an appropriate undertaking which it did. In September 2013 Mr. Ng'andu, the Executive Director of KCM, said that KCM had decided in December 2012 that the mine would shut down. This evidence was confirmed by Mr. Dawar, the chief financial officer of KCM. U&M therefore says that its undertaking was given in response to untrue evidence and claims to have suffered loss as a result; such losses are to be assessed at a further arbitration hearing. When U&M sought to be released from its undertaking KCM did not agree and U&M had to obtain an order from the arbitration tribunal releasing it. The tribunal considered that had it been aware of Mr. Ng'andu's evidence it would have been most unlikely to have ordered U&M to give the undertaking. Mr. Dale submitted that this evidence of Mr. Ng'andu showed that KCM was willing to put forward a "dishonest position to cause maximum damage" to U&M. Again, I assume that the reference to KCM putting forward a dishonest position is a reference to Mr. Ndulo doing so. It is striking that KCM can be shown to have relied upon untrue evidence on two occasions. Further, the failure to release U&M from its undertaking suggests a willingness to cause unnecessary harm to U&M. The same willingness to cause harm is suggested by KCM's conduct in obtaining from the Zambian High Court an ex parte order that U&M vacate its compound immediately (in reliance upon its unjustified case that KCM was not bound by the Settlement Agreement). KCM must have appreciated that such injunction was capable of causing damage to U&M. Similarly, although the arbitration tribunal ordered in its second award that U&M was entitled to the transfer of the ownership in certain items of equipment KCM has refused to comply with that order. KCM has sought to challenge the First Award in Zambia. As I have said I do not consider that I can comment upon the objections raised. It is however surprising that KCM has sought to challenge the First Award in Zambia in circumstances where KCM informed the arbitration tribunal that if the Settlement Agreement were found to be valid and binding by the tribunal "then it would have no defence to a claim for payment of the amounts due from it to U&M under the Settlement Agreement." KCM's challenge to the Second Award has been held by Cooke J. to be "untenable". KCM withdrew instructions from its legal representatives on the eve of the hearing and then, having been given an opportunity to show cause why certain orders should not be made, failed to show cause. It then sought to challenge the award on untenable grounds. This conduct suggests a party willing to do all it can to prevent the other party from enforcing its legal rights. It is necessary to consider whether the court can infer from the totality of KCM's conduct (rather than from each piece of conduct separately) a risk that KCM will deal with its assets other than in the ordinary course of business in such a way as to make enforcement of the arbitration awards more difficult. U&M has adduced evidence that personnel employed by KCM are willing to give untrue evidence, are willing to cause unnecessary harm to U&M and are willing to take untenable points with a view to delaying the time when the second award can be enforced. Further, the arbitration tribunal found that KCM had been obstructive in resisting the application for the determination of the validity of the Settlement Agreement as a preliminary issue. This conduct is consistent with a comment made by Mr. Ng'andu in February 2013 during a telephone conversation with Mr. Mendoca, the International Operations Director of U&M, that he recognised that invoices were due and unpaid but that KCM "would hold onto U&M's money to the end of the dispute, which it would fight bitterly, no matter how long it took, including in Zambia where proceedings would take many years." In my judgment such conduct is solid evidence from which it can be inferred that there is a risk that KCM, unless restrained by an order of this court, will deal with its assets other than in the ordinary course of business with a view to making enforcement of the arbitration awards more difficult. It is true that none of the conduct in question amounts to such a dealing with its assets but an entity which has employees willing to give untrue evidence, to cause unnecessary harm, to be obstructive of the arbitration process and to take untenable points with a view to delaying enforcement of an award might well seek to deal with its assets other than in the ordinary course of business with a view to making enforcement of the arbitration awards more difficult. Mr. Dunning QC on behalf KCM submitted that no such inference could be drawn when account is taken of the nature of KCM as a company and its assets "which are at the opposite end of the spectrum from those of the offshore single asset owning vehicle." A number of points were taken including the following. Many of KCM's assets were of a capital nature or were in daily use in its copper mines. It is a trading company. Is KCM, he asks, going to remove its liquid assets (such a bank accounts) so as to frustrate U&M ? I accept that such matters must be taken into account when deciding whether a risk of dissipation can be inferred from the evidence relied upon by U&M. But although KCM has assets of a capital nature, some mortgaged and therefore unlikely to be dissipated, KCM also has bank accounts in Zambia. The question is whether there is a real risk that such liquid assets as it has will be dealt with other than in the ordinary course of business with a view to making enforcement of the arbitration awards more difficult. I consider that a company which can act in the manner which I have described may well deal with its liquid assets other than in the ordinary course of business with a view to making enforcement of the arbitration awards more difficult. There is therefore the required real risk. In answer to Mr. Dunning's rhetorical question there is a risk that KCM will deal with its liquid assets in such a way as to frustrate the efforts of U&M to enforce the arbitration awards. Mr. Dunning also relied upon the fact that KCM has paid the interim costs orders made by this court and has complied with its disclosure obligations pursuant to the WFO. I accept that they have but I am not dissuaded from drawing the necessary inference by those matters. KCM's attitude to unsecured creditors Mr. Dale also submitted that a clear picture emerges from certain evidence, in particular the GTAC report (a report of the Zambian Government Technical Audit Committee), that KCM has deliberately structured and conducted itself to make it difficult for an unsecured creditor such as U&M to receive and/or enforce its debts. The matters relied upon have been summarised by Mr. Dale in this way: "In short, as found by the GTAC Report KCM has been structured so that (1) it makes significant new capital projects ….from internally generated revenues including by delaying payments to suppliers; (2) it has very highly geared bank lending and is "effectively mortgaged" to the banks; (3) its current liabilities massively exceed its current assets; and (4) its liquid assets for paying debts as they fall due – such as cash in the bank – are kept deliberately at a minimum level. Furthermore serious concerns have also been raised as to the removal/transfer of funds from KCM to Vedanta by various means." I have found the conclusions which Mr. Dale invites me to draw from these matters difficult to accept. I of course accept that there is evidence (not only in the GTAC report but also in two reports from Grant Thornton) that KCM is short of cash, has considerable debts and delays in paying its creditors. It prefers to spend its resources on capital projects rather than on its current debts. But such matters do not, it seems to me, show that KCM has deliberately structured and conducted itself to make it difficult for an unsecured creditor such as U&M to receive and/or enforce its debts. Spending resources on capital projects rather than on paying current debts may or may not be unwise. Without knowing more of the nature of such capital projects and KCM's obligations in respect of them it is not possible, it seems to me, to say that such expenditure is not in the ordinary course of business. Thus I am not able to accept that the evidence in the GTAC report or in the Grant Thornton reports establishes a risk that assets may be dissipated or dealt with other in the ordinary course of business with a view to making enforcement of the arbitration awards more difficult. The evidence of course gives rise to a risk that U&M may not be paid because KCM appears to lack the resources to pay all its debts. But that, by itself, does not establish a risk that its assets may be dissipated other than in the ordinary course of business. It is no part of the purpose of a freezing order to pressurise a defendant into discharging the claimant's debt in preference to the debts of others; see Camdex International v Bank of Zambia [1997] 1 WLR 632 at p.640 per Phillips LJ. There is a very considerable dispute between the parties as to whether or not Vedanta is supporting KCM and whether or not Vedanta is removing assets from KCM to itself. Whilst there was some support in the GTAC report for U&M's case in this regard KCM says that the allegations made by U&M are wrong. KCM's response was not accepted by U&M. Indeed, Mr. Dale said that KCM's case that Vedanta was providing finance to KCM was a "complete lie". Strictly, it is unnecessary for me to enter into this dispute because, for the reasons I have given, U&M can establish the necessary risk of dissipation without having to rely upon its allegations with regard to Vedanta. I shall however make some observations about them. On an interlocutory application it is not possible to make definitive findings with regard to them. The principal allegations are that Vedanta has not injected capital into KCM as it was supposed to have done and that funds are being diverted from KCM to Vedanta, in particular, by selling copper to a subsidiary of Vedanta other than at arm's length in such a way as to result in under-pricing of the copper. Prior to obtaining a copy of the GTAC report on 12 June 2014 (shortly before U&M applied ex parte to Eder J. for a WFO) U&M already had concerns about Vedanta's support for KCM and about funds being diverted to Vedanta. These were based upon concerns expressed by the Zambian government, statements by Mr. Anil Agarwal (the chairman of Vedanta), reports in Bloomberg News, enquiries made in Zambia by Mr. Hirst of Clyde and Co. (who act for U&M), a report by Grant Thornton, the web site of the Lusaka Times, information provided by Foil Vedanta (an organisation dedicated to providing increased visibility of, and information in respect of, Vedanta's business practices) and certain documents obtained in confidence (see paragraphs 230-281 of Mr. Hirst's first affidavit dated 17 June 2014). However, attention was focused at the inter-partes hearing on the evidence in the GTAC report. The GTAC report states that an investment of US$2.8 billion in KCM supposedly made by Vedanta was in fact made up of US$2.07 billion from internally generated cash flows (including delaying payments to suppliers) and US$729m. from bank loans. It is not clear to me that KCM denies this allegation. Mr. Dunning referred to Mr. Dawar's first witness statement at paragraph 77.5 which refers to a "cumulative investment in terms of capital expenditure" of more than US$2.8 billion. But the point which U&M makes is not that there was no investment in capital expenditure but that the investment was not provided by Vedanta. Mr. Dawar does not appear to challenge that point. There is, however, evidence of more recent investment provided by Vedanta. A "Business Improvement Plan" required a US$400m. guarantee to be provided by Vedanta. Mr. Dawar has stated (at paragraph 61 of his witness statement) that this was in fact given by Vedanta and enabled KCM to secure US$250m of refinancing resulting in an injection of US$150m. of funds. This was in addition to a cash injection of US$100m. by Vedanta in three tranches in late 2013 and early 2014. Mr. Hirst has said that Vedanta has apparently failed to meet its commitment to provide the US$400m. guarantee (see paragraph 283 of his affidavit), relying upon an article on the website of the Lusaka Times dated 20 May 2014 reporting that Mr. Yaluma, the Minister of Mines, had said that Vedanta had "failed to meet its commitment to inject US$397m into KCM as a foreign direct investment." But it is not clear that this is the US$400m. guarantee. Indeed, in another context (see his written submissions entitled "Alleged Misleading Impressions") Mr. Dale submitted that the commitment to inject US$397m did not originate from the Business Improvement Plan but was something promised at the time that Vedanta originally bought KCM shares. It seems very likely that the commitment to inject US$397m was distinct from the commitment to provide a guarantee of US$400m. It is also to be noted that Grant Thornton assumed in their second report that the guarantee of US$400m. had been given. So the position appears to be as follows. Capital investment of some US$2.8 billion in KCM has been made possible by internally generated cash flows of US$2.07 billion and US$739 million from bank loans. There appears to be no evidence that this investment was made by Vedanta. There is however evidence (which does not appear to be challenged) that Vedanta has provided a cash injection of US$100m. in three tranches in 2013 and 2014. Further, the suggestion that Vedanta did not provide the US$400m. guarantee as contemplated by the Business Improvement Plan appears to be mistaken. I do not regard these matters as materially assisting U&M's case for a WFO. If the position were that Vedanta was not investing in KCM that would increase the risk that creditors such as U&M will not be paid. But a risk of non-payment is not a risk that assets will be dissipated other than in the ordinary course of business. In any event there is evidence that Vedanta has invested in KCM. That leaves the suggestion that KCM's funds are being improperly diverted to Vedanta and, in particular, that copper has been sold at an under value to a subsidiary of Vedanta. The suggestion was made in the GTAC report but has been denied by Mr. Dawar. In addition KCM's auditors have said that the terms of sale were no more favourable than those arranged with third parties and experts instructed on both sides appear to agree that the sales were broadly at market price on market terms. In these circumstances Mr. Dale was only able to describe the matter as one of "concern" which he "could not take much further." I therefore do not consider that this issue materially assists U&M's case for a WFO. Before Eder J. Mr. Dale referred to evidence of a statement by Mr. Agarwal, the chairman of Vedanta, to the effect that Vedanta was receiving US$500m. "profit" per year from KCM plus an extra US$1 billion as "the other high water mark" of his case. My understanding of the significance of this point is that it points to substantial monies being "dissipated" to Vedanta. It has given rise to much debate, largely because of a dispute as to whether Mr. Agarwal referred to US$500m of profit or intended to refer to US$1,500 million of turnover. However, whatever the answer to that debate it does not appear that the payment of such a sum to Vedanta has been identified either in the GTAC report or in the reports of Grant Thornton. I was not referred to any supporting references (though I have noted that Grant Thornton confirmed that the average turnover for the past four years had been US$1,591 million). It is improbable that the payment of such sums to Vedanta by KCM, if made, could be hidden from the authors of the GTAC report or from Grant Thornton. I therefore have my doubts as to the significance of this "high water mark". But it is unnecessary for me to assess its significance any further because, for the reasons already given, the necessary risk of dissipation has been established. Just and convenient It must be just and convenient to grant the WFO; see The Niedersachsen [1983] 2 Lloyd's rep.600 at p.619-620 per Kerr J. Mr. Dunning submitted that even if the necessary risk of dissipation has been established it is neither just nor convenient to continue the injunction. Mr. Dunning relied upon 18 points in support of this submission but those points can, I think, be summarised in this way. KCM has no assets in England and so enforcement of the arbitration awards will not take place here but in Zambia where the bulk of KCM's assets are. Zambia appears to have a legal system based upon English law and U&M can avail itself of the remedies available in Zambia. There is no evidence that the legal remedies available to U&M are inadequate and in the absence of such evidence there is no utility in continuing the WFO. Indeed, the largest award in favour of U&M, the second award, provides that enforcement shall take place exclusively in Zambia. In support of his submission Mr. Dunning relied upon a statement by Millett LJ in Credit Suisse Trust v Cuoghi [1998] QB 818 at p.827 that "where a defendant and his assets are located outside the jurisdiction of the court seised of the substantive proceedings, it is in my opinion most appropriate that protective measures should be granted by those courts best able to make their orders effective." Mr. Dunning submitted that in the present case the courts of Zambia were best suited to making a freezing order. Mr. Dale's response to this argument was that it was appropriate for the English court to make the WFO because the seat of the arbitration was in London. He said that the fact that another court could assist (by granting a freezing order) was no bar to this court doing so where London was the seat of the arbitration. Mr. Dunning replied that it was not the invariable rule that this court should grant a WFO where London was the seat of the arbitration. He submitted that before the English court issued a WFO there must be "utility" in so doing. He said there was none in the present case. As a matter of principle there must be a real purpose, or to use Mr. Dunning's word, utility, in this court granting a WFO. However, where there is a risk that the defendant may dissipate or deal with its assets (in the required sense) and so render it more difficult to enforce an arbitration award there plainly is a real purpose or utility in granting the WFO. That is so even if the defendant's assets are not in England but in another jurisdiction. The more difficult question is whether it is appropriate for this court to grant a WFO if the court in the jurisdiction where the defendant's assets are located can also grant a WFO. This court has power to make orders in support of arbitral proceedings; see section 44 of the Arbitration Act 1996. That power is not limited to arbitrations whose seat is in England and Wales, but where the seat is outside England and Wales the court may refuse to exercise its powers if it is inappropriate to do so; see section 2(3) of the Act. The DAC report said that the object of this provision is to ensure that the English court's powers are not exercised where a foreign court is seized or is likely to be seized of the matter, or where there is another more appropriate forum in which the application for supportive measures may be made; see Commercial Arbitration by Mustill & Boyd 2001 Companion to the Second Edition at p.258. Mustill & Boyd's own comment at p. 324 is that the court would refuse to exercise its powers if a court of the seat of the arbitration had corresponding powers or if the court's powers were likely to be unenforceable in the country of the seat. The inference which I draw from sections 2 and 44 of the Act is that where the seat of the arbitration is in England and Wales it will ordinarily be appropriate for this court to issue orders in support of the arbitration. However, the court obviously has a discretion as to whether or not to issue such an order even where the seat of the arbitration is in England and Wales. There may be reasons why, notwithstanding that the seat of the arbitration is in England and Wales, it is not appropriate to grant the order. A number of authorities reflect this approach. In Econet Wireless Limited v Vee Networks [2006] EWHC 1568 (Comm) at paragraph 19 Morison J. accepted a submission that "the natural court for the granting of interim injunctive relief must be the court of the country of the seat of arbitration, especially where the curial law of the arbitration is that of the same county." That was a case where the seat of the arbitration was in Nigeria and the case concerned shares in a Nigerian company whose business was based in Africa; see paragraphs 15-19. The judge held that there was no reason why the English court should make an order in support of the Nigerian arbitration. In Cetelem SA v Roust Holdings Limited [2005] EWHC 300 (QB) a freezing order was granted in support of a London arbitration, notwithstanding that the respondent had no assets within the jurisdiction. Langley J. held that in such a case this court "should take the lead ….unless there is good reason not to do so." In Belair v Basel [2009] EWHC 725 (Comm) Blair J. granted a freezing order in respect of the former presidential palace in Tbilisi, the capital of Georgia. The arbitration in support of which the order was granted was in London. Blair J., relying upon Econet Wireless v VEE Networks, said that "the English Court may be a natural court for the granting of interim injunctive relief as the court of the country of the seat of the arbitration." There is nothing in Credit Suisse Trust v Cuoghi [1998] QB 818 upon which Mr. Dunning relies which detracts from this approach. That case did not concern an arbitration. It concerned proceedings in Switzerland against a defendant who was resident and domiciled in England. A freezing order, which was not available in Switzerland, was sought by the claimant in this court. It was granted. The full text of the passage in the judgment of Millett LJ upon which reliance was placed was as follows: "Where a defendant and his assets are located outside the jurisdiction of the court seised of the substantive proceedings, it is in my opinion most appropriate that protective measures should be granted by those courts best able to make their orders effective. In relation to orders taking direct effect against the assets, this means the courts of the state where the assets are located; and in relation to orders in personam, including orders for disclosure, this means the courts of the state where the person enjoined resides." Thus in Credit Suisse the English court was best able to make its order effective because the defendant was resident in England. In the present case Mr. Dunning says that KCM has no assets in England and so enforcement of the arbitration awards will not take place here but in Zambia where the bulk of KCM's assets are. There is no evidence that the legal remedies available to U&M in Zambia are inadequate and in the absence of such evidence there is no utility in continuing the WFO. Further, with regard to the largest award in favour of U&M, the second award, the parties have agreed that enforcement shall take place exclusively in Zambia. There is no dispute that enforcement of the arbitration awards will take place in Zambia. Indeed, Mr. Hirst said in his second witness statement that "at no time has it been suggested that U&M are (or were) attempting to enforce the Awards anywhere other than Zambia." (The only assets outside Zambia which have been identified are three bank accounts, one in Bahrain and two in London which contain modest sums.) Does that circumstance make it inappropriate for this court to grant a WFO in support of the arbitration awards made in London ? Mr. Dale submitted that it did not because a WFO is not a measure of enforcement and that protective measures which operate in personam are distinct from enforcement. It has not been disputed that this court has jurisdiction to issue a WFO against KCM. Thus, although KCM is not resident or domiciled in this jurisdiction, it can be made subject to orders of this court which operate in personam. This is because KCM has agreed to London arbitration and accordingly either section 44 of the Arbitration Act 1996 (as contended by U&M) or section 37(1) of the Senior Courts Act 1981 (as contended by KCM) confers personal jurisdiction over KCM. (Mr. Dunning submits that section 44 has no application after an award has been published and the arbitration tribunal is functus officio but The Arbitration Act 1966 by Merkin and Flannery at p.177 suggests it applies in such circumstances. In any event Mr. Dunning accepts that jurisdiction to make a WFO in such circumstances can be found in section 37 of the Senior Courts Act.) The fact that the seat of the arbitration is in London means that, in the absence of some reason or indication to the contrary, it will be appropriate for this court to grant relief in support of the arbitration (whether the source of the court's power is section 44 of the Arbitration Act or section 37 of the Senior Courts Act.) This court has granted freezing orders in support of a London arbitration even though there are no assets in this jurisdiction; see Cetelem SA v Roust Holdings Limited [2005] EWHC 300 (QB) and Belair v Basel [2009] EWHC 725 (Comm). I consider that that is the right approach. A WFO, being an order which operates in personam, is conceptually distinct from enforcement of an arbitration award. Enforcement of an award requires an asset to be attached. A WFO does not attach an asset. It operates in personam by requiring the defendant not to dissipate or deal with his assets in such a way that will render enforcement of an award by attachment of an asset impossible or more difficult than it would otherwise be. It seeks to preserve the position so that enforcement may take place in the future; see Masri v Consolidated Contractors International (No. 2) [2008] 1 AER (Comm) 305 at paragraph 59 per Gloster J. Thus the mere fact that enforcement of an award will take place in Zambia is, by itself, insufficient to make it inappropriate for this court, being the court of the place where the arbitration has its seat, to grant a WFO. For the same reason the fact that in relation to the second award the parties have agreed that enforcement shall take place in Zambia is, by itself, insufficient to make it inappropriate for this court to grant a WFO. The further factors relied upon are that KCM is resident in Zambia and therefore amenable to the in personam jurisdiction of the courts of Zambia and that there is no evidence that the courts of Zambia cannot grant a freezing order. In those circumstances it is to be assumed that they can. So protective relief can be given by either the English or the Zambian court. Does that factor, coupled with the location of KCM's assets in Zambia, mean that it is not appropriate for the English court to issue a WFO ? This is a case where it is appropriate for two courts to grant a freezing order against KCM; this court because of the London arbitration clause, and the court of Zambia because that is where KCM is resident. However, I do not accept that the fact that it may be appropriate for another court to grant a freezing order means that it is inappropriate for this court to do so where this court's in personam jurisdiction over KCM derives from the London arbitration clause to which KCM agreed. Nor do I consider that it is more appropriate for the Zambian court to issue a freezing order given that the seat of the arbitration was London. For these reasons I consider that it is just and convenient (subject to the last point which I must consider) to grant a WFO in the circumstances of this case. Full and frank disclosure The scope of the duty of disclosure of a party applying ex parte for injunctive relief has been described by Bingham J. in Siporex Trade v Comdel [1986] 2 Lloyd's Rep. 428 at p. 437 as follows: "Such an applicant must show the utmost good faith and disclose his case fully and fairly. He must, for the protection and information of the defendant, summarize his case and the evidence in support of it by an affidavit or affidavits sworn before or immediately after the application. He must identify the crucial points for and against the application, and not rely on general statements and the mere exhibiting of numerous documents. He must investigate the nature of the cause of action asserted and the facts relied on before applying and identify any likely defences. He must disclose all facts which reasonably could or would be taken into account by the Judge in deciding whether to grant the application. It is no excuse for an applicant to say that he was not aware of the importance of matters he has omitted to state. If the duty of full and fair disclosure is not observed the Court may discharge the injunction even if after full enquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure." I was also referred to authority which states that where there has been a breach of the duty to make full and frank disclosure the applicant "cannot obtain any advantage from the proceedings"; see Bank Mellat v Nikpour FSR [1985] 87 at p.90 per Donaldson LJ. But the passage quoted above from the judgment of Bingham J. shows that the court retains a discretion. It was said in Brink's Mat v Elcombe [1988] 1 WLR 1350 at p.1358 by Balcombe LJ that the discretion is to be used "sparingly" but he accepted that "the rule" that an injunction will be discharged if it was obtained without full disclosure cannot be allowed to become "an instrument of injustice". Thus in Congentra v Sixteen Thirteen Marine [2008] 2 CLC 51 and [2008] EWHC 1615 (Comm) Flaux J said at paragraph 63 that the overriding question for the court is what is in the interests of justice. Mr. Dunning submitted that U&M did not make a fair presentation to Eder J. of the nature of KCM. In particular he said that U&M made no proper attempt to describe the size and nature of KCM's business and its fixed assets. However, Mr. Hirst in his affidavit described KCM as the owner of a number of mines in Zambia and a subsidiary of a very large company Vedanta. He referred to the vast amounts of money KCM earns from mining in Zambia and described it as a very large mining organisation. He said that KCM was the largest copper mining company in Africa and was once one of the largest employers in Zambia. He described the nature of the business as open pit mining which requires excavation of the pit by removing waste to reveal the copper ore and then mining the ore. I consider that this was sufficient to make clear to the court, for example, (and as Mr. Dunning submitted) that KCM was very different from "an offshore single asset owning corporate vehicle". Mr. Dunning also said that U&M failed to mention the delay and lack of urgency and failed to justify why an application needed to be made ex parte just before two major hearings. As to delay, I was not persuaded that there was any delay. It may be that the application could have been made before U&M obtained a copy of the GTAC report but it is often a difficult matter for a claimant to decide that he has sufficient evidence to justify the application. Certainly it is KCM's case that the information and material available to U&M before it received a copy of the report did not justify the grant of a WFO. In the event U&M made its application shortly after receiving a copy of the GTAC report from a confidential source. As to urgency Mr. Hirst said that if notice were given to KCM of the application KCM would be in a position to take steps to put its assets beyond the reach of U&M. That is the usual explanation for seeking a freezing order ex parte and is an acceptable explanation if there is solid evidence that unless restrained the defendant will dissipate or deal with its assets other than in the ordinary course of business with a view to making enforcement of any judgment or arbitration award more difficult. Mr. Dunning submitted that this is not a case where any particular asset "may go in the next few days". But liquid assets such as bank accounts may be dealt with quickly and in such a way that enforcement of the arbitration awards is made more difficult. Finally, Mr. Dale in paragraph 20 of his Skeleton Argument before Eder J. expressly informed Eder J. that there were two hearings shortly to take place in the Commercial Court. The subject matter of those hearings did not render it inappropriate to proceed ex parte. Mr. Dunning submitted that U&M failed to draw certain facts and matters to the attention of the court. It is necessary to consider each complaint in turn. a. "For several years, dividends were declared to KCM's shareholders, Vedanta and ZCCM, but not paid." The relevance of this point is that if dividends were declared but not paid that indicates that Vedanta, far from extracting cash from KCM, was doing the opposite. It is accepted by Mr. Dale that whilst dividends of US$100m. between 2011 and 2104 were declared only US$49.9m. were paid. However, Mr. Hirst did not state that in his affidavit. The only reference to dividends was a comment at paragraph 240 of his first affidavit that since the list of creditors as at January 2014 did not include dividends payable, the dividends were paid and a substantial proportion of the dividends must have been paid to Vedanta. By contrast the first report of Grant Thornton, which was available to U&M before the ex parte hearing, stated that KCM appeared not to have paid the full amount of dividends that were declared for 2013 and noted that such unpaid dividends could amount to fresh funding of KCM by Vedanta. However, there is no indication that this information was brought to the attention of Eder J. In circumstances where (i) Mr. Hirst made a point about dividends, suggesting they had been paid, (ii) he had available to him the first report of Grant Thornton and (iii) had summarised Grant Thornton's analysis (see paragraph 251 of Mr. Hirst's affidavit) Mr. Hirst ought to have brought Grant Thornton's comment about dividends to the attention of the court and corrected or at any rate clarified the passage in his affidavit about dividends. His failure to do so was a failure to give full and frank disclosure. b. "KCM repaid a US$500 million loan to Vedanta in 2012, but in the same period it secured a replacement credit facility in the same amount at far more beneficial interest rates, so its net position was not worsened but improved." It is true that in his Skeleton Argument before Eder J. Mr. Dale said that Vedanta had prematurely called in a loan of US$500 million. That was in support of the argument that there was a lack of direct investment by Vedanta in KCM. Mr. Dale has submitted that the fact that the loan was replaced by a loan from Standard Chartered Bank was not relevant to that point but that in any event Mr. Hirst at paragraph 260 of his affidavit informed the court that the loan from Vedanta had been replaced by a loan from Standard Chartered Bank. No reference was made to the fact that the replacement loan was at better rates for KCM. This had been stated in the GTAC report. In making the point that there was a lack of direct investment by Vedanta in KCM Mr. Hirst was, it seems to me, suggesting that KCM's position was less advantageous than it would otherwise have been. That being so, the failure to inform the court that Vedanta's loan had been replaced by another loan at more advantageous rates ought to have been mentioned because that tended to suggest that KCM's overall position had improved, not worsened. c. "The Government of Zambia holds a "Special Share" in KCM, which confers upon it the right to veto any material change in the nature of the KCM Group's business." Mr. Hirst drew the attention of the court to the fact that KCM was part owned by the Government of Zambia. However, there is no dispute that the "special share" is something else. It was material because its existence tends to weaken the possibility that monies of KCM would be improperly diverted to Vedanta. The fact of the special share was mentioned in KCM's accounts and so its existence ought to have been brought to the attention of the court. d. "Clause 9.7 of the Contract for Mining Output Enhancement from Open Pits dated 25 April 2007 provided that the High Court of Zambia shall have exclusive jurisdiction to execute any arbitration award, and similar provisions were contained in the other contracts that are the subject matter of this dispute." It is accepted that these clauses were not drawn to the court's attention. In his second witness statement Mr. Hirst said that the relevance of these clauses is "entirely unclear". He does not say that he was unaware of the clauses; it is improbable that he was unaware of them given that he referred expressly to the clause in the contracts which referred disputes to arbitration in London. The relevance of the clauses is that they suggest that the appropriate court for a WFO in relation to the second award might be the High Court in Zambia. I accept that a WFO is strictly not part of the enforcement process but it is an injunction designed to ensure that a defendant cannot frustrate enforcement. Of course, the circumstance that the seat of the arbitration is London suggests that the High Court in England is the appropriate court to issue a WFO but U&M was obliged to inform the court of any factors which suggest, or might reasonably suggest, that it might not be the appropriate court. In my judgment the exclusive jurisdiction clause is a fact which could reasonably be taken into account by the court when deciding whether it was appropriate for this court to issue the WFO. The exclusive enforcement clause is therefore a material factor, notwithstanding that on consideration of the rival factors this court would still have been determined to be an appropriate court. The test of materiality is objective and the fact that Mr. Hirst did not appreciate the materiality of the clause cannot avail U&M. There was therefore a failure to give full and frank disclosure with regard to the clause. The clause did not apply to the first and third awards but it did apply to the largest award against KCM, namely, the second award. e. "Mining reserves do not appear as an asset on the balance sheet except to the extent that they were purchased, but a thorough analysis of KCM's reserves is necessary to inform any understanding of the company's financial position." It is common ground that mining reserves (unless purchased) do not appear as an asset on the balance sheet of a mining company. Grant Thornton have said that it is in accordance with generally accepted accounting practice and standard market practice for a mining company. Grant Thornton accept that this does not mean that reserves and resources are without value but say that the "key point is what and how much KCM can produce and at what level of profitability." I do not understand how U&M could have made a thorough analysis of KCM's mining reserves by assessing what it could produce at a profitable level. It was not explained how such an analysis could have been done. I therefore do not accept this criticism. Mr. Dunning submitted that in several respects U&M gave a misleading impression of events. a. "U&M relied upon the letter from the Chief Financial Officer of Vedanta dated 24 February 2014 in order to cast doubt on the commitment of Vedanta to KCM, but did not mention that this letter contains a clear and unequivocal statement of support from Vedanta." This criticism is difficult to follow for Mr. Hirst in fact referred in paragraph 283 of his first affidavit to the support which Vedanta promised to make in the letter dated 24 February 2014. (He went on to say that that support had not been given but that is the subject of the next complaint.) b. "U&M relied upon a statement of Mr. Yaluma MP that Vedanta had not complied with its "commitment" in the BIP to inject US$397 million into KCM as foreign direct investment, but failed to point out that no such commitment is contained in the BIP." I have already said that Mr. Hirst appears to have thought that the promise to inject US$397m into KCM was the promise in the BIP to provide a guarantee of US$400m. In saying that he appears to have been mistaken; see paragraph 69 above. To that extent Mr. Hirst's evidence gives a misleading impression. c. "U&M relied upon an action group's inaccurate account of the YouTube video of Mr. Agarwal and in so doing attributed words to him that he did not say. U&M also failed to explain the context of this video, namely, that it was made at an event designed to encourage budding entrepreneurs and not a forum for discussion of KCM's financial performance." Although the press comments referred to "profit" of US$500m. per year being received by Vedanta that word was apparently not used by Mr. Agarwal. Mr. Hirst referred both to the press comment and to the translation of the original Hindi, which translation did not include the word profit. The complaint is that this inconsistency was not drawn to the attention of the court. KCM says that the figure mentioned was not profit but turnover. However, when KCM issued a press release in response to the press reports of the speech KCM did not make the point that the reference to "profit" had been wrong. Rather, the press release made the point that what had not been mentioned by Mr. Agarwal was that "nearly all the returns from KCM have been reinvested back into KCM." The word "returns" is more suggestive of profit than turnover. But in any event I find it difficult to criticise Mr. Hirst for failing to draw to the attention of the court the difference between the press comment and the translation when (a) "profit" was clearly used in the press comment, (b) he also set out the translation of the speech, which did not refer to profit and (c) KCM in its press release did not consider that the disparity between the press comment and the actual text required clarification. The further complaint is that no mention was made that the speech was made at an event designed to encourage entrepreneurs and not at a forum for serious discussion of KCM's financial performance. That is true but any comment made by someone in Mr. Agarwal's position (he was the executive chairman of Vedanta) with regard to the relationship between his company and a subsidiary must surely be treated as serious (notwithstanding that one columnist said that the speech "should be taken with a pinch of salt" and that the "report is coming from him with a clear motive to try and motivate his audience to begin taking business chances.") d. "U&M declined to bring to the Court's attention the publicly available corrective matters that followed the said YouTube video, which included a follow up article, a press release from Vedanta, a debate between KCM and the Zambian tax authorities and other relevant media reports." The most important corrective matter was the press release issued by Vedanta and published on its web site. This press release made the point that Vedanta was investing in KCM and in particular that its "returns from KCM" had been reinvested in KCM. This was relevant to U&M's allegation that Vedanta was not supporting KCM and reference to it ought to have been made. e. "U&M gave the impression that the corporate restructuring undertaken by Vedanta in 2012 was a recent event, which contributed to the urgency of its application and the risk of dissipation." Mr. Hirst, at paragraph 253 of his first affidavit, referred to the announcement of the restructuring in February 2012 and to the restructuring having been concluded in August 2013. Mr. Zografakis, at paragraph 21 of his first witness statement, acknowledged that Mr. Hirst referred to the restructuring as having taken place in 2012. In the circumstances I do not consider that the criticism that U&M referred to the reconstruction as "recent" is justified. f. "U&M stated that the said corporate restructure was unexplained, notwithstanding that an explanation has been publicly available on Vedanta's website since February 2012." Mr. Hirst complained in paragraph 262 of his first affidavit that no explanation had been given for the fact that KCM was not mentioned in the new proposed group structure. Mr. Zografakis states that the rationale behind the restructuring was apparent from a press release issued in February 2012, yet no mention of this was made by Mr. Hirst. I am not at all persuaded that the absence of a reference to KCM in the proposed restructuring is or may be sinister. But even if it is or may be sinister reference ought, in fairness, to have been made to the press release which, it is accepted, outlines the commercial rationale behind the restructuring. The press release may not explain the absence of a reference to KCM but the existence of a commercial rationale for the restructuring makes it less likely that there was anything sinister in the omission of a reference to KMC. g. "U&M placed huge reliance upon the GTAC Report, but failed to draw the court's attention to the exhibited letter from Mr. Yaluma MP, which expressed his appreciation for KCM's investment and confirmed the Zambian Government's continued commitment to KCM." The GTAC report was dated 21 January 2014. The letter from Mr. Yaluma to which reference is made is dated 3 March 2014. It is accepted that this letter refers to the Government's continuing support for KCM. Mr. Dale submitted that the letter does not change the conclusions of the GTAC report. That may be so but in circumstances where Mr. Hirst makes the point that the Government became increasingly concerned with KCM and as a result considered it necessary to procure the GTAC report expressions of continuing support for KCM after the Government had received the report ought to have been mentioned. Mr. Dale submitted that the expressions of support were "on the back of the Business Improvement Plan which was intended to improve the situation with KCM." That may be so but a full presentation of the evidence probably ought to have made reference to Mr. Yalumba's letter. h. "Mr. Justice Eder should also have been taken to the letter from the Minister of Mines dated 3 March 2014, which again affirms the Zambian Government's continuing commitment to KCM." It is common ground that this is the same letter as was referred to in the previous complaint and is not a separate complaint. i. "U&M relied extensively on Foil Vedanta's allegation of transfer mispricing, but did not inform the Court of who it was making the allegation or that such an irregularity would be a matter of concern for KCM's auditors, or that Messrs. Deloitte had in fact approved KCM's 2013 accounts and considered that the transactions with related companies were at arm's length." The first part of this criticism is unjustified. Mr. Hirst described Foil Vedanta as "an organisation which is dedicated to trying to provide increased visibility and information in respect of Vedanta's business practices and to hold it and its backers to account for the way it conducts itself." The second half of the criticism is justified. Deloitte's statement that the transactions in question were at arm's length was obviously material to the allegation of transfer mis-pricing and ought to have been mentioned. j. "U&M did not correctly explain the basis on which KCM retained possession of the equipment and in fact misrepresented the position in a prejudicial way." I am unable to accept this criticism. Mr. Hirst summarised the letter dated 18 February 2014 at paragraph 202 of his first affidavit which set out KCM's case. I was not persuaded that this summary misrepresented their case. k. "U&M gave a misleading impression of the nature of KCM's disputes with certain utilities, telephone and electricity companies, which concerned contractual disagreements over tariffs rather than KCM's inability to pay the invoices raised." I was not referred to any evidence that U&M was or ought to have been aware that the dispute was over tariffs rather the result of an inability to pay. U&M relied upon the information available to it. I do not accept this criticism. Such is the importance of the duty to give full and frank disclosure of all matters material to the court's decision that a failure to comply with that duty can lead to a freezing order not being granted even if the circumstances are otherwise such that it is just and convenient to grant a freezing order. I have therefore considered whether the failures in the present case require the court to refuse to continue the WFO. The duty was not complied with in a number of respects. The fact that some dividends had not been paid to Vedanta, that a loan to Vedanta had been replaced at more beneficial interest rates and that the Government held a special share in KCM were material to the court's consideration of, respectively, the question whether monies were inappropriately being paid to Vedanta, the question whether KCM's financial position had been worsened or improved and the risk that monies might be inappropriately paid to Vedanta. The fact that the clause in the contract between the parties which provided that enforcement of any award would take place in Zambia was relevant to the question whether this court, rather than the court in Zambia, was the appropriate court to grant a freezing order in support of the large sum due under the second award. The suggestion that Vedanta had not provided the US$400m guarantee as contemplated by the Business Improvement was wrong and gave a misleading impression of the support being given by Vedanta to KCM. The failure to mention Vedanta's press release commenting upon the report of Mr. Agarwal's comments was a breach of the duty to give full and frank disclosure especially in circumstances where Mr. Hirst stressed that no attempt had been made by KCM or Vedanta to explain or justify what was said by Mr. Agarwal (see paragraphs 28 and 264 of Mr. Hirst's affidavit). It is true that the press release does not extend to an explanation of the US$500m said to have passed from KCM to Vedanta each year but given the reliance placed on Mr. Agarwal's comments Vedanta's press release ought to have been mentioned. Similarly, the press release explaining the commercial rationale for the restructuring of Vedanta in 2012 ought to have been mentioned in circumstances where reliance was placed on that restructuring. Mr. Yaluma's expression of support for KCM in his letter dated 3 March 2014 was material to the question of the attitude of government to KCM. Finally, Deloitte's comment on the sales of copper being at arm's length was material to the question whether there had been sales at undervalues to a subsidiary of Vedanta. These breaches are serious and numerous and therefore suggest that the appropriate course is to refuse to continue the WFO in order to reflect the importance of the duty to give full and frank disclosure. The fact that the WFO would otherwise be continued is not by itself a reason why the court should refuse to discontinue the WFO. But it is a factor which requires the court to consider carefully whether discontinuance of the WFO is in the interests of justice. In that regard I have considered the following matters: i) Apart from the failure to mention the exclusive enforcement clause in favour of Zambia, the respects in which U&M failed in its duty of full and frank disclosure related to the finances of KCM. They did not relate to the conduct of KCM in the arbitration or in its challenge to the second arbitration award before this court. That is the conduct from which can be inferred the risk that KCM, unless restrained, will seek to deal with its assets other than in the ordinary course of business with a view to making enforcement of the arbitration awards more difficult. ii) The failures to comply with the duty of full and frank disclosure were innocent in the sense that they were not deliberate. The very length of Mr. Hirst's first affidavit evinces an intention to put all matters thought to be relevant before the court. It may be that Mr. Hirst was aware of the exclusive enforcement clause and chose not to refer to it. But his failure to refer to it was not "deliberate" because he appears not to have appreciated its relevance. iii) The court's order must mark the importance of complying with the duty of full and frank disclosure and serve as a deterrent to ensure that persons who make ex parte applications realise that they must discharge that duty. That purpose can be satisfactorily achieved, in an appropriate case, by an appropriate order as to costs. Having considered these matters I have concluded that, notwithstanding the seriousness and number of the respects in which U&M failed in its duty of full and frank disclosure, it is in the interests of justice to continue the WFO but on terms that U&M bears its own costs of the ex parte and inter partes application and pays one-third of KCM's costs of resisting continuance of the WFO on the indemnity basis. Such an order, whilst giving legitimate protective relief to U&M, will also reflect U&M's failure to comply with its duty of full and frank disclosure.

SECOND SECTION CASE OF TERZİOĞLU AND OTHERS v. TURKEY (Applications nos. 16858/05, 23953/05, 34841/05,37166/05, 19638/06 and 17654/07) JUDGMENT STRASBOURG 16 December 2008 FINAL 05/06/2009 This judgment may be subject to editorial revision. In the case of Terzioğlu and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 25 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in six applications (nos. 16858/05, 23953/05, 34841/05, 37166/05, 19638/06 and 17654/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eight Turkish nationals, Mr Necdet Terzioğlu, Ms Fatma Terzioğlu, Mr Şencan Kanan, Mr Sezai Kerci, Mr Ömer Tuncer, Mr Mehmet Karadağ, Mr İsmail Özcan and Mr Halil Özcan (“the applicants”), on 15 April, 6 June, 2 September, 30 September 2005, 29 April 2006 and 10 April 2007 respectively. 2. The applicants were represented by Mr H. Baydar, Mr İ. Uyar, Mr G.A. Yolyapan, Mr T.B. Ulutaş, Mr M.M. Sezgin and Ms M. Adalı, lawyers practising in Çanakkale, Tekirdağ, İzmir, Denizli and Bursa. The Turkish Government (“the Government”) were represented by their Agent. 3. On 5 November 2007 the President of the Second Section decided to give notice of the applications to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1924, 1932, 1940, 1949, 1946, 1944, 1937 and 1934 respectively and live in different cities in Turkey. 5. On various dates, the applicants inherited or bought plots of land and properties near the coasts in different parts of Turkey, namely in Çanakkale, Şarköy, Izmir, Mudanya and Seferihisar. Some of the applicants constructed houses or operated commercial entities on their land. 6. On different dates, the Treasury requested from the competent courts of first instance to determine whether the applicants’ properties were located within the coastal strip. A group of experts appointed by the courts inspected the plots of land and any existing buildings on them and concluded that they were located within the coastline area. 7. Following the conclusion of the expert reports, the Treasury brought actions before the relevant courts, requesting the annulment of the applicants’ title deeds to the land and the properties, on the ground that they were located within the coastal area. 8. On various dates, the courts of first instance upheld the request of the Treasury and annulled in full the applicants’ title deeds in application nos. 23953/05, 37166/05, 19638/06 and 17654/07, whereas the title deeds in the remaining two applications were partially annulled. In their decisions, the courts held that, pursuant to domestic law (the Coastal Law of 1990), the coasts could not be subject to private ownership and that, therefore, the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the plots of land. 9. Appeals by the applicants against these judgments were dismissed by the Court of Cassation. Some of the applicants’ requests for rectification of the judgments were also rejected by that court. 10. In application no. 23953/05 the applicant brought an action for damages in the Şarköy Civil Court of First Instance on account of his loss of ownership and the demolition of four shops located on the land. On 28 October 2003 the Şarköy Civil Court of First Instance dismissed the applicant’s action on the ground that, inter alia, the State was not liable for the damage resulting from the cancellation of the registration of the property in issue. The applicant appealed. In a judgment of 24 September 2004 the Court of Cassation upheld the judgment. A rectification request by the applicant was further dismissed by the Court of Cassation on 17 March 2005. The details concerning the six applications are indicated in the table below: Application no. and date of lodging Name of the applicants Name of court and date of decision Date of final decision of Court of Cassation Date of notification of final decision of Court of Cassation 16858/05 (15.4.2005) Necdet Terzioğlu Selma Fatma Terzioğlu 26.12.2003 (Çanakkale Civil Court) 15.9.2004 20.10.2004 23953/05 (6.6.2005) Şencan Kanan 28.10.2003 (Şarkoy Civil Court) 17.3.2005 19.4.2005 34841/05 (2.9.2005) Sezai Kerci 28.10.2004 (Izmir Civil Court) 16.6.2005 8.7.2005 37166/05 (30.9.2005) Ömer Tuncer 4.7.2005 (Mudanya Civil Court) 13.6.2005 23.6.2005 19638/06 (29.4.2006) Mehmet Karadağ 25.3.2004 (Mudanya Civil Court) 16.11.2005 31.1.2006 17654/07 (10.4.2007) İsmail Özcan Halil Özcan 3.6.2003 (Seferihisar Civil Court) 26.12.2005 16.10.2006 II. RELEVANT DOMESTIC LAW AND PRACTICE 11. The relevant domestic law and practice in force at the material time are outlined in the Doğrusöz and Aslan v. Turkey judgment (no. 1262/02, § 16, 30 May 2006). THE LAW 12. In view of the similarity of the applications, the Court finds it appropriate to join them. I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 13. The applicants complained that the authorities had deprived them of their property without payment of compensation, in violation of Article 1 of Protocol No. 1, which, in so far as relevant, reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” A. Admissibility 1. Observance of the six month rule 14. The Government submitted that application nos. 16858/05, 23953/05 and 17654/07 should be dismissed for non-compliance with the six-month time-limit laid down in Article 35 § 1 of the Convention. In particular, the judgments of the Court of Cassation had been returned to the respondent registries on 7 October 2004, 27 May 2002 and 16 October 2006. 15. The applicants contested the Government’s assertions. 16. The Court observes that in the application no. 16858/05 an official note on the first-instance court’s judgment signed by a judge and the registry indicates that the judgment was served on the applicants on 20 October 2004. The applicants lodged the application on 15 April 2005. Accordingly, the Court holds that this application was lodged within the six-month time-limit. In application no. 23953/05 the Court observes that the judgment concerning the annulment of the title deed was returned to the registry on 27 May 2002. However, following the annulment of the title deed to his property, the applicant brought an action for damages on account of his loss of ownership and the demolition of his four shops. The relevant proceedings ended on 17 March 2005 when the Court of Cassation dismissed the applicant’s rectification request. The Court recalls that the Government’s similar objection was rejected by the Court in the N.A. and Others v. Turkey case ((dec.), no. 37451/97, 14 October 2004). The Court sees no reason to adopt a different stance in the instant case. In application no. 17654/07 the Court observes that the judgment of the Court of Cassation had been returned to the first-instance court’s registry on 19 January 2006. Nevertheless, it is indicated on the judgment submitted to the Court by the Government that the applicants’ lawyer obtained a copy of it on 16 October 2006. He then submitted the application to the Court on 10 April 2007. In the absence of a notification form which indicates that the judgment was served on the applicants on a date other than the one indicated on the judgment, the Court finds that the application was lodged within the six-month time-limit (see Kutluk and Others v. Turkey, no. 1318/04, § 21, 3 June 2008). 17. In the light of the above the Court rejects the Government’s preliminary objection with respect to the six-month rule. 2. Exhaustion of domestic remedies 18. The Government submitted that the applicants had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, as they had failed to make proper use of the administrative and civil law remedies available to them in domestic law. 19. The applicants contested the Government’s arguments. 20. The Court reiterates that it has examined and rejected the Government’s similar preliminary objection in previous cases (see, in particular, Abacı v. Turkey, no. 33431/02, §§ 11-18, 7 October 2008; Asfuroğlu and Others v. Turkey, nos. 36166/02, 36249/02, 36263/02, 36272/02, 36277/02, 36319/02, 36339/02 and 38616/02, § 15, 27 March 2007; Turgut and Others v. Turkey, no. 1411/03, § 80, 8 July 2008). The Court sees no reason to depart from that conclusion in the present case. Accordingly, the Court rejects the Government’s preliminary objection regarding non-exhaustion of domestic remedies. 21. The Court concludes that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 22. The Government maintained that, according to the Constitution, the coastal area belongs to the State and cannot become private property. They argued that the title-deeds were registered under the name of the applicants in breach of domestic law and the illegal transaction had been corrected by the domestic courts. 23. The applicants maintained their allegations. 24. The Court has examined similar cases on previous occasions and has found violations of Article 1 of Protocol No. 1 in respect of the annulment of title deeds acquired in good faith but later restored to State ownership without compensation being paid (see Abacı, cited above; N.A. and Others v. Turkey, no. 37451/97, ECHR 2005‑X; Doğrusöz and Aslan, cited above, §§ 26‑32; and Aslan and Özsoy v. Turkey, nos. 35973/02 and 5317/02, § 21, 30 January 2007). The Court finds no reason to depart from that conclusion in the present case. Accordingly, it finds that there has been a violation of Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 14 OF THE CONVENTION 25. The applicants also complained under Article 6 § 1 of the Convention that the domestic court decision was unfair, biased, insufficiently motivated and against the provisions of both domestic and international law. In application no. 37166/05 the applicant further alleged under Article 14 that title deeds to numerous other properties situated elsewhere on the coastline in Turkey had not been annulled. 26. The Government contested these arguments. 27. However, an examination by the Court of the material submitted to it does not disclose any appearance of a violation of these provisions. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 29. The Court notes that in application no. 19638/06 part of the applicant’s just satisfaction claims were submitted with a delay of ten days, whereas the applicant further requested an extension of the time-limit for a period of one month to submit additional documents. The President of the Chamber, pursuant to Rule 60 § 3 of the Rules of Court, decided to include these preliminary submissions in the case file for the consideration of the Court but to reject the applicant’s request for an extension. Accordingly the documents submitted afterwards were not included in the case file. A. Damage 30. The applicants claimed different amounts in respect of their pecuniary and non-pecuniary damage. 31. The Government contested the claims, arguing that they were unsubstantiated and excessive. 32. The Court reiterates that when the basis of the violation found is the lack of compensation, rather than any inherent illegality in the taking of the property, the compensation need not necessarily reflect the property’s full value (see N.A. and Others v. Turkey (just satisfaction), no. 37451/97, § 14, 9 January 2007; I.R.S. and Others v. Turkey (just satisfaction), no. 26338/95, §§ 23‑24, 31 May 2005). It therefore deems it appropriate to fix a lump sum that would correspond to an applicant’s legitimate expectations to obtain compensation (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 254‑259, ECHR 2006‑...; Stornaiuolo v. Italy, no. 52980/99, §§ 82‑91, 8 August 2006; Doğrusöz and Aslan, cited above, § 36). 33. The Court takes note of the various expert reports submitted to the Court by the applicants, assessing the value of the various plots of land in dispute. The Court dismisses the applicants’ claims concerning loss of profits as being speculative (see Aslan and Özsoy, cited above, § 25). As to the remainder, deciding on an equitable basis, the Court awards the applicants the amounts indicated in euros (EUR) in the table below for pecuniary damage: Application no. Name of the applicant Loss Amount 16858/05 Necdet Terzioğlu S.Fatma Terzioğlu Land EUR 4,000 jointly 23953/05 Şencan Kanan Land + building (commercial entity) EUR 70,000 34841/05 Sezai Kerci Land + building EUR 65,000 37166/05 Ömer Tuncer Land + building (commercial entity) EUR 70,000 19638/06 Mehmet Karadağ Land + building EUR 65,000 17654/07 İsmail Özcan Halil Özcan Land + building EUR 65,000 jointly 34. As regards the applicants’ claim for non-pecuniary damage, the Court finds that, in the circumstances of the present case, the finding of a violation constitutes sufficient just satisfaction (see Doğrusöz and Aslan, cited above, § 38). B. Costs and expenses 35. The applicants also claimed different amounts in respect of their costs and expenses incurred before the domestic courts and for those incurred before the Court. 36. The Government contested these claims, arguing that no credible evidence has been submitted by the applicants to support the purported lawyers’ fees, or costs and expenses. They also added that the amounts claimed were excessive. 37. According to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). 38. The Court takes note of the various documents submitted by some of the applicants, indicating their costs and expenses. Accordingly, and in the light of equity, the Court awards the applicants the amounts in the table below for costs and expenses. However, the Court makes no award under this head where the applicants solely referred to the respondent Bar Association’s scale of fees without submitting any documents in support of their claims (see Balçık and Others v. Turkey, no. 25/02, § 65, 29 November 2007). Application no. Name of the applicant Amount 16858/05 Necdet Terzioğlu S.Fatma Terzioğlu No award 23953/05 Şencan Kanan EUR 2,260 34841/05 Sezai Kerci No award 37166/05 Ömer Tuncer EUR 1,000 19638/06 Mehmet Karadağ No award 17654/07 İsmail Özcan Halil Özcan EUR 1,000 jointly C. Default interest 39. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join the applications; 2. Declares the complaint under Article 1 of Protocol No. 1 admissible and the remainder of the complaints inadmissible; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 in each case; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants; 5. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums, plus any tax that may be chargeable, in respect of pecuniary damage: i. application no. 16858/05, EUR 4,000 (four thousand euros), jointly, to Necdet Terzioğlu and Selma Fatma Terzioğlu; ii. application no. 23953/05, EUR 70,000 (seventy thousand euros) to Şencan Kanan; iii. application no. 34841/05, EUR 65,000 (sixty five thousand euros) to Sezai Kerci; iv. application no. 37166/05, EUR 70,000 (seventy thousand euros) to Ömer Tuncer; v. application no. 19638/06, EUR 65,000 (sixty five thousand euros) to Mehmet Karadağ; vi. application no. 17654/07, EUR 65,000 (sixty five thousand euros), jointly, to İsmail Özcan and Halil Özcan; (b) within the same three months period, the respondent State is to pay the applicants, the following sums, plus any tax that may be chargeable to the applicants, in respect of costs and expenses: i. application no. 23953/05, EUR 2,260 (two thousand two hundred sixty euros) to Şencan Kanan; ii. application no. 37166/05, EUR 1,000 (one thousand euros) to Ömer Tuncer; iii. application no. 17654/07, EUR 1,000 (one thousand euros), jointly, to İsmail Özcan and Halil Özcan; (c) that these sums are to be converted into new Turkish liras at the rate applicable on the date of settlement; (d) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 16 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 20 NOVEMBER 1980 ( ) Mr President Members of the Court, The central issue of this staff case is the expatriation allowance which is provided for by Article 69 of the Staff Regulations of Officials of the European Communities and has already been the subject of a series of decisions by the Court. The conditions for the grant of the allowance are laid down by Article 4 (1) of Annex VII to the Regulations. Under that provision the allowance is granted inter alia: “(a) to officials : Who are not and have never been nationals of the State in whose territory the place where they are employed is situated; and Who during the five years ending six months before they entered the service did not habitually reside or carry on their main occupation within the European territory of that State. For the purposes or this provision, circumstances arising from work done for another State or for an international organization shall not be taken into account;”. A second paragraph was inserted into that article by Council Regulation No 912/78 of 2 May 1978 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Comunities (Official Journal 1978 L 119, p. 1), which provides as follows: “An official who is not and has never been a national of the State in whose territory he is employed and who does not fulfil the conditions laid down in paragraph (1) shall be entitled to a foreign residence allowance equal to one quarter of the expatriation allowance”. Pursuant to that provision, the applicant, an official in the service of the Commission with Italian nationality, does indeed receive a so-called “foreign residence allowance”. He was born in Sicily in 1944 and joined his father in Belgium in 1947, where he has since lived without break; he was educated and held various posts there before his recruitment by the Commission on 17 March 1975. On 1 April 1979 he was appointed as a probationary official in Grade D 3 by decision of the Head of the Recruiting, Appointments and Promotion Division and subsequently became an established official in the same grade with effect from 1 October 1979. In view of the fact that he has retained his Italian nationality and is still enrolled on the Italian register of electors, and since his wife is also of Italian nationality and his children attend the Italian School in Bussels, the applicant is of the opinion that he is entitled to an expatriation allowance under Article 4 (1) of Annex VII to the Staff Regulations. The allowance was not granted to him and he then submitted a complaint on 19 June 1979 pursuant to Article 90 (2) of the Staff Regulations; he received notification on 25 September 1979 of the decision rejecting that complaint and thereupon lodged this application, received on 21 December 1979, whereby he claims that the Court should : Declare the application admissible and well-founded; Consequently, annul the decision notified to the applicant on 25 September 1979, whereby the Commission rejected the complaint lodged by the applicant on 19 June 1979 pursuant to Article 90 (2) of the Staff Regulations of Officials of the European Communities with the object of obtaining payment of the expatriation allowance provided for by Article 4 of Annex VII to the Staff Regulations; Order the Commission to pay the costs. My opinion on this matter is as follows : By his application duly lodged within the prescribed period, the applicant relies on the alleged illegality and Article 4 (1) of Annex VII to the Staff Regulations on which the contested decision was based, but he does not question the application of that provision. Like the Hochstrass case, which is comparable in this respect (judgment of 16 October 1980 in Case 147/79 Hochstrass v Court of Justice [1980] ECR 3005) this case raises the question (although the point is not taken by the Commission), with regard to admissibility, whether the applicant can show an interest capable of legal protection, since, even if the Court were to declare the provision in question inapplicable, the applicant would still have no claim to the expatriation allowance. However, having regard to the Court's decision in the Hochstrass case, I would seem to be justified, in view of the close connexion between the question of an interest capable of legal protection and the submissions of the parties as to the substance of the action, in turning directly to an examination of the latter question. The applicant founds his action on a submission that the illegality of Article 4 (1) of Annex VII to the Staff Regulations arises from the disregard of a superior legal principle, namely the principle of equal treatment and nondiscrimination. The provision is in breach of that principie by not granting an expatriation allowance to an official who during the five years ending six months before he entered the service habitually resided or carried on his main occuption in the State in whose territory the place where he is employed is situated, but who is not and never has been a national of that State. On the other hand, the expatriation allowance is granted to three groups of officials who, as regards “living in a foreign country” (dépaysement), are in fact in a comparable situation. First, officials who had carried on their main occupation or had habitually resided within the European territory of the State concerned for less than five and a half years before they entered the service receive the allowance. Secondly, those officals are also entitled to the allowance who, however long they had habitually resided in the State concerned, had been employed in the service of another State or or an international organization. Finally, the allowance is also granted without time-limit to officials who had worked for the Communities for more than five and a half years. The applicant claims, however, that the officials referred to above are all subject to the same material and non-material disadvantages as regard ties with their countries of origin. The different treatment is therefore unjustified and, particularly having regard to the requirements of the service, arbitrary. But the Commission, having regard particularly to previous decisions of the Court, considers the application unfounded. This opinion must, in my view, be endorsed on account of the following considerations. According to the established case-law of the Court, the principle of equal treatment or nondiscrimination only prohibits differentiation which is not objectively justified. Different treatment of officials is on the other hand permissible in so far as particular grounds exist to justify such differentiation. It is therefore necessary in the present case to examine whether the different treatment of officials with regard to the expatriation allowance provided for by Article 4 (1) (a) of Annex VII to the Staff Regulations is objectively justified. The question whether differentiation is objectively justified is closely connected with the nature and function of the expatriation allowance. The purpose of the expatriation allowance is, at the Court most recently pointed out in the Hochstrass case, referring to the judgments of 20 February 1975 in Case 21/74 Airola v Commission [1975] ECR 221 and Case 37/74 Van den Broeck v Commission [1975] ECR 235, “to compensate officials for the extra expense and inconvenience of taking up employment with the Communities and being thereby obliged to change their residence”. (Compare in this respect the judgments of 7 June 1972 in Case 20/71 Sahbatini v European Parliamen [1972] ECR 345 and Case 32/71 Bauduin v Commission [1972] ECR 363). That purpose was expressly contrasted in the Hochstrass case with the function of the foreign residence allowance granted pursuant to Article 4 (2) of Annex VII to the Staff Regulations, which is designed to “compensate for the disadvantages which officials undergo as a result of their status as aliens”. As the applicant rightly emphasizes, all officials who are not nationals of the State in whose territory the place where they are employed is situated are subject to such disadvantages. Thus the Court held in its judgment in the Hochstrass case that in basing the grant of the foreign residence allowance upon the sole criterion of nationality the Council acted within the limits of its legislative discretion. Therefore, contrary to the view taken by the applicant the illegality of the criteria governing the grant of the expatriation allowance cannot be inferred from the existence of the foreign residence allowance, which, as has been shown, is granted for reasons other than those for granting the expatriation allowance. As is apparent from the general pattern of Article 4 of Annex VII and as the Court has repeatedly held in the cases cited above, for the payment of the latter allowance “the official's habitual residence before he entered the service is the paramount consideration”, whilst “the official's nationality is regarded as being only a subsidiary consideration”. Since the expatriation allowance is intended to compensate for these disadvantages which a change of residence as a result of entering the service of the Communities entails, it is logical and not in breach of the principle of equality for the grant of that allowance to be made dependent on the habitual residence of the official before he entered the service. A particular consequence of that is that the expatriation allowance is not payable if an official's habitual residence before he entered the service was already in the country in which he is employed, since in that case entry into the service of the Communities is not the cause of the extra expense and inconvenience which the necessary change of residence entails. Indeed, officials who before entering the service had no residence at all in the country in which they are employed are in this regard in a different factual situation to officials who, irrespective of their entry into the service of the Communities, already had their habitual residence there. Moreover, the adoption of the criteria for determining whether “habitual residence” has been acquired must in principle lie within the legislative discretion of the Council, in which regard the only proviso is that those criteria may not be in breach of the principle of equal treatment. In this case, however, contrary to the opinion of the applicant, there can be no question of an arbitrary inequality of treatment. As Mr Advocate General Warner pointed out in his opinion of 3 February 1976 in the Delvaux case (Case 42/75, [1976] ECR at p. 179), in order to ascertain whether a person was habitually resident in a particular place during a particular period, it is necessary to consider inter alia to what extent he was present there during that period and what the reasons were for that presence. When adopting the provision in question the Council was clearly guided by such considerations in so far as it worked on the principle that an official cannot be deemed to have acquired an habitual residence if he resided in the country in which his place of employment is situated for a period of less than five and a half years before entering the service, or if the reason for that residence was that he was in the service of another State or an international organization. Thus it cannot be disputed that officials who were in the service of another State or of an international organization were not, despite spending a prolonged period before entering the service in the country in which they were later employed, habitually resident there in the sense that they developed close, long-term ties with that country. Such persons are, as a rule, sent to a particular country for a limited period only and during that period maintain their close ties with the State which sends them. In order to compensate for the extra expense and inconvenience which service in a foreign country entails, such officials, as far as I can see, also as a rule receive an expatriation allowance. Furthermore, in view of the foregoing considerations, there cannot be any objection to the fact the Council made the grant of the expatriation allowance dependent on the length of residence. As the Commission rightly stresses, officials who before entering the service had resided in the country in which they were later to be employed for only a relatively short period and had not yet become habiltually resident there, should not suffer any disadvantage. In the case of those officials too, it is only their entry into the service of the Communities which leads to habitual residence “in a foreign country”, for the disadvantages of which the expatriation allowance is designed to compensate. What must constitute the period of time, however, within which a person can still be considered not to have acquired an habitual residence, is ultimately a matter upon which the Council must exercise its discretion. I am unable to find any indication that the prescribed period of five and a half years constituted a misuse of such discretion. Nor can it be objected in this case (as was also emphasized by the Court in the Hochstrass case) that the Council has resorted to categorization for the sake of a general and abstract system of rules, even if in individual cases the application of the provision in question leads to certain problems, provided that it is not discriminatory having regard to the objective which it pursues. But as I have shown, that is not the case with Article 4 (1) of Annex VII to the Staff Regulations, as that provision lays down different treatment for reasons which are objectively justifiable for officials who are in different situations. Since the applicant has not shown that he fulfils the factual conditions upon which, pursuant to the aforesaid article, the grant of the expatriation allowance depends, the decision by the appointing authority to reject his complaint is not irregular. Nor is there under these circumstances any need to consider further the question of the lack of an interest capable of legal protection. My opinion, therefore, is that the Court should dismiss the application and order the parties to bear their own costs in accordance with Article 70 of the Rules of Procedure. ( ) Translated from the German.

Case C-569/07 HSBC Holdings plc and Vidacos Nominees Ltd v The Commissioners of Her Majesty’s Revenue & Customs (Reference for a preliminary ruling from the Special Commissioners of Income Tax, London) (Indirect taxation – Raising of capital – Levying of a duty of 1.5% on the transfer or issue of shares into a clearance service) Summary of the Judgment Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital (Council Directive 69/335, Art. 11(a)) Article 11(a) of Directive 69/335 concerning indirect taxes on the raising of capital, as amended by Directive 85/303, must be interpreted as meaning that it prohibits the levying of a duty on the issue of shares into a clearance service. To permit the levying of tax or duty on the initial acquisition of a newly issued security amounts in reality to taxing the very issue of that security as it forms an integral part of an overall transaction with regard to the raising of capital. That initial acquisition cannot be considered to constitute a ‘transfer’ within the meaning of Article 12(1)(a) of Directive 69/335 if it is not to deprive Article 11(a) of that directive of its practical effect and call in question the clear distinction established by those two articles between the concepts of ‘issue’ and ‘transfer’. In fact, such an interpretation would have the consequence that issues could nevertheless be subject to a tax or duty, although they, while necessarily involving an acquisition of newly issued securities, must not, under Article 11(a), be subject to any taxes or duties other than capital duty. Accordingly, a tax on that initial acquisition cannot fall within the derogation under Article 12(1)(a). Moreover, that tax cannot be considered, in reality, to apply to future transfers, since neither the tax basis of that tax nor the taxable person is determined by reference to such transfers, which are in any event hypothetical. Therefore, to the extent that that tax is levied on new securities following an increase in capital, such a tax constitutes taxation for the purposes of Article 11(a) of that directive which is prohibited by that provision. (see paras 32, 34-38, operative part) JUDGMENT OF THE COURT (Second Chamber) 1 October 2009 (*) (Indirect taxation – Raising of capital – Levying of a duty of 1.5% on the transfer or issue of shares into a clearance service) In Case C‑569/07, REFERENCE for a preliminary ruling under Article 234 EC from the Special Commissioners of Income Tax, London (United Kingdom), made by decision of 19 December 2007, received at the Court on 24 December 2007, in the proceedings HSBC Holdings plc, Vidacos Nominees Ltd v The Commissioners of Her Majesty’s Revenue & Customs, THE COURT (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, J.-C. Bonichot, K. Schiemann, J. Makarczyk (Rapporteur) and L. Bay Larsen, Judges, Advocate General: P. Mengozzi, Registrar: K. Sztranc-Sławiczek, Administrator, having regard to the written procedure and further to the hearing on 15 January 2009, after considering the observations submitted on behalf of: – HSBC Holdings plc, by R. Norton, solicitor, I. Glick QC, and D. Jowell, Barrister, – the United Kingdom Government, by M. Hall, I. Rao and R. Thomas, acting as Agents, – the Commission of the European Communities, by R. Lyal and M. Afonso, acting as Agents, after hearing the Opinion of the Advocate General at the sitting on 18 March 2009, gives the following Judgment 1 This reference for a preliminary ruling concerns the interpretation of Articles 10 and 11 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ English Special Edition 1969 (II), p. 412), as amended by Council Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) (‘the directive’), and Articles 43 EC, 49 EC or 56 EC or any other provision of European Community law. 2 The reference has been made in the course of proceedings between HSBC Holdings plc (‘HSBC’) and Vidacos Nominees Ltd, on the one hand, and the Commissioners of Her Majesty’s Revenue & Customs, on the other, concerning the levying of a tax known as ‘stamp duty reserve tax’ (‘SDRT’) pursuant to section 96 of the Finance Act 1986 (‘FA 1986’). Legal context Community law 3 Under the first and sixth recitals in the preamble to the directive: ‘Whereas the objective of the Treaty is to create an economic union whose characteristics are similar to those of a domestic market and whereas one of the essential conditions for achieving this is the promotion of the free movement of capital; … Whereas it is inherent in the concept of a common market whose characteristics are those of a domestic market that duty on the raising of capital within the common market by a company or firm should be charged only once and that the level of this duty should be the same in all Member States so as not to interfere with the movement of capital’. 4 Article 4 of the directive sets out the transactions which are subject to capital duty, including, in particular, the formation of a capital company and an increase in the capital thereof by contribution of assets of any kind. 5 Article 10 of the directive prohibits the levying of any taxes apart from capital duty in respect of the transactions referred to in Article 4 thereof. 6 Under Article 11 of the directive: ‘Member States shall not subject to any form of taxation whatsoever: (a) the creation, issue, admission to quotation on a stock exchange, making available on the market or dealing in stocks, shares or other securities of the same type, or of the certificates representing such securities, by whomsoever issued; (b) loans, including government bonds, raised by the issue of debentures or other negotiable securities, by whomsoever issued, or any formalities relating thereto, or the creation, issue, admission to quotation on a stock exchange, making available on the market or dealing in such debentures or other negotiable securities.’ 7 However, under Article 12(1)(a) of that directive, the Member States may, notwithstanding Articles 10 and 11 thereof, charge ‘duties on the transfer of securities, whether charged at a flat rate or not’. 8 Under Article 7(1) of the directive, those States must exempt from capital duty transactions which were, as at 1 July 1984, exempted or taxed at a rate of 0.5% or less. With regard to other transactions on which capital duty may be levied under the directive, they can either be exempted or charged duty at a single rate not exceeding 1%. National law 9 By virtue of section 87(1) of the FA 1986, all transfers of shares or other chargeable securities for consideration are subject to SDRT at a rate of 0.5% of the amount or value of the consideration for the transfer. SDRT is not payable where the transfer of shares is effected by means of a stock transfer form which is duly stamped in accordance with section 92 of the FA 1986. 10 Section 87(1) of the FA 1986 applies only to agreements to transfer ‘chargeable securities’. The concept of ‘chargeable securities’ is defined by section 99 of that Act and refers to shares issued by companies established in the United Kingdom or shares issued by foreign companies where those shares are registered in a register in the United Kingdom or ‘paired’ with shares issued by companies established in the United Kingdom, together with certain other rights in and over such shares. Section 86(4) of the FA 1986 states that the charge applies wherever the transaction is carried out and irrespective of the residence of the parties. 11 Section 96(1) and (2) of the FA 1986 provides: ‘1. Subject to … sections 97 and 97A below, there shall be a charge to [SDRT] under this section where: (a) a person (A) whose business is or includes the provision of clearance services for the purchase and sale of chargeable securities has entered into an arrangement to provide such clearance services for another person, and (b) in pursuance of the arrangement, chargeable securities are transferred or issued to A or to a person whose business is or includes holding chargeable securities as nominee for A. 2. … tax under this section shall be charged at the rate of 1.5% of the following: (a) in a case where the securities are issued, their price when issued; (b) in a case where the securities are transferred for consideration in money or money’s worth, the amount or value of the consideration; (c) in any other case, the value of the securities.’ 12 The term clearance service is not defined by legislation. According to the Inland Revenue Stamp Taxes manual, that term must be understood as follows: ‘14.10 Typically, a clearance service is a system for holding securities and settling transactions in them by book entry. The securities may be held indefinitely within the system, despite changes in beneficial ownership, and are held either by the company operating the clearance system or by its nominee, and are thus traded without the use of transfer documents. 14.11 Clearance services are common in continental European jurisdictions. It is common for shares to be in bearer form and this method provides physical security (the bearer certificates being held in a vault) whilst facilitating trading and settlement. 14.12 There is no SDRT on agreements to transfer securities held within a clearing service.’ 13 After the initial charge to tax, section 90(5) of the FA 1986 exempts transfers within the clearance service from the ordinary charge under section 87 of that Act. 14 Section 97A of the FA 1986 provides that the operator of the clearance service may, with the approval of the Inland Revenue (the authorities responsible for direct taxation), elect that stamp duty and SDRT are to be charged pursuant to that section. An election under section 97A of the FA 1986 comes into force on the date notified to the operator of the clearance service by the Inland Revenue in giving approval. During the period for which that election is in force, stamp duty and SDRT are chargeable, in connection with the clearance services to which the election relates (for example, on any transfer or issue under section 96(1) of the FA 1986), as they would have been chargeable apart from section 96 of the FA 1986. Accordingly, where such an election is made and approved, transfers within the clearance service are taxed at the ordinary rate of 0.5% and no charge is imposed on the entry of the relevant shares into the clearance service. 15 Section 97(4) of the FA 1986 exempts from the charge under section 96 of that Act the issue of shares in exchange for other shares that are held within a ‘clearance services scheme’, where the issuer either has control of the other company or will do so in consequence of the offer under which the exchange is made. The effect of section 97(6) of the FA 1986 is that this applies only if the other shares are themselves chargeable securities. The dispute in the main proceedings and the question referred 16 It is apparent from the order for reference that on 7 June 2000 HSBC, a company incorporated in the United Kingdom and resident there for tax purposes, made a public offer to acquire all of the issued shares of Crédit commercial de France (‘CCF’), a public company incorporated in France and resident there for tax purposes, the shares of which were listed on the Paris Stock Exchange. 17 While the offer was couched in terms of a purchase for cash of the CCF shares, it also included a share exchange alternative between the two companies at the rate of 13 shares in HSBC for one share in CCF. In order to make that option attractive for CCF shareholders residing in France, HSBC obtained a listing on the Paris Stock Exchange. As a consequence of that listing, HSBC was obliged to have an account opened in its name with the société interprofessionnelle pour la compensation des valeurs mobilières (Sicovam), that is to say, the French settlement system which, at the material time, held a monopoly in the matter for shares traded on the Paris Stock Exchange. HSBC shares could thus be received in exchange for CCF shares in one of three ways, namely: – through Sicovam, the French settlement system for shares traded on the Paris Stock Exchange; – through CREST, the United Kingdom settlement system for shares in uncertificated form, and – by their nominal registration on HSBC’s share register in certified form. 18 HSBC agreed to pay any SDRT arising on the issue of shares traded through Sicovam. Otherwise, the offer would have been financially disadvantageous and, therefore, unattractive to many French shareholders. 19 The HSBC shares issued as consideration for the acquisition of CCF securities were ‘chargeable securities’ within the meaning of section 99(3) of the FA 1986. Where they were issued to a clearance service, namely, in the main proceedings, Vidacos Nominees Ltd, Sicovam’s nominee for the United Kingdom, SDRT was payable at the rate of 1.5% of the price or value of those shares, pursuant to section 96(1) and (2) of the FA 1986. With regard to the other two options, however, no stamp duty or SDRT was payable on the issue of the shares. It was only on each subsequent transfer of shares that duty was payable at the rate of 0.5%. 20 It is apparent from the order for reference that the CCF shareholders elected to receive 255 607 131 HSBC shares through Sicovam. Of those shares, approximately 105 million, or 41%, were withdrawn from Sicovam and traded within two weeks on the London Stock Exchange. Subsequent transfers of those shares within CREST were subject to SDRT at the usual rate of 0.5%. 21 Furthermore, HSBC, whose shares remain listed on the Paris Stock Exchange, offers its shareholders the opportunity to receive dividends in the form of scrip dividends instead of cash dividends. However, when the underlying HSBC shares are held in Sicovam, the scrip dividends are issued into Sicovam, since they are, under that system, registered in the name of that company. As those shares have given rise to the payment of SDRT at the rate of 1.5%, the cost of that tax charge is passed on to HSBC’s French shareholders who hold their shares through Sicovam, with the result that those shareholders receive 1.5% fewer shares than other shareholders. 22 HSBC submitted a claim for repayment of the SDRT paid at the rate of 1.5% on shares which were issued into Sicovam. On refusal of that claim by the revenue authorities, HSBC appealed to the Special Commissioners. 23 It was in those circumstances that the Special Commissioners decided to refer the following question to the Court for a preliminary ruling: ‘Does Article 10 or Article 11 of [the directive] … , or Article 43, Article 49 or Article 56 of the EC Treaty or any other provision of European Community law prohibit the levying by one Member State (“the first Member State”) of a duty on the transfer or issue of shares into a clearance service of 1.5% when: (a) a company (“Company A”) established in the first Member State offers to acquire the listed and traded shares in a company (“Company B”) established in another Member State (“the second Member State”) in return for shares in Company A, to be issued on the stock exchange in the second Member State; (b) shareholders in Company B have the option to receive the new shares in Company A either: – in certificated form; or – in uncertificated form through a settlement system in the first Member State; or – in uncertificated form through a clearance service in the second Member State; (c) the law of the first Member State provides, in summary, that: – in the event of the issue of shares in certificated form (or in uncertificated form in the settlement system for dematerialised shares of the first Member State), duty shall not be charged on the issue of the shares but on each subsequent sale of the shares, which duty is charged at the rate of 0.5% of the consideration for the transfer; but, – on the transfer or issue of uncertificated shares to the operator of a clearance service, duty shall be charged (where the shares are issued) at the rate of 1.5% of the issue price or (where the shares are transferred for consideration) at the rate of 1.5% of the amount or value of the consideration or, (in any other case) at the rate of 1.5% of the value of the shares and, no subsequent charge is thereafter levied on sales of the shares (or of rights to or over the shares) within the clearance service; – the operator of a clearance service may, where it receives the approval of the relevant taxation authority, elect that no duty is charged on the transfer or issue of the shares to its clearance service, but that duty is instead charged on each sale of the shares within the clearance service, at the rate of 0.5% of the consideration. The relevant taxation authority may (and presently does) require, as a condition for its approval of such an election, that the operator of the clearance system seeking to make such an election should make and maintain arrangements (as the taxation authority considers satisfactory) for the collection of the duty within the clearance service and for complying or securing compliance with the regulations in relation to it; (d) the arrangements in force at the stock exchange in the second Member State require that all shares issued in that jurisdiction must be held in uncertificated form through a single clearance service established in the second Member State, the operator of which has not made the election referred to above?’ The question referred for a preliminary ruling 24 By its question, the referring court asks, in essence, whether Articles 10 and 11 of the directive and Articles 43 EC, 49 EC or 56 EC, or any other provision of Community law, prohibit the levying of a tax, such as that at issue in the main proceedings, on the occasion of the issue of shares into a clearance service. 25 As a preliminary point, it should be noted that the directive provided for complete harmonisation of the cases in which the Member States may levy indirect taxes on the raising of capital (see, to that effect, Case C-178/05 Commission v Greece [2007] ECR I-4185, paragraph 31). 26 As the Court has already held, where a matter is harmonised at Community level, national measures relating thereto must be assessed in the light of the provisions of that harmonising measure and not of those of the EC Treaty (see, to that effect, Case C-324/99 DaimlerChrysler [2001] ECR I-9897, paragraph 32 and Case C-257/06 Roby Profumi [2008] ECR I-189, paragraph 14). 27 It follows that, in order to answer the question referred for a preliminary ruling, the Court must limit itself to interpreting the directive. 28 From the outset, it should be noted that, as is apparent from the preamble thereto, the directive seeks to promote the free movement of capital, which is considered essential to the creation of an economic union whose characteristics are similar to those of a domestic market. The pursuit of such an objective presupposes, so far as taxation on the raising of capital is concerned, the abolition of indirect taxes in force in the Member States until then and the imposition in place of them of a duty charged only once in the common market and at the same level in all the Member States. 29 The directive provides in particular, in accordance with the last recital in the preamble thereto, that indirect taxes with the same characteristics as the capital duty or the stamp duty on securities whose retention might frustrate the purpose of the measures provided for therein should be abolished. Those indirect taxes, the levying of which is prohibited, are set out in Articles 10 and 11 of the directive. 30 Article 12(1) of the directive establishes an exhaustive list of taxes and duties other than capital duty which, notwithstanding Articles 10 and 11, may be imposed on capital companies in connection with the transactions referred to in those provisions (see Case 36/86 Investeringsforeningen Dansk Sparinvest [1988] ECR 409, paragraph 9). Article 12 of the directive, and in particular Article 12(1)(a) thereof, refers to the ‘duties on the transfer of securities, whether charged at a flat rate or not’. 31 In the main proceedings, the chargeable event giving rise to SDRT consists in the implementation of a specific transaction concerning the acquisition of securities newly issued on the occasion of a public offer. In that respect, as stated by the Advocate General in point 23 of his Opinion, the HSBC shares transferred into the clearance service to be exchanged for CCF shares constituted new shares, corresponding to an increase in capital. 32 It should be noted that to permit the levying of tax or duty on the initial acquisition of a newly issued security amounts in reality to taxing the very issue of that security as it forms an integral part of an overall transaction with regard to the raising of capital. The issue of securities is not an end in itself, and has no point until those securities find investors (Case C-415/02 Commission v Belgium [2004] ECR I-7215, paragraph 32). 33 For Article 11(a) of the directive to have practical effect, therefore, ‘issue’, for the purposes of that provision, must include the first acquisition of securities immediately consequent upon their issue (Commission v Belgium, paragraph 33). 34 To interpret the term ‘transfer’ referred to in Article 12(1)(a) of the directive in a way such as that proposed by the United Kingdom Government and by the Commission of the European Communities, namely that SDRT at the rate of 1.5% is a charge on share transfers in the form of a ‘season ticket’, would effectively deprive Article 11(a) of the directive of its practical effect and call in question the clear distinction established by Articles 11(a) and 12(1)(a) of the directive between the concepts of ‘issue’ and ‘transfer’. In fact, such an interpretation would have the consequence that issues could nevertheless be subject to a tax or duty, although they, while necessarily involving an acquisition of newly issued securities, must not, under that provision, be subject to any taxes or duties other than capital duty. 35 Therefore, the initial acquisition of securities immediately consequent upon their issue cannot be considered to constitute a ‘transfer’ within the meaning of Article 12(1)(a) of the directive, and, accordingly, a tax on that initial acquisition cannot fall within the derogation under that provision. 36 Moreover, a tax such as SDRT cannot be considered, in reality, to apply to future transfers, since, as stated by the Advocate General in point 38 of his Opinion, neither the tax basis of that tax nor the taxable person is determined by reference to such transfers, which are in any event hypothetical. 37 In the light of those considerations, it must be held that, to the extent that a tax such as SDRT is levied on new securities following an increase in capital, such a tax constitutes taxation for the purposes of Article 11(a) of the directive which is prohibited by that provision. 38 Consequently, the answer to the question referred is that Article 11(a) of the directive must be interpreted as meaning that it prohibits the levying of a duty, such as that at issue in the main proceedings, on the issue of shares into a clearance service. Costs 39 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Second Chamber) hereby rules: Article 11(a) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as meaning that it prohibits the levying of a duty, such as that at issue in the main proceedings, on the issue of shares into a clearance service. [Signatures] * Language of the case: English.

Mr. Justice Edis : This is an interim application on notice which was argued on 8th July 2015 and in which I have reserved the decision to be given in writing. The application is totally without merit and is refused. I have reserved my decision in order to ensure that the position is set out very clearly without the expense of a transcript for reasons which will become obvious. Mrs. McDaid has argued her case with courtesy, tenacity and passion. She has very wide experience of the civil justice system and complains that previous decisions have been made in various ways which she says are unsatisfactory, and she suggests that this is evidence of a conspiracy against her to pervert the course of justice. The hearing before me has involved consideration of the application notice, claim form, particulars of claim and a witness statement provided by the claimant. She also supplied me with her note of a judgment given by Blake J on 22nd May 2014. I have a bundle of documents and skeleton argument supplied by the defendant which contains an official transcript of the hearing at which Blake J gave that judgment. The Bundle has 20 tabs and 199 pages. I heard argument from both sides in open court. Apart from this, I have no knowledge of this case and have not discussed it with anyone. I have held no ex parte hearings. The claimant says that many previous hearings have included consideration of matters of which she was unaware and of bundles which had been tampered with. This is why I have set out exactly what material has been before me. The claim form was issued on 2nd July 2015 and says "The NMC breached its statutory duty to me and committed breaches of contract. The NMC has been negligent with my case. The NMC has committed abuses of power and abuses of process in my case. I have been racially, physically, and sexually abused and the NMC staff who owed me a duty of care did nothing. In fact there is evidence that their barrister Anupama Thompson was behind it. Consequentially I was catatonic with mental shock and the abuse absolutely beat the spirit out of me and my daughter, as I have recovered enough to seek justice and compensation in various forms. Also, as this is a public interest case immediate action needs to be taken. I suggest a summary judgment and an inquiry by Robert Francis QC." The Particulars of Claim expand on those allegations and claim, by way of relief, the sum of at least £3.3m, damages for breach of contract in the sum of at least £1m or such sum as this Honourable Court may award, interest, costs, declarations of assault and battery among others, damages for all the consequential humiliation, anxiety and distress and such further or other reliefs as this Honourable Court deems fit. This document was, the claimant told me, the result of several efforts to produce a document which the Masters of the QBD would agree could properly be issued. The interim application was issued on the same day as the claim form and seeks "Interim relief both financially and in requiring the NMC to return to the register and take out a newspaper advertisement apologising for their actions, either directions or summary judgment, to help repair my reputation. As this is a public interest case the action needs to be immediately and a public inquiry is needed." The background to this case is a series of disciplinary hearings which resulted in the judgment of Blake J in the Administrative Court in McDaid v. NMC [2014] EWHC 1862 (Admin). I will not rehearse the long history which has involved multiple hearings both before the Conduct and Competence Committee of the defendant and in court. Mrs. McDaid undoubtedly feels that she has been treated wickedly by a large number of people acting in conspiracy with each other. She goes so far as to say that at least some of them have deliberately exposed her to stress in the hope that she may commit suicide. She told me that such behaviour is successful in about 10 cases a year where, she says, nurses or midwives cannot cope with stress caused by the defendant and do commit suicide. She says that her claim is a very important matter of public interest and that either she is right, in which case something should be done to put a stop to this behaviour, or she is "mad" (I quote her) in which case she should be medically examined and treated. When I asked her what interim order she wanted me to make in the light of the lack of any power to make at least some of the orders which she had sought, she said that the very strong public interest involved in her claim meant that something had to be done and she wanted judicial scrutiny of her claim. She said that she did not seek a trial of the claim, but rather some form of judicial review of it. The claim is based on things which happened at least a year ago and often several years ago. Judicial review is not likely to be available to her because of the time limit on it, if for no other reason. The Issues for Me I have to decide i) What if any interim order to make, and whether to certify that the application is totally without merit. I have indicated at paragraph 1 above that I dismiss the application and do certify that it is totally without merit. ii) Whether to accede to the defendant's submission (there is no application) to strike out the Claim Form and Particulars of Claim as an abuse of process and as disclosing no reasonable grounds for bringing the claim. iii) Whether to make a general civil restraint order pursuant to CPR rr. 23.12(a) and (b) and 3.4(6)(a) and (b). I have certified this application as being totally without merit. Proudman J made a General Civil Restraint Order against this claimant on 15th January 2010 for two years. This did not arise out of proceedings involving the NMC. Toulson LJ (as he then was) refused as totally without merit an application for permission to appeal a case management order to the Court of Appeal Civil Division on 24th August 2012 in Judicial Review proceedings against the NMC. iv) What costs order to make. Decisions I am not satisfied that if the claim goes to trial the claimant will obtain a judgment for a substantial amount of money (other than costs) against the NMC. Therefore I have no jurisdiction to make an order for an interim payment by reason of CPR 25.7. None of the other conditions are met. The allegations made are largely based on the decision to strike off the claimant which was the subject of an unsuccessful statutory appeal before Blake J on 22nd May 2014. That being so, they face significant difficulties of proof. The other allegations are of very serious deliberate misconduct against the claimant and it is not possible to conclude that they are likely to succeed. In my judgment, there is no material on which I can be satisfied that there is a real prospect that an injunction will be granted at trial requiring them to return her to the Register. That being so an interim injunction requiring the NMC to return the claimant to the register cannot be granted. There is no power to require the NMC (either at trial or by way of an interim order) to take out a newspaper advertisement apologising for their actions. There is no jurisdiction to order a public inquiry. The claims for directions and summary judgment do not justify an interim application of this kind. There is no prospect of summary judgment in this case for reasons which I have already indicated when assessing the prospects of success for the purposes of deciding the claim for an injunction and an interim payment. Therefore this claim for interim relief is misconceived and fails. I do not intend to strike out the claim form or the Particulars of Claim. This is a matter which requires an application and argument following notice of the application to the claimant. The test for striking out a claim is not the same as that for granting an interim injunction or making an interim payment order. I should not be misunderstood as suggesting that the defendant's application, if made, is likely to fail. The criticisms of the claim and the way it is expressed in the Skeleton Argument served in opposition to this application plainly have force. However, fairness requires that Mrs. McDaid should have the opportunity to consider an application of this kind and to respond to it. I am therefore not going to entertain the application. Its merits will have to be decided on a later occasion. In my judgment it follows that I should also decline to make a General Civil Restraint Order. I anticipate that the defendant will apply to strike out this claim and, if it succeeds in doing so, a General Civil Restraint Order is very likely to be made given the history of these proceedings and of other proceedings brought by this claimant. Since I have left the fate of the claim open, I consider that I should do likewise with the General Civil Restraint Order. The claimant must pay the costs of this failed application. These are claimed at £3,000 in round figures. A significant amount of the work which was done in preparation for this hearing involved seeking a strike out of the claim and a General Civil Restraint Order. These submissions have not succeeded. If they do, the time spent will be recoverable under a costs order made then. It should be very cheap simply to resist a patently hopeless application such as the one I have decided. I therefore propose to reduce the costs bill on summary assessment taking these factors into account to £1,000. The claimant submits that no costs order should be made because she is owed money by the defendant under a previous order in her favour. This is disputed but it is not necessary to resolve that. Any issue will have to be resolved by a court which enforces the costs orders if they are not paid. In the result, the Order which will be made, drawn up and sealed is as follows (I spell this out because of the criticism Mrs. McDaid has made of the absence of a sealed order following the hearing of 22nd May 2014 before Blake J):- i) The application for interim relief made by the claimant on 2nd July 2015 is dismissed and is totally without merit. ii) The claimant will pay the defendant's costs of the application summarily assessed in the sum of £1,000.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3482 of 1984. Appeal by Special Leave from the Judgment and Order dated the 8th May, 1984 of the Patna High Court in Second Appeal No. 182 of 1978. Jayanarayan, Miss S. Agarwal D.S. Mehra and R. P. Singh for the Appellant. Lal Narain Sinha and D. P. Mukharji for the Respondent. The Judgment of the Court was delivered by FAZAL ALI. J. After hearing companynsel for the parties we are clearly of the view that the judgment of the High Court cannot be sustained for two reasons. Firstly, the High Court had earlier remanded the case to the trial companyrt and called for a finding from the trial companyrt on the question of partial eviction. The trial companyrt while recording its finding was of the view that the question of partial eviction should be companysidered in the light of the requirement of the landlord as deposed to by him. In doing so, the High Court failed to take into account the proviso to Section 12 1 c of the Bihar Building Lease, Rent Eviction Control Act of 1977, which in terms enjoins that what is necessary to be companysidered is the reasonable requirement of the landlord and whether it would be Substantially satisfied by evicting the tenant from a part only of the premises. The Court has therefore, in the first instance, to determine the extent of the premises which the landlord reasonably requires. Determine it objectively and number on the basis of his ipse dixit or his mere desire to occupy as much as he wants. But the Court has to furthermore apply a test as to whether such requirement, as the Court companysiders reasonable, will be substantially satisfied number fully satisfied by ordering partial eviction. This vital aspect has been altogether overlooked by the trial companyrt. Secondly, since the High Court had directly called for a finding from the trial companyrt itself, the High Court should have scrutinized the said finding with special reference to the question of partial eviction even on facts as the finding of the trial companyrt standing on its own number companyfirmed by appellate companyrt is number companyclusive on facts even in a second appeal. This is so because the High Court had called for a finding of fact from the trial companyrt bypassing the appellate companyrt and thus deprived the right of appeal to the District Judge last companyrt on facts which, for aught we know, might number have agreed with the trial companyrt and may have companysidered the question from the point of view indicated by us, viz, giving full effect to the companycept of reasonable extent of the requirement from the perspective of substantials satisfaction of such requirement as companysidered to be reasonable objectively. Only in case the District Judge would have agreed with the finding of the trial companyrt then it may have become a finding of fact which was binding on the High Court in second appeal. Besides the question as to the companynotation of the word substantial was itself a substantial point of law there being numberdecision of the Patna High Court on this specific point. Other Acts in various States do number embody the companycept of substantial satisfaction. These decision would therefore be of numberavail in the companytext of the facts of the present case. In these circumstances, it cannot be said that the finding of the trial companyrt, which is number the final companyrt on facts, is companyclusive and immune from the scrutiny of the High Court even in a second appeal. We therefore, allow appeal, set aside the decree of the High Court and remand the case to the High Court to decide the question fresh after companysidering the evidence on record in the light of the aforesaid observations. The appeal is disposed of accordingly. In the meantime there will be stay of dispossession.

THIRD SECTION CASE OF MIJATOVIĆ AND OTHERS v. SERBIA (Applications nos. 50117/13 and 6 others – see appended list) JUDGMENT STRASBOURG 23 October 2018 This judgment is final but it may be subject to editorial revision. In the case of Mijatović and Others v. Serbia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Pere Pastor Vilanova, President,Branko Lubarda,Georgios A. Serghides, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 2 October 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in seven applications (nos. 50117/13, 50776/13, 60349/13, 62038/13, 63099/13, 64201/13 and 68381/13) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). The applicants were all Serbian nationals and their further personal and other relevant details are set out in the appendix to this judgment. 2. The Serbian Government (“the Government”) were initially represented by their former Agent, Ms V. Rodić, who was subsequently substituted by their current Agent, Ms. N. Plavšić. 3. On 1 September 2015 and 2 November 2015 the complaints concerning the non-enforcement of the domestic decisions in question were communicated to the Government and the remainder of the applications were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS 5. The applicants complained about the failure by the national authorities to enforce final court decisions rendered in their favour. 6. All applicants obtained decisions by the Constitutional Court, which established a violation of their right to a hearing within reasonable time and awarded them certain sums in respect of the non-pecuniary damage suffered (see the appendix to this judgment). THE LAW I. JOINDER OF THE APPLICATIONS 7. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applicants’ complains should be joined, given their similar factual and legal background. II. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 8. The applicants complained under Article 6 § 1 and Article 13 of the Convention about the non-enforcement of the final court decisions rendered in their favour. In so far as relevant, these Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 9. The Government submitted that the applicants could not claim to be victims of the alleged violations. The Court considers that this objection is closely linked to the substance of the applicants’ complaints and must therefore be joined to the merits. 10. As regards the applicants in applications nos. 60349/13 and 63099/13, the Government further argued that they did not suffer any significant disadvantage since their respective enforcement requests were of a relatively small value. The Court notes that in both of these applications, the Constitutional Court had already found a violation of the applicants’ right to a trial within a reasonable time. In addition, the Government did not provide any evidence in support of their arguments. The Court therefore is unable to conclude that the proceedings in question had no real significance for the applicants and rejects the Government’s objection in that respect. 11. The Court notes that the applicants’ complaints are otherwise not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that there are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 12. The Government submitted that as all the applicants had obtained favorable decisions from the Constitutional Court they had thus lost their victim status. In the Government’s opinion, the finding of the violations in question and the awarding of compensation for the non-pecuniary damage suffered constituted sufficient redress, particularly in view of the “inactivity” of some of the applicants. 13. The applicants disagreed. 14. The Court recalls that an applicant’s status as a “victim” within the meaning of Article 34 of the Convention depends on the fact whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Vidaković v. Serbia (dec.) no. 16231/07, § 24 May 2011; Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006‑V; and Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004). 15. In this respect, the Court notes that the Constitutional Court found that the applicants’ right to a hearing within a reasonable time had been violated (see paragraph 6 above), thereby acknowledging the breach complained of and, effectively, satisfying the first condition laid down in the Court’s case law. 16. The applicants’ victim status then depends on whether the redress afforded was adequate and sufficient having regard to just satisfaction as provided for under Article 41 of the Convention (see Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004). 17. In this connection, the Court recalls that in non-enforcement cases one of the characteristics of sufficient redress which may remove a litigant’s victim status relates to the amount awarded. This amount depends, in particular, on the characteristics and effectiveness of the remedy. Thus, States which, like Serbia, have opted for a remedy designed both to expedite proceedings and afford compensation are free to award amounts which – while being lower than those awarded by the Court – are not unreasonable (see Cocchiarella v. Italy [GC], cited above, §§ 96, 97). 18. In the present cases, the Constitutional Court, in addition to the said finding of a violation, declared that the applicants were entitled to different amounts of non-pecuniary damages sought (specified in the appendix to this judgment) and in those cases where the non-enforcement proceedings were still pending, the Constitutional Court ordered the competent domestic courts to bring the impugned proceedings to a conclusion as speedily as possible. 19. Turning to the actual sums awarded to the applicants, the Court notes that compensations granted in the present cases are significantly lower compared with the sums awarded for comparable delays in the Court’s case-law. It would emphasize, in this respect, the importance of a reasonable amount of just satisfaction being awarded in the domestic system for the remedy in question to be considered as effective under the Convention. Whether the amount awarded may be regarded as reasonable, however, falls to be assessed in the light of all the circumstances of the case. These include not merely the duration of the proceedings in the specific case but the value of the award judged in the light of the standard of living in the State concerned, and the fact that under the national system compensation will in general be awarded and paid more promptly than would be the case if the matter fell to be decided by the Court under Article 41 of the Convention. 20. In the light of the material in the files and having regard to the particular circumstances of the cases, the Court considers that the sums awarded to the applicants cannot be considered sufficient and do not therefore amount to appropriate redress for the violations suffered. 21. The Court concludes that the applicants, in these circumstances, did not lose their status as victims within the meaning of Article 34 of the Convention. The Government’s objection in this regard must therefore be rejected. 22. Finally, taking into account that the non-enforcement proceedings are still pending in respect of some of the applicants (see appended table), the Court recalls that the State has an obligation to organise a system of enforcement of judgments that is effective both in law and in practice and ensures their enforcement without undue delay (see EVT Company v. Serbia, no. 3102/05, § 52, 21 June 2007). 23. In view of the above and in particular the Court’s finding regarding the victim status of the applicants, the Court concludes that in the present cases the length of the non-enforcement proceedings was excessive and failed to meet the “reasonable time” requirement. 24. There has accordingly been a violation of Article 6 § 1 of the Convention. 25. Having reached this conclusion, the Court does not find it necessary to examine essentially the same complaints under Article 13 of the Convention (see mutatis mutandis, Kin-Stib and Majkić v. Serbia, no. 12312/05, § 90, 20 April 2010). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage, costs and expenses in respect of the applicants in applications nos. 60349/13, 63099/13 and 68381/13 27. All applicants claimed compensation for non-pecuniary damage in their initial application forms, but no claims in that respect were made after the communication of the applications to the Government. In addition, only the applicant in application no. 68381/13 requested certain sums (see appended table) in respect of the legal costs incurred in the proceedings before the domestic courts, as well as those incurred before the Court. 28. The Government argued that no award should be made since the applicants failed to request non-pecuniary damage in their just satisfaction claims. 29. In respect of the non-pecuniary damage suffered, the Court makes no awards and finds no exceptional circumstances which would warrant a different conclusion (see Nagmetov v. Russia [GC], no. 35589/08, §§ 76-78, 30 March 2017). However, as regards the costs and expenses, the Court awards to the applicant in application no. 68381/13 the sum indicated in the appended table. B. Damage, costs and expenses in respect of the applicants in applications nos. 50117/13, 50776/13, 62038/13 and 64201/13 30. All applicants requested compensation for non-pecuniary damage, as well as the costs and expenses incurred before the domestic courts and the Court in their observations, while referring to the already specified amounts which they had sought in their initial application forms. The sums requested are indicated in the appended table. In addition, the applicant in application no. 62038/13 requested pecuniary damages in the amounts awarded to her by the final domestic judgment itself. 31. The Government considered the sums requested to be excessive. 32. The Court considers that the applicants sufficiently specified their just satisfaction claims (see, mutatis mutandis, Garzičić v Montenegro, no. 17931/07, § 42, 21 September 2010) and therefore awards to the applicants the sums in respect of non-pecuniary damages as well as cost and expenses as indicated in appended table, less any amounts which may have already been paid in that regard at the domestic level. However, concerning the applicant in application no. 62038/13, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. C. Default interest 33. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Decides to join to the merits the Government’s objection as to the applicants’ victim status and dismisses it; 3. Declares the applications admissible; 4. Holds that there has been a violation of Article 6 §1 of the Convention; 5. Holds that there is no need to examine separately the complaint under Article 13 of the Convention; 6. Holds (a) that the respondent State shall ensure that all necessary steps are taken to allow the domestic proceedings in those cases where they are still pending to be concluded as speedily as possible, taking into account the requirements of the proper administration of justice; (b) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table in respect of non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on these amounts, which are to be converted into the currency of the respondent State at the rate applicable at the date of settlement, after the deduction of any amounts which may have already been paid on this basis; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 23 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıPere Pastor VilanovaDeputy RegistrarPresident APPENDIX No. Application number and date of introduction Applicant name date of birth nationality Represented by Final domestic decision details Start of proceedings End of Proceedings Total length since 3 March 2004 (the date on which the Convention came into force) Constitutional Court decision details; just satisfaction awarded Non-pecuniary damages and/or cost and expenses requested in euros Amounts awarded for non-pecuniary damage and costs and expenses per applicant in euros (Plus any tax that may be chargeable to the applicants.)[1] 50117/13 19 July 2013 Biserka MIJATOVIĆ 7 December 1967 Serbian Mile PETKOVIĆ Bor Municipal Court P.1169/06 5 March 2007 15 January 2008 pending 10 years and 5 months Už-1248/10 12 December 2012 EUR 500 4,900 + 1520 3,600 + 500 50776/13 14 June 2013 Savica JOVIĆ 17 December 1970 Serbian Mile PETKOVIĆ Bor Municipal Court P.167/05 16 June 2005 7 September 2006 10 January 2014 7 years and 4 months Už-1554/10 15 November 2012 EUR 600 4,800 + 1520 3,600 + 500 60349/13 13/09/2013 Ivanka RADIN 20/04/1960 Serbian Dragan RADIN Zrenjanin P.2123/02 30/12/2008 07 May 2009 pending 9 years and 2 months Už-2667/2010 of 0 3/07/ 2013 EUR 400 - - 62038/13 26 September 2013 Vesna MARINKOVIĆ 26 December 1964 Serbian Mile PETKOVIĆ Bor Municipal Court P1.684/05 8 February 2006 7 April 2006 18 January 2016 9 years and 9 months Už-1561/10 20 February 2013 EUR 200 5,200 + 1520 3,600 + 500 63099/13 20/09/2013 Milica OPRIN 29/05/1954 Serbian Dijana MEDIĆ 06/08/1975 Serbian Glorija URUKALO 23/02/1980 Serbian Dragan RADIN Zrenjanin P.1300/02 22/04/2003 03 March 2004 (19 January 2004) 31 January 2012 7 years and 11 months Už-3191/2010 of 20/03/ 2013 EUR 900 jointly - - 64201/13 26 September 2013 Dragana MARINOVIĆ 4 April 1978 Serbian Mile PETKOVIĆ Bor Municipal Court P1.1374/07 10 October 2008 22 December 2008 16 August 2011 2 years and 10 months Už-633/11 8 May 2013 EUR 200 5,200 + 1520 1,500 + 500 68381/13 10/10/2013 Janko DRAGULOVIĆ 12/09/1943 Serbian Mile PETKOVIĆ Bor P. 1046/92 of 09/09/1993 03 March 2004 (12 September 1996) pending 13 years and 8 months Už-45/2010 28/02/2013 EUR 300 1520 500 in respect of costs and expenses [1]. Less any amounts which may have already been paid on this basis at the domestic level

Order of the President of the Court of 11 April 1960. - Barbara Erzbergbau AG and others v High Authority of the European Coal and Steel Community. - Joined cases 3-58 to 18-58, 25-58 and 26-58 R. European Court reports French edition Page 00459 Dutch edition Page 00469 German edition Page 00471 Italian edition Page 00445 English special edition Page 00220 Parties Grounds Decision on costs Operative part Parties ++++ IN CASES 3/58 - BARBARA ERZBERGBAU AG, 4/58 - GEWERKSCHAFT LOUISE, 5/58 - HERZ-LAHN-ERZBERGBAU AG, 6/58 - MANNESMANN AG, 7/58 - ERZBERGBAU SIEGERLAND AG, 8/58 - ERZBERGBAU STAUFENSTOLLN GMBH, INTERVENER : LAND OF BADEN-WURTTEMBERG 9/58 - HESSISCHE BERG - UND HUTTENWERKE AG, 10/58 - STAHLWERKE SUDWESTFALEN AG, 11/58 - HUTTENWERKE SIEGERLAND AG, 12/58 - FRIEDRICHSHUTTE AG, 13/58 - EISERFELDERHUTTE GMBH, 14/58 - NIEDERDREISBACHERHUTTE GMBH, 15/58 - GEWERKSCHAFT GRUNEBACHER HUTTE, 16/58 - BIRLENBACHER HUTTE SCHLEIFENBAUM & CO . KG, 18/58 - ILSEDER HUTTE AG, 25/58 - HUTTENWERK SALZGITTER AG, 26/58 - LUITPOLDHUTTE AG, ALL REPRESENTED BY THEIR BOARDS OF DIRECTORS OR BY THEIR MANAGERS, ASSISTED BY HEINRICH LIETZMANN, BARRISTER-AT-LAW, ESSEN, IN CASES 3 TO 16/58, 25 AND 26/58, AND BY LUDWIG RAISER, PROFESSOR OF LAW AT THE UNIVERSITY OF TUBINGEN IN CASE 18/58, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF A . WOOPEN, 2 RUE DU FORT-ELIZABETH, APPLICANTS LAND OF BADE-WURTTEMBERG REPRESENTED BY THE ACTING MINISTER-PRESIDENT AND THE MINISTER FOR ECONOMIC AFFAIRS, ASSISTED BY JOSEPH H . KAISER, PROFESSOR OF LAW AT THE UNIVERSITY OF FREIBURG, INTERVENER, V HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, W . MUCH, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS SEAT, 2 PLACE DE METZ, DEFENDANT, Grounds P . 223 DURING THE COURSE OF THE PRESENT PROCEDURE IT IS NOT NECESSARY TO DECIDE WHETHER AND IN WHAT CIRCUMSTANCES AN INTERVENER MAY CLAIM A STAY OF EXECUTION, AND IT IS SUFFICIENT TO NOTE THAT IN JUDGING WHETHER THE REQUESTS IN QUESTION ARE WELL-FOUNDED IT IS NOT NECESSARY TO TAKE INTO ACCOUNT THE REQUEST OF THE LAND OF BADEN-WURTTEMBERG TO INTERVENE IN CASE 8/58 . THE REQUESTS FOR A STAY OF EXECUTION HAVE BEEN LODGED LESS THAN SIX WEEKS BEFORE 10 MAY 1960, THE DATE ON WHICH THE JUDGMENT ON THE SUBSTANCE IS TO BE PUBLISHED . THE APPLICANTS RELY ON THE FACT THAT THE FEDERAL GOVERNMENT HAS NOW RESOLVED TO EXECUTE THE DECISIONS OF THE HIGH AUTHORITY OF 9 FEBRUARY 1958, AS IT HAS LONG BEEN REQUIRED TO DO, AS APPEARS FROM THE JUDGMENT OF THE COURT OF JUSTICE OF 8 MARCH 1960 IN CASE 3/59 . FROM THE TIME WHEN THE ABOVEMENTIONED DECISIONS WERE ADOPTED THE APPLICANTS COULD HAVE EXPECTED THEM TO BE EXECUTED AND AS FROM THAT TIME THEY COULD HAVE LODGED A REQUEST FOR A STAY OF EXECUTION WHICH MIGHT HAVE BEEN JUSTIFIED . IN PRINCIPLE, IT IS FOR AN APPLICANT TO DECIDE WHETHER IT IS APPROPRIATE TO LODGE A REQUEST FOR A STAY OF EXECUTION, AND TO DECIDE AT WHAT STAGE OF THE PROCEDURE TO LODGE IT . HOWEVER, THERE ARE OBVIOUS OBJECTIONS TO GRANTING SUCH A REQUEST WHEN IT IS LODGED AFTER THE WRITTEN PROCEDURE HAS COME TO AN END AND AFTER THE ORAL PROCEDURE ON THE SUBSTANCE, AT A TIME WHEN THE COURT HAS ALREADY COMMENCED ITS DELIBERATIONS ON THE JUDGMENT ON THE SUBSTANCE . MOREOVER, AS THE DEFENDANT HAS ALSO OBSERVED, IT IS TO BE NOTED THAT THE EXECUTION OF THE DECISIONS OF 9 FEBRUARY 1958 WILL NOT IMMEDIATELY PROVOKE DISADVANTAGEOUS CONSEQUENCES FOR SOME UNDERTAKINGS AND WILL RESULT IN ONLY PARTIAL INCREASES IN RATES FOR MOST OF THE OTHER UNDERTAKINGS . IT IS TRUE THAT THAT CONSTITUTES A DISADVANTAGE FOR THE UNDERTAKINGS AFFECTED BY THOSE MEASURES, BUT THERE WOULD NOT APPEAR TO BE ANY GROUNDS FOR THE ARGUMENT PUT FORWARD BY THE APPLICANTS THAT THESE ALTERATIONS IN RATES COULD NOT BE WITHDRAWN AT A LATER STAGE . THE FOREGOING CONSIDERATIONS REQUIRE THAT THE REQUEST BE REJECTED, AND IT IS NOT NECESSARY TO ORDER THE MEASURES OF INQUIRY PROPOSED BY THE APPLICANTS . Decision on costs THE DEFENDANT HAS NOT PUT FORWARD ANY CONCLUSIONS CONCERNING COSTS, AND IT IS NOT THEREFORE APPROPRIATE TO ORDER THE APPLICANTS TO BEAR THE COSTS . Operative part THE PRESIDENT OF THE COURT OF JUSTICE DECLARES AND ORDERS : 1 . THE APPLICATIONS ARE DISMISSED; 2 . THE APPLICANTS AND THE DEFENDANT MUST EACH BEAR THEIR OWN COSTS .

Monday 19 January 2004 THE LORD CHIEF JUSTICE: The issue in this case is whether it is an abuse of the process of the court for a claimant who has commenced proceedings, where those proceedings raise an issue covered by a group litigation order ("GLO"), who is refused permission, to join the GLO out of time to proceed with his claim, notwithstanding that refusal. The background to this appeal is that the defendants, the Nugent Care Society, successfully applied to Moses J on 15 May 2003 for an order that the claimant's claim be struck out as an abuse of the court's process pursuant to CPR 3.4.2(b) and/or the court's inherent jurisdiction. Moses J also refused the claimant's application to adjourn in order to obtain further evidence as to the claimant's capacity to manage his litigation. The latter point has not been the subject of argument on this appeal. The case has a considerable history. In the 1970s a number of young men who were then residing at different institutions were the subject of indecent assaults and other inappropriate acts. As a result of complaints which were made, information became available to the police that young men who were in the care of the defendants were complaining of such abuse. The claimant made a statement to the police at Warrington suggesting that on 16 February 1995 he had been subject to abuse while in the defendants' care. He subsequently made a claim to the Criminal Injuries Compensation Board in about February 1996 and that claim was upheld in 2000. In the meantime other individuals who alleged that they had been treated in this way commenced a group action in 1997. In respect of that group action an order in due course was made by the then Chief Justice establishing a GLO. That GLO was the subject of directions which were given by Douglas Brown J on 16 December 1998. The group action was entitled "The North-West Child Abuse Cases". 5. In the directions which Douglas Brown J gave he provided a cut-off date by which claimants would have to join the group action. That date was 31 May 1999. He also gave other directions, including a date by which individual statements of particulars had to be given, and that date was 30 September 1999. On 1 October 1999, District Judge Fairclough, who was one of the two district judges given responsibility for giving management directions in relation to those actions to which the GLO applied, extended time for the compliance with Douglas Brown J's order for certain claimants. 31 December 1999 was the last date for the individual defences. The claimant, having succeeded in obtaining an award from the Criminal Injuries Compensation Board, commenced proceedings with a claim form on 17 December 2001. Previously in September 1998 he had obtained a medical report. The date on which he commenced his proceedings was approximately two-and-a-half years subsequent to the cut-off date provided for joining the GLO. The proceedings were served on 23 January 2002. Two days later the claimant made an application for permission to join the group action. That application came before District Judge Fairclough who dismissed the application on 21 February 2002. In his judgment the district judge identified perfectly appropriate reasons for taking the course that he did. However, permission to appeal against his decision was given to the claimant on 17 June 2002. That appeal came before Poole J on 18 July 2002. It was one of a series of appeals that were before the judge on that occasion and it appears that, having heard the judgment given by Poole J in respect of other decisions which had been made in the group action, the claimant decided not to proceed with his appeal and accordingly the district judge's order stood. On 20 December 2002 the defendants made an application that the claimant's claim should be struck out as an abuse of the court's process or under the court's inherent jurisdiction. That is the application which was successful before Moses J and which leads to this appeal in respect of which the single judge has given permission to appeal to this court. The provisions which are contained in the Civil Procedure Rules dealing with group litigation were an innovation which was introduced by an amendment to the rules made in 2000. It was the experience of the courts that if litigation involving a substantial number of claimants was to be managed in the appropriate way, it was essential that there should be some procedure which provided the courts with very wide powers to manage the proceedings. It was in the court's interest for the proper dispatch of other litigation that the court should have those powers. It was also in the interests of litigants that the courts should have those powers because it would enable the court to deal with this sort of litigation in a more efficient and economic manner than would otherwise be possible. It would enable the court to provide more expeditious justice. It is therefore of the greatest importance to the proper conduct of litigation before the civil courts that, where the court decides that there should be a GLO (and that decision requires the directions of the Chief Justice), that that decision is supported by the courts. In giving his judgment Moses J was very conscious of the issues to which I have just referred. He dealt with the issues which were before him with very considerable care. In due course he gave a judgment which is a model for the clarity with which it is expressed. He started by dealing with the particular circumstances of the claimant's claim. He pointed out that no explanation of any cogency or weight whatever had been put forward for the delay in issuing the claim form by the claimant prior to the cut-off date. Having dealt with the claimant's individual circumstances he went on to deal with the position more generally. In the course of so doing he said: "15. It is an abuse for this claimant to seek to bring individual proceedings at the time he does, having failed in his application to join the group action? Secondly, even if it is an abuse, is it a proportionate response of this Court to prevent him bringing any action at all, because that would be the result of an order to strike out in pursuing his claim and seeking to vindicate his rights as a result of the treatment he suffered in the care home. 16. The starting point must be that there is no obligation upon a Claimant to join a group action. There is nothing within the rules that requires a claimant to do so. However, the overriding objective is the CPR, and the rules in relation to group actions themselves, do have the consequence that an individual may be prevented from joining a group at a later date than that which is specified in the group directions, or in issuing separate proceedings, if such may be the result, unfairness or injustice may ensure, not only to the litigants in the group action, but in relation to litigants generally, having regard to the overriding objective, and if the effect of preventing him from pursuing his claim would not be disproportionate (see the comment at paragraph 19.13.1, page 406 of the White Book 2003). The starting point must be the decision of District Judge Fairclough in refusing this claimant permission to join the group action out of time. He had regard to the effect on resources and time that would be engaged should the claimant be allowed to join the group action so long after the time he ought to have sought to join it in the absence of any cogent explanation for the delay. He took the view that if he joined, the claimant's joined, the claimant's joinder would be bound to have an effect upon the group action. 17. In my judgment, that effect can hardly be significantly less, were he to bring proceedings outside the group action...." He went on to set out the disadvantages of not adhering to the requirements of a GLO. He indicated that he accepted the evidence of Mr Spencer, filed on behalf of the defence, indicating that there will be adverse effects upon the defendants' limited resources in meeting the claims as a result of those resources having to be diverted to deal with an individual parallel claim brought by the present claimant. He then added: "21. There is, in my judgment however, a more general point. It is true that there is no obligation, as I have said, upon a claimant to join a group action. But if he does not do so, but is aware of it, then he does run the risk of being deprived of the opportunity to bring independent action should it be unjust and unfair if he would be permitted to do so. This claimant, specifically, is seeking to join the group action, accepted that there would be prejudice to that group action, and I refer to the quotation I have already cited at paragraph 12 which was part of the argument in support of his joining the group action. After all, he thought it was to his own benefit that he should join the group action, to the benefit of defendants, and to the benefit of the Court. That is no less true now than it was then. 22. The whole purpose of group actions is designed to enable resources to be directed where they can best be directed both for the advantage of the parties and of the courts. Were a claimant who had sought, but been disappointed, in his application to join a group action, permitted to bring separate action without any good reason other than a way of overcoming his previous failure to join a group action, but to the system of group actions, seems to me to be plain. 23. One has also only to contrast the position of this claimant with the position of other claimants, no doubt suffering under similar tragic circumstances to that which the claimant appears to have suffered, to see that that is a relevant issue and a significant issue in considering the fairness and justice of the case. Those who joined the group action but failed to comply with orders, have been deprived of the opportunity of pursuing their claims; their claims have been struck out. Some were allowed extensions; others were not and indeed the judge commented upon that and the need to maintain the discipline of the pursuit of the group action when he, Poole J, considered an appeal from the District Judge. 24. The result of not striking out this claim would be to give an advantage to this claimant over and above those whose cases at least had the merit of joining the group action at the appropriate time. If it was right to strike out some of their cases because they had failed to comply with time limits, it seems difficult to see why they should not be allowed now to be in exactly the same position as this claimant and bring individual actions." Moses J subsequently indicated that the fundamental basis upon which he was striking out the action derives from the fact that this claimant unsuccessfully sought to join the group action, failed because of delay and the effect upon the group action, and yet sought to launch proceeding independently in a parallel manner when the same effect would occur in relation to the group action brought on behalf of others. That statement of Moses J has to be amended to reflect the fact that the claimant had already commenced proceedings to join the group action before the application to strike out was made. Finally, Moses J considered whether striking out the claim was a disproportionate response. As to that he said that he could identify no method of preserving the integrity of the group action and its proper conduct while permitting the claimant to proceed. He said at paragraph 29: ".... if I were to refuse this application, any further directions in relation to the proper conduct of the matter would be bound to be subject, in fairness to the defendant and other litigants involved, to the same restraints and restrictions and time limits as those involved in the group action. Yet District Judge Fairclough, in his unappealed judgment, has already pointed out that would not be possible." Of the many points made by Moses J in the course of that judgment, at first sight perhaps the most powerful argument would be that claimants who were part of the group action and who did not comply with the directions given by Douglas Brown J had their actions struck out for not so doing. I have no doubt that if those claimants were to begin a separate action, having had their previous action struck out, that could indeed be an abuse of process. However, on consideration it seems to me that there is a significant distinction between a claimant who becomes part of a group not complying with a direction given by a judge (as happened as to directions here by Douglas Brown J) and the position of the claimant. In the former case the claimants had disobeyed an order of the court, whereas in the case of the present claimant he had never been subject to an order of the court which he had disobeyed. The provisions contained in Part 19 of the CPR dealing with group litigation have no requirement which would enable a court to make an order requiring a claimant to join a group action if the claimant chose not to do so. A claimant is perfectly entitled to decide to bring an action without taking that step. The fact that he has that right does not mean, however, that there are no good reasons why he should join a GLO which covers issues which will be involved in his litigation. If a claimant does not join such a GLO when it would cover his proceedings, then he is nonetheless subject to the management powers of the court. If he brings the proceedings in parallel to a GLO, the court is fully entitled to manage the proceedings which he brings in a way which takes account of the position of those who have joined the GLO. This is intended should generally happen in the case of proceedings which are suitable for the regime which the GLO creates. Those litigants who join the group action are entitled to have their interests (whether they are claimants or defendants) given higher priority than those of a defendant who does not take that course. This is because of the fact that they are likely to be large in number, but also because by joining the group action they are co-operating with the proper management of the proceedings, whereas the litigant who does not take that course is not so doing. The general sentiments expressed by Moses J in his judgment which I have cited are statements which I would firmly endorse. However, notwithstanding that, I have come to the conclusion that Moses J wrongly decided that the claimant's action had to be dismissed. In my judgment that is so, first of all, because to dismiss the claimant's case was a disproportionate reaction to his failure to take the steps which he should have taken at an earlier date which would have resulted in his becoming part of the group litigation. However, while that is so, it is also necessary to consider whether his claim could have been dismissed if he had commenced his proceedings and not then applied to join the group litigation. In my judgment, on the material available, this was not a situation where it would then have been appropriate to dismiss his claim as an abuse of the process of the court. In considering any such application the court would have taken into account the delay which had occurred before the commencement of his proceedings, but the court would only strike out the proceedings if there had been delay which, taking into account the background, could properly be described as abusive after the proceedings had been commenced. Otherwise the situation was one where, if the proceedings were to be brought to an end they would normally have to be brought to an end because of the claimant's failure to comply with the requirements of the Limitation Acts and the periods prescribed for bringing proceedings, bearing in mind the generous discretion which courts have to set aside those limitation periods in appropriate cases. In this case the issue of limitations is not before us, and it was not in the lower court, suggested that the proceedings could have been struck out for non-compliance with the limitation requirements. Accordingly, on the grounds of delay alone it would not be possible to have made an order bringing the proceedings to an end. For that draconian order to be made requires a clear case and there was certainly no clear case here. It is also necessary to consider whether other action could be taken by the courts to protect the position of the defendant if he was faced with separate and parallel proceedings by the claimant. In my view in this case it is important that the position of the defendant is fully recognised. However, while fully recognising that position, it is my view that the court could take steps which would fairly protect the defendant. In particular the court may make an order staying the claimant's action until after the completion of the group action (or at least until after the completion of part of that action). In addition, if the court were to impose a stay, it may identify conditions upon which it would be prepared to remove the stay. Those conditions might include a requirement that the claimant should be bound by generic decisions in the group action so far as they affect the claimant's case. Finally, the court has very wide powers in regard to costs. It may make an order to protect a defendant (in the event that a costs order was made against the defendant) from having to pay any costs in addition to those which the defendant would have had to pay even if the claimant had been a party to the group action. Having regard to the steps which the court may take to protect the position of a defendant (only some of which steps have been specifically identified), I regard it as disproportionate to have dismissed the claimant's claim. I would therefore allow this appeal, restore the claimant's claim, and impose a stay in respect of that claim until an application is considered by Holland J, brought by the claimant for directions as to the future management of the claimant's claim. Holland J is the High Court Judge in charge of the group action and he is in the ideal position to decide what orders need to be made. He should decide at what stage of the proceedings it would be appropriate for the claimant's claim to come before the court. He may, for example, decide that although District Judge Fairclough's decision was correct at the time that it was made, because of the delay that has taken place in the group action since that time it would be sensible for the claimant's case now to become part of the group action. I venture no opinion as to this. I leave the matter entirely to Holland J. There are no doubt alternative steps which may be taken by the judge, to which I have not referred. Counsel should, so far as it is practicable for them to do so prior to the hearing before the judge, indicate the directions which they seek in order that a result can be achieved which meets the justice of this case. I would allow the appeal and order accordingly. LORD JUSTICE TUCKEY: I agree. LORD JUSTICE WALL: I also agree. ORDER: (Not part of judgment) Appeal allowed; appellant to have half of the costs of the appeal, to be subject to a detailed assessment if not agreed (to be dealt with at the end of the litigation); the order for costs in relation to the hearing below to be set aside.

Leave granted. Heard learned companynsel for the appellant-Corporation. There is numberappearance on behalf of the respondents in spite of service of numberice. Respondents filed an application under Sec.166 of the Motor Vehicles Act, 1988, in short the Act for companypensation of Rs.12,00,000/-. It was their case that one M.Amarender Reddy hereinafter referred to as deceased was traveling in a bus owned by the Corporation. The driver of the bus, who was driving the vehicle in a rash and negligent manner, suddenly applied the brakes as a result of which the deceased was thrown out of the bus and was injured and ultimately succumbed. He was aged about 24 years of age. -2- The learned Additional District Judge, Motor Accidents Claims Tribunal, in short MACT Hyderabad, held that the deceased was also partly responsible for the accident as he was traveling on the footboard of the vehicle. Therefore, the companytributory negligence was fixed at 25 and companysequential deduction was made by fixing the monthly income of the deceased at Rs.3,000/-. Accordingly an amount of Rs.2,58,000/- was awarded as companypensation with interest at 12 p.a. from the date of the claim. An appeal was preferred by the claimants before the High Court. The Corporation also filed appeal before the High Court. By the impugned judgment, the High Court held that there was numbernegligence on the part of the deceased. It enhanced the companypensation by Rs.204,000/- with interest at 6 p.a. from the date of claim till dfate of realization. It is to be numbered that the MACT had worked out the loss of dependency at Rs.1,500/- by deducting 50 of the monthly income. The High companyrt reduced the deduction to Rs.1,000/- p.m. It is to be numbered that the appeal filed by the Corporation was dismissed.

RAJENDRA BABU, J. The second respondent was numberified under Section 3 2 of the Special Court Trial of Offences Relating To Transactions In Securities Act, 1992 hereinafter referred to as the Act as a person involved in offences relating to transactions in securities during the period mentioned therein. Respondent No. 1, who is the Custodian appointed under Section 3 1 of the Act, on inquiry with the appellant, came to know that they had received a cheque for a sum of Rs. 20 lakhs from the second respondent for purchase of certain shares, without, however, mentioning the names of the ten shareholders to whom the shares were to be issued. The appellant claimed that they had allotted and sent the necessary share certificates to the second respondent and they also sent photocopies of the share certificates thereof to the Custodian. The Custodian, by letter dated March 28, 1994, informed the appellant that the share certificates would be the property of the second respondent and would stand attached and there should be numbertransfer in respect of these shares. The Custodian on September 27, 1994 filed an application before the Special Court under the Act for return of a sum of Rs. 20 lakhs along with interest. It was brought out in the proceedings before the Special Court that by a letter dated November 5, 1991 the appellant informed the second respondent that shares of their companypany worth Rs. 20 lakhs were to be sold. On November 13, 1991 the second respondent sent a cheque for a sum of Rs. 20 lakhs and on November 15, 1991 the appellant forwarded to the second respondent 15 applications for purchase of shares on buy-back basis. A resolution was made on November 15, 1991 at the meeting of the Board of Directors of the appellant to allot and issue shares to the investors and to companyplete formality and physical allotment in due companyrse. On November 23, 191 the appellant sent to the second respondent application forms so that they may be filled up by its clients. The claim put forth by the appellant is that they had allotted shares to the second respondent and that they had forwarded to the second respondent the certificates for 2 lakh shares. But the second respondent claimed that numbersuch share certificates were ever forwarded by the appellant to them and their claim is that numberallotment had been made at all. It was argued before the Special Court that in the background that the allotment had been accepted by the Custodian in letter dated March 28, 1994 and, therefore, the only claim of the Custodian can number be in respect of the share certificates and that Rs. 20 lakhs have been paid towards subscription for shares, the Custodian cannot number claim back the same. The Special Court rejected this companytention. The Special Court came to the companyclusion that there has been numberallotment of shares at all inasmuch as there can be numberallotment of shares in blank and in the companyies of the share certificates produced before the Special Court numbernames have been entered. No application had been filed by the second respondent in terms of Section 41 2 of the Companies Act agreeing to become a member of the companypany and his name be entered in the Register of Members. On examination of the Register of Members, the Special Court found that there were certain suspicious circumstances which clearly indicated the fact that the second respondent had never made an application in writing for allotment of shares. The Special Court further examined the matter with reference to the distinctive numbers of the shares which revealed a lot of suspicion to the effect that their names in the Register of Members were made sometime after the letter was sent by the Custodian only to over-come the difficulty of an application being made by him and long after the second respondent was numberified. Therefore, the allotment is purportedly to be made in his name without any application in writing and only with a view number to return the money belonging to the numberified party. Further, there is numberintimation to the Registrar of Companies either for filing a return of the statement stating the number, the numberinal amount of the shares, the names, addresses, occupation of the allotees and the amounts, if any, paid or due and payable on each share. Thus on the basis of these circumstances and certain other attendant circumstances, the Special Court came to the companyclusion that there was numberallotment of shares and it is number number open to the appellant to make such an allotment of shares and, therefore, it directed the repayment of the sum of Rs. 20 lakhs with interest. Alternatively, the Special Court held that the sale purchase of shares was on a buy-back basis and it was only an arrangement for financing and even on that basis the price must be the original price plus some amount for interest at a reasonable rate and that must be repaid. In companyclusion, the Special Court directed the appellant to pay the Custodian for and on behalf of the second respondent a sum of Rs. 20 lakhs together with interest thereon 18 per annum from November 13, 1991 till payment. Challenging this order several grounds have been raised in the appeal but at the time of hearing only two companytentions are put forth before us by the learned companynsel for the appellant. In the first place, he companytended that the Special Court had numberjurisdiction to entertain the application of respondent No. 1, the Custodian, since the matter did number relate to any offence companytemplated under Section 3 of the Act. The learned companynsel drew our attention to the scheme of the Act to impress upon us that the Special Court does number have any jurisdiction to entertain an application for declaration to the effect that a sum of Rs. 20 lakhs in question belong to the second respondent. Section 7 of the Act provides for the jurisdiction of the Special Court in respect of transaction for any offence referred to in Section 3 2 of the Act and bars the jurisdiction of any other companyrt. If the matter stood thus, the companytention put forth on behalf of the appellant perhaps needs further examination. Now after the insertion of Section 9A with effect from 25 January, 1994 the Special Court exercises the jurisdiction of a civil companyrt in relation to any matter or claim a relating to any property standing attached under Section 3 3 of the Act, and b arising out of transactions in securities entered into after the Ist day of April, 1991 and on or before the 6th day of June, 1992, in which a person is numberified under Section 3 2 is involved as a party, broker, intermediary or in other manner. Sub-section 3 of Section 9A bars the jurisdiction of other companyrts in respect of these matters. Therefore, the Special Court is the only companyrt which can inquire into and deal with the matters of this nature where the transaction companyered by Section 9A or property standing attached under Section 3 3 is involved and, therefore, we think the first companytention urged on behalf of the appellant is plainly misconceived and stands rejected. The second companytention put forth on behalf of the appellant is that the shares are granted and, therefore, on the allotment of shares the money does number belong to respondent No. 2 but to the appellant. In the narration of facts made earlier while referring to the proceedings in the Special Court out of which this appeal arises we have stated the various circumstances taken numbere of by the Special Court in number accepting that there had been any allotment of shares. A few of these circumstances are firstly, there can be numberallotment of shares to unknown persons secondly, allotment can be made to a person who becomes a member of the companypany when an application is made to that effect, and thirdly, numberapplication was made to the companypany by the second respondent in that regard was forthcoming. Cloud of doubts was cast upon the entries in the Register of Members and the distinctive numbers of the shares and, therefore, the finding of fact recorded by the Special Court that there had been numberallotment at all and it was sought to be made only after the second respondent was numberified under the Act to avoid payment of money of a sum of Rs. 20 lakhs cannot be seriously disputed. We find numbergood reason to interfere with the said finding and the second companytention urged also stands rejected. The Special Court was also justified in numbericing that the transaction between the parties was really a financial arrangement with the buy-back agreement and even on that basis a sum of Rs. 20 lakhs with interest can be ordered to the paid to the Custodian.

JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber) 28 April 2009 Case/07 Marie-Thérèse Balieu-Steinmetz and Lidia Noworyta v European Parliament (Civil service – Officials – Remuneration – Fixed allowance for overtime – Article 3 of Annex VI to the Staff Regulations – Article 56 of the Staff Regulations – Internal rules on the fixed allowance for overtime – Internal rules on compensation for overtime – Equal treatment) Application: brought under Articles 236 EC and 152 EA, in which Ms Balieu-Steinmetz and Ms Noworyta seek, first, a declaration that the first article of the internal rules concerning the fixed allowance for overtime adopted by the Parliament’s Secretary-General pursuant to Article 3 of Annex VI to the Staff Regulations is illegal, and second, annulment of the Parliament’s implied decision of 13 November 2006 rejecting Ms Balieu-Steinmetz’s request of 13 July 2006, and the Parliament’s decision of 18 December 2006 rejecting Ms Noworyta’s request of 5 July 2006, both requests seeking payment of the abovementioned fixed allowance. Held: The Parliament’s implied decision of 13 November 2006 rejecting Ms Balieu-Steinmetz’s request of 13 July 2006, and the Parliament’s decision of 18 December 2006 rejecting Ms Noworyta’s request of 5 July 2006 are annulled. The Parliament is to bear all the costs. Summary 1. Officials – Actions – Action against a measure of general application (Art. 236 EC; Staff Regulations, Art. 90) 2. Officials – Equal treatment – Limits – Advantage unlawfully granted – Refusal to grant a fixed allowance to an official despite that allowance being paid to other officials in a comparable situation 1. The Civil Service Tribunal does not have jurisdiction to adjudicate on claims directly seeking a declaration that a measure of general application, such as a provision of the Staff Regulations, is illegal. (see para. 20) 2. An institution’s decision refusing to grant a fixed allowance to an official even though other officials in a comparable situation receive it, a decision which is based on the unlawful nature of the payment of that allowance to the latter officials, infringes the principle of equal treatment where the institution cannot satisfactorily prove that the payment of the allowance to those officials has no legal basis, since measures adopted by the Community institutions are presumed to be lawful. (see paras 28-30, 32, 36, 42) See: 188/83 Witte v Parliament [1984] ECR 3465, paras 13 to 15 T-30/90 Zoder v Parliament [1991] ECR II‑207, para. 26; T-272/94 Brulant v Parliament [1996] ECR-SC I‑A‑513 and II‑1397, para. 35; T-22/99 Rose v Commission [2000] ECR-SC I‑A‑27 and II‑115, para. 39; T-157/99 Griesel v Council [2000] ECR-SC I‑A‑151 and II‑699, para. 25; judgment of 8 July 2003 in T-65/02 Chetaud v Parliament, not published in the ECR, para. 44; T-120/04 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, para. 77; T-379/04 J v Commission [2006] ECR-SC I‑A‑2‑313 and II‑A‑2‑1575, para. 79 /07 Skoulidi v Commission [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 81

Order of the President of the Court of First Instance of 19 December 2001. - Government of Gibraltar v Commission of the European Communities. - Proceedings for interim relief - State aid - Decision to initiate a formal investigation procedure - Admissibility - Prima facie case - Urgency - None - Balancing of interests. - Joined cases T-195/01 R and T-207/01 R. European Court reports 2001 Page II-03915 Summary Parties Grounds Operative part Keywords 1. Applications for interim measures - Conditions governing admissibility - Admissibility of the main application - Application for annulment of a Commission decision to initiate a formal investigation procedure in respect of an aid in the course of implementation - Decision producing legal effects - Main application not prima facie inadmissible (Arts 88(2) EC, 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(1)) 2. State aid - Commission decision to initiate a formal investigation procedure in respect of an aid in the course of implementation - Decision capable of being the subject of an action for annulment and of an application for interim measures - Judicial review - Need to demonstrate a manifest error of assessment (Art. 88(2) EC; Rules of Procedure of the Court of First Instance, Art. 104(2)) 3. Applications for interim measures - Suspension of operation of a measure - Interim relief - Conditions for granting - Urgency - Assessment criteria - Decision to adjudicate on the substance of the action under an expedited procedure within the meaning of Article 76a of the Rules of Procedure of the Court of First Instance - Not relevant (Rules of Procedure of the Court of First Instance, Arts 76a and 104(2)) 4. Applications for interim measures - Suspension of operation of a measure - Interim relief - Conditions for granting - Serious and irreparable damage - Standard of proof - Harm dependent on the occurrence of future and uncertain events (Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2)) 5. Applications for interim measures - Suspension of operation of a measure - Interim relief - Conditions for granting - Balancing of all the interests involved - Commission decision to initiate a formal investigation procedure in respect of an aid - Exceptional circumstances necessary to justify the grant of interim measures (Arts 88(2) EC, 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2); Council Regulation No 659/1999) Summary 1. A decision adopted by the Commission to initiate a formal investigation procedure in respect of an aid measure in the course of implementation produces specific legal effects and may, therefore, be challenged immediately before the Community judicature, without having to await the adoption of the final decision concluding that procedure. An interested party who initiates such an action may apply for interim relief. ( see para. 59 ) 2. A decision to initiate a formal investigation procedure in respect of a State aid measure which has already been implemented, where a Member State wishes to continue to apply it pending a definitive decision by the Commission, may always be simultaneously challenged before the Community judicature and be the subject of an application for interim relief, despite the absence of any injunction to suspend the measure at issue. However, review by the Community judicature in the context of such an application must be precisely circumscribed in order to ensure that the Commission is not prevented from carrying out the preventive control provided for in the Treaty. Such circumscription would seem even more appropriate since the Commission has no discretion as regards whether to initiate a formal investigation procedure when it encounters serious difficulties in classifying a State measure and determining its compatibility with the common market. In view of the broad discretion which the Commission must enjoy in so far as concerns the provisional assessment of the facts and elements of relevant national law, the applicant must, prima facie, prove that a manifest error of assessment has occurred in order ultimately to obtain the annulment of a decision finding the existence of serious doubts as to whether a State measure constitutes new, rather than existing, aid. ( see paras 76-77, 79 ) 3. The mere fact that the Court of First Instance decided, on application by the Commission, to adjudicate on the substance of the action under an expedited procedure cannot influence either the assessment of urgency or, should it prove necessary, the balancing of the interests concerned by the judge hearing the application for interim measures. The relevant criteria of the existence of a particular urgency, which, under Article 76a(1) of the Rules of Procedure of the Court of First Instance, is to be satisfied if the Court is to adjudicate under an expedited procedure, are only partly the same as those which govern the assessment of the condition of urgency that must be satisfied before the judge hearing an application for interim measures is able to adopt such measures. ( see para. 94 ) 4. The urgency of an application for interim measures must be assessed in relation to the necessity for an order granting relief in order to prevent serious and irreparable damage to the party requesting the interim measure. It is for the party who pleads serious and irreparable damage to prove its existence. It does not have to be established with absolute certainty that the harm is imminent; it is sufficient that the harm in question, particularly where it depends on the occurrence of a number of factors, should be foreseeable with a sufficient degree of probability. Damage which is entirely hypothetical in so far as it is based on the occurrence of future and uncertain events cannot justify granting the interim measures. ( see paras 95-96, 101 ) 5. The mere fact that a Commission decision to initiate a formal investigation procedure in respect of aid may give rise to uncertainty as to the legality of implementing a non-notified State measure does not suffice to justify the balance of interests being opposed to such a measure being maintained in force. The Community interest on behalf of which the Commission exercises its fundamental role, under Article 88 EC, of ensuring that the common market is not distorted by aid that has not been notified and/or that is incompatible with the common market must, except in truly exceptional circumstances, prevail, at the stage of the adoption of a decision to initiate the formal investigation procedure, over the interest which a Member State may have in obtaining an interim decision preventing the Commission from examining, within the framework of Article 88(2) EC and Regulation No 659/1999, whether a specific measure constitutes new aid and, if so, whether it is incompatible with the common market. It is difficult to envisage the circumstances which, in the absence of a particularly serious prima facie case and manifest urgency, would justify suspension by the judge hearing an application for interim measures of a decision which, in regard to a non-notified State measure that has already been implemented, is limited to initiating a formal investigation procedure. ( see paras 109-110, 115 ) Parties In Joined Cases T-195/01 R and T-207/01 R, Government of Gibraltar, represented by A. Sutton, M. Llamas, Barristers, and W. Schuster, lawyer, with an address for service in Luxembourg, applicant, v Commission of the European Communities, represented by V. Di Bucci and R. Lyal, acting as Agents, with an address for service in Luxembourg, defendant, APPLICATION for interim measures in respect of the decisions of the Commission of 11 July 2001, notified to the Government of the United Kingdom by letters SG(2001) D/289755 and SG(2001) D/289757, to initiate the procedure provided for by Article 88(2) EC in respect of alleged State aid granted under Gibraltarian legislation to exempt and qualifying companies respectively, THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES makes the following Order Grounds Legal framework Community legislation 1 Article 87(1) EC provides that, save as otherwise provided, State aid is prohibited. In order to ensure the effectiveness of that prohibition, Article 88 EC places on the Commission a specific duty of monitoring aid and, on the Member States, precise obligations intended to facilitate the Commission's task and to prevent the Commission being presented with a fait accompli. 2 Thus, pursuant to Article 88(1) EC, the Commission, in cooperation with Member States, keeps under constant review all systems of aid existing in those States and may propose, where necessary, to the latter any appropriate measures required by the progressive development or by the functioning of the common market. So far as concerns any plans to grant or alter aid, Article 88(3) EC requires that the Commission should be informed in sufficient time to enable it to submit its comments. According to the second sentence of that provision, if it considers that a notified plan is not compatible with the common market, the Commission is to initiate the procedure provided for in Article 88(2) EC. Finally, the Member States are required not to put their proposed measures into effect until the Commission has adopted a final decision on whether those measures constitute aid and whether or not they are compatible with the common market. 3 Article 1 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1), which entered into force on 16 April 1999, contains the following definitions which are relevant to the present proceedings: (a) "aid" shall mean any measure fulfilling all the criteria laid down in Article [87](1) of the Treaty; (b) "existing aid" shall mean: (i) ... all aid which existed prior to the entry into force of the Treaty in the respective Member States, that is to say, aid schemes and individual aid which were put into effect before, and are still applicable after, the entry into force of the Treaty; (ii) authorised aid, that is to say, aid schemes and individual aid which have been authorised by the Commission or by the Council; ... (v) aid which is deemed to be an existing aid because it can be established that at the time it was put into effect it did not constitute an aid, and subsequently became an aid due to the evolution of the common market and without having been altered by the Member State. Where certain measures become aid following the liberalisation of an activity by Community law, such measures shall not be considered as existing aid after the date fixed for liberalisation; (c) "new aid" shall mean all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid; ... (f) "unlawful aid" shall mean new aid put into effect in contravention of Article [88](3) of the Treaty; ... 4 According to Articles 2(1) and 3 of Regulation No 659/1999, any plans to grant new aid shall be notified to the Commission in sufficient time by the Member State concerned and it must not be put into effect before the Commission has taken, or is deemed to have taken, a decision authorising such aid. Article 4(4) provides that the Commission is to initiate proceedings pursuant to Article 88(2) EC (hereinafter referred to as a decision to initiate the formal investigation procedure) if doubts are raised as to the compatibility with the common market of a notified measure. 5 According to the first sentence of Article 6(1) of Regulation No 659/1999, a decision to initiate the formal investigation procedure shall summarise the relevant issues of fact and law, shall include a preliminary assessment of the Commission as to the aid character of the proposed measure and shall set out the doubts as to its compatibility with the common market. 6 As regards non-notified measures, Article 10(1) of Regulation No 659/1999 provides, that [w]here the Commission has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without delay. Article 13(1) provides that such examination is to result in a decision, where appropriate, to initiate the formal investigation procedure. According to Article 11(1), [t]he Commission may, after giving the Member State concerned the opportunity to submit its comments, adopt a decision requiring the Member State to suspend any unlawful aid until the Commission has taken a decision on the compatibility of the aid with the common market. 7 So far as concerns recovery of aid, Article 14(1) of Regulation No 659/1999 provides that, [w]here negative decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary ..., unless requiring such recovery were to be contrary to a general principle of Community law. According to Article 15(1), the powers of the Commission to recover aid shall be subject to a limitation period of 10 years. 8 The procedure regarding existing aid schemes is laid down in Articles 17 to 19 of Regulation No 659/1999. According to Article 18, where the Commission ... concludes that the existing aid scheme is not, or is no longer, compatible with the common market, it shall issue a recommendation proposing appropriate measures to the Member State concerned. Where the Member State concerned does not accept the measures proposed and the Commission, despite the observations submitted by that Member State, still considers that those measures are necessary, Article 19(2) requires the Commission to initiate a formal investigation procedure. Status of Gibraltar and the legislation at issue 9 Since Gibraltar is a European territory, within the meaning of Article 299(4) EC, for whose external relations the United Kingdom of Great Britain and Northern Ireland is responsible, the provisions of the Treaty apply there. However, by virtue of Article 28 of the Act concerning the conditions of accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, annexed to the Treaty relating to their accession (OJ 1972 L 73, p. 5), acts of the institutions of the Community relating, in particular, to the harmonisation of legislation of Member States concerning turnover taxes, shall not apply to Gibraltar, unless the Council decides otherwise. However, it is not disputed that the rules of Community law on competition, including those relating to State aid granted by the Member States, do apply. 10 The present cases concern two pieces of company law legislation concerning exempt and qualifying companies respectively. The former are not actually present in Gibraltar while the latter have a bricks and mortar presence there and are active in various sectors. 11 On 9 March 1967, the House of Assembly (hereinafter the Legislature) of Gibraltar enacted Ordinance No 2 of 1967, known by its short title, the Companies (Taxation and Concessions) Ordinance. That Ordinance was amended in 1969 and 1970, and was amended on 10 further occasions following the accession of the United Kingdom, namely in 1974, 1977, 1978, 1983, 1984, 1985, 1987, 1988, 1990 and 1993. In the present proceedings, it is the version of that Ordinance, as amended in 1978 and 1983 (hereinafter referred to as the exempt companies legislation), which is relevant. 12 In order to qualify for exempt company status, a company must meet the conditions set out in Section 3 of the exempt companies legislation. Those conditions include the prohibition of carrying on or transacting any trade or business in Gibraltar, other than with other exempt companies, and, according to the information provided at the hearing, with qualifying companies. No Gibraltarian or resident of Gibraltar may hold or be interested in holding any of the shares in an exempt company other than as a shareholder in a public company. 13 According to Section 8 of the exempt companies legislation, subject to some limited exceptions, an exempt company is exempted from the payment of income tax in Gibraltar and is liable only to taxation at a fixed sum of GBP 225. In addition, by virtue of Section 9 of the exempt companies legislation, any shares in, loans made to, or debentures held in, an exempt company are exempt from estate duty. 14 On 14 July 1983, the Legislature of Gibraltar enacted Ordinance No 24 of 1983, known by its short title of Income Tax (Amendment) Ordinance 1983. That Ordinance introduced the definition of a type of company known as a qualifying company into the text of Ordinance No 11 of 1952, known by its short title, Income Tax Ordinance, and certain provisions relating to that type of company. The detailed rules for the implementation of those new provisions were adopted by way of the Income Tax (Qualifying Companies) Rules of 22 September 1983. Ordinance No 24, cited above, and the 1983 Rules (hereinafter referred to as the qualifying companies legislation) constitute the legislation applicable to qualifying companies at issue in the present proceedings. 15 The conditions for the grant of qualifying company status are, essentially, identical to those set out above for exempt company status. 16 Under Section 41(4) of the Income Tax Ordinance, qualifying companies are liable to tax charged on profits, but the rate must not exceed the rate of corporation tax charged in Gibraltar (currently fixed at 35% of profits). There is no legislative provision laying down precisely the actual rate of tax which a qualified company must pay. However, all those companies pay, according to the information in the case-file and provided at the hearing, tax at a rate which is negotiated with the Gibraltar tax authorities and which ranges between 2% and 10% of profits. Section 41(4)(b)(c) of the Income Tax Ordinance also provides that fees payable by a qualifying company to a non-resident person (including directors' fees), and dividends paid to shareholders, are taxed at the same rate as that applicable to that company's profits. Finally, the Stamp Duty Ordinance provides that there is no need to pay stamp duty on the transfer of shares in a qualifying company, on the issue of life assurance policies or on annuities payable by such companies, or on any sale, mortgage or other dealings relating to such policies or annuities. Background to the dispute 17 By letter of 12 February 1999, the Commission requested the Permanent Representative of the United Kingdom to the European Union to provide general information on, inter alia, five tax schemes in operation in Gibraltar which were already being examined by the Council under the Code of Conduct for Business Taxation (annexed to the Conclusions of the ECOouncil meeting of 1 December 1997 on fiscal policy, OJ 1997 C 2, p. 1, hereinafter the code of conduct), and in a group, currently chaired by Ms Primarolo (hereinafter the Primarolo Group), established in 1997 by the Council, comprising national high-level tax experts and a Commission representative. 18 The legislation under examination included the exempt companies legislation and the qualifying companies legislation. The Government of the United Kingdom provided the requested information by letter of 22 July 1999 and requested a meeting with the relevant Commission services to discuss that legislation. 19 On 23 May and on 28 June 2000, the Commission sent a letter and a reminder, respectively, to the United Kingdom Permanent Representative requesting further information concerning the abovementioned legislation. 20 The Permanent Representative of the United Kingdom replied by letter dated 3 July 2000, in which it enclosed a copy of both the 1967 exempt companies Ordinance, as amended in 1983, and the version of 1983 Ordinance on qualifying companies as in force in 1984. 21 By letter of 14 July 2000 to the Permanent Representative of the United Kingdom, the Commission stated, on the basis of information which it had in its possession, that the exempt companies legislation appeared to constitute an operating aid incompatible with the common market. In order to determine whether it constituted existing aid, it also requested a copy of the Ordinance in its original 1967 version and invited the United Kingdom, pursuant to Article 17(2) of Regulation No 659/1999, to submit its comments. 22 The Permanent Representative of the United Kingdom replied to the Commission by letters of 3 August and 12 September 2000 by providing, in the former, a copy of the original version of the legislation together with the amendments made in 1969, 1970, 1977 and 1978 and by reiterating its request for a meeting with the Commission. In the latter, it repeated that request and passed on to the Commission a document drawn up by the Government of Gibraltar setting out the reasons why it considered that the exempt companies legislation does not constitute State aid. 23 A meeting took place in Brussels on 19 October 2000 between the representatives of the United Kingdom Government and the Commission. The United Kingdom also invited representatives of the Government of Gibraltar to attend that meeting. A number of replies to questions raised by the Commission during the meeting were formulated by the Government of Gibraltar and submitted to the Commission on 28 November 2000, before they were formally transmitted to it on 8 January 2001 by the United Kingdom. The contested decisions 24 By decisions SG(2001) D/289755 and SG(2001) D/289757 of 11 July 2001, notified to the United Kingdom by letters of that same date, the Commission decided to initiate a formal investigation procedure in respect of the exempt companies and the qualifying companies legislation. 25 In the second part of the account of the facts in decision SG(2001) D/289755, after summarising the main conditions which must be met in order to achieve the exempt companies status (point 8), the Commission states (point 9): On the basis of the information transmitted by the United Kingdom authorities, it results that the legislation on exempt companies which was introduced after the accession of the United Kingdom to the European Union appears to contain at least two changes which can be considered as notifiable events under State aid rules .... 26 The amendments mentioned are described at points 12 to 14. First, the Commission takes the view that the 1978 amendment freed exempt companies from their liability to tax by introducing an exemption from stamp duty on the issue of life assurance policies, on annuities payable by them and on any dealings relating to such policies or annuities. Secondly, the Commission considers that the 1983 amendment extended the tax scheme in issue to a new category of undertakings which did not meet the requisite conditions to be eligible to become exempt companies according to the original 1967 version of the exempt companies Ordinance (namely, branches of overseas companies registered under Part IX of the Gibraltar Companies Ordinance). Those undertakings, where they do become exempt companies, only pay tax at a flat rate of GBP 300 per annum. The Commission concludes (point 16) that, in view of the substant[ive] modifications, relating both to the amount of the advantage granted and to the number of potential beneficiaries, the exempt companies regime cannot be regarded as an existing but [as] an illegal aid. 27 After summarising in the third part of the account of the facts (points 19 to 23) the comments submitted by the United Kingdom authorities and the Government of Gibraltar during its preliminary examination, the Commission states, in the fourth part (points 24 to 39) that none of those comments dispels its doubts regarding the nature of existing aid of the legislation in issue (in particular at points 34 and 35). Next, it analyses the compatibility of the aid in the fifth part (points 40 to 53) and concludes (point 48) that it does not appear to fall within the scope of the exceptions laid down in Article 87(3) EC. In the light of the foregoing considerations (point 49), the Commission expresses a desire to gather the observations of the interested parties on the existence of possible obstacles to the recovery of the aid, in the event that [it] should be qualified as being illegal and incompatible with the common market. The Commission reminds the United Kingdom (point 51) that the procedure provided for in Article 88(3) EC has suspensory effect and draws its attention to the fact that Article 14 of Regulation No 659/1999 provides that unlawful aid may be recovered from the recipient. 28 In the first part (points 1 and 2) of the account of the facts of the other decision, SG(2001) D/289757, the Commission states (at point 1) that the qualifying companies legislation does not seem to fall within the definition of existing aid set out in Article 1 of Regulation No 659/1999, and that it has to be considered at this stage as non-notified aid. The second part (points 3 to 9) and the third part (points 10 to 17) contain a description and an assessment of the legislation. 29 Compatibility of the legislation is examined in the fourth part (points 17 to 31). After finding that it appears to constitute aid within the meaning of Article 87(1) EC (point 17), the Commission concludes (points 24 and 25) that it could, at this stage, be considered as an operating aid, which does not appear to qualify for any of the exceptions provided for in Article 87(3) EC. It then requests, as in the first decision, the comments of the interested parties on the existence of possible obstacles to the recovery of the aid, in the event that [it] should be qualified as being illegal and incompatible with the common market. The United Kingdom is warned (point 29) of the suspensory effect of the procedure provided for in Article 88(3) EC and its attention is drawn to the fact that Article 14 of Regulation No 659/1999 provides that illegal aid may be recovered from the recipient. Procedure 30 By application lodged at the Court Registry on 20 August 2001, registered as number T-195/01, the Government of Gibraltar (the applicant) brought an action under the fourth paragraph of Article 230 EC for the annulment of decision SG(2001) D/289755 (hereinafter contested decision I) initiating a formal investigation procedure in respect of the exempt companies legislation. 31 By separate document lodged at the Court Registry on the same date, the applicant brought an application under Articles 242 EC and 243 EC, registered under number T-195/01 R, for the suspension of operation of contested decision I and for the adoption of interim measures ordering the Commission to refrain from making public the initiation of the abovementioned procedure. 32 In view of the voluminous nature of the arguments set out in the application and the need to give a decision rapidly in a procedure for interim measures, the applicant was asked to submit a new version of that application which should not exceed 30 pages. The abridged version was lodged at the Registry of the Court of First Instance on 24 August 2001. 33 That abridged version of the application for interim measures was served on the Commission on 27 August 2001. 34 By application lodged at the Court's Registry on 7 September 2001, registered as number T-207/01, the applicant brought an action under the fourth paragraph of Article 230 EC for the annulment of decision SG(2001) D/289757 (hereinafter contested decision II) initiating a formal investigation procedure in respect of the qualifying companies legislation. 35 By separate document lodged at the Court's Registry on the same date, the applicant brought an application under Articles 242 EC and 243 EC, registered under number T-207/01 R, for the suspension of operation of contested decision II and for the adoption of interim measures ordering the Commission to refrain from making public the initiation of the abovementioned procedure. 36 By letter of 7 September 2001, the applicant requested that the cases be joined both as to the main proceedings and for the purposes of the applications for interim measures. It also sought permission for an oral hearing before the President of the Court of First Instance and sought permission that an expert witness, Professor Fletcher, whose written statement had been included with the application for interim measures in Case T-207/01 R, be allowed to testify at the hearing. 37 The Commission submitted its written observations on the two applications for interim measures on 10 and 27 September 2001 respectively. 38 By letter of 27 September 2001, the Commission informed the Court that it had no objection to the joinder of the two cases for the purposes of the main and of the interim measures procedures, but objected, as a matter of principle, to Professor Fletcher testifying in Case T-195/01 R. 39 In view of that objection, a separate hearing before the President of the Court of First Instance was set for 12 October 2001 in respect of the two applications for interim measures. The parties were requested by letter of 1 October 2001 to submit their comments, at the hearing, in particular on the possible significance of the judgment which was to be given by the Court of Justice on 9 October 2001 in Case C-400/99 Italy v Commission, a copy of which would be served on them immediately after its delivery. 40 By letter of 28 September 2001 to the Permanent Representative of the United Kingdom, the Registrar of the Court requested, pursuant to the second subparagraph of Article 21 of the EC Statute of the Court of Justice, applicable to proceedings before the Court of First Instance by virtue of the first subparagraph of Article 46 of the same Statute, to provide further information by way of answering three questions. 41 The United Kingdom Government replied to those questions by letter of 11 October 2001 (hereinafter the response of the United Kingdom). According to that response, the applicant and the Legislature of Gibraltar have jurisdiction to propose and enact, respectively, legislation in respect of company taxation matters, which are matters falling within defined domestic matters within the meaning of Section 55 of the Gibraltar Constitution Order 1969. Only those matters not falling within that category remain the exclusive responsibility of the Governor of Gibraltar. The ministerial Despatch of 23 May 1969 provides that the Governor may intervene, on behalf of the Government of the United Kingdom, if such intervention proves necessary to secure compliance, in particular with international obligations, including those arising from Community law, by the United Kingdom. As regards the capacity to bring proceedings in respect of company taxation, legal proceedings in the name of the applicant may be initiated on the instructions of the Chief Minister, the applicant having the power to bring such actions notwithstanding the division of internal competence in that field between it and the Legislature of Gibraltar. 42 At the hearing, the Commission having withdrawn its objection to using Professor Fletcher's evidence in Case T-195/01 R, the President of the Court of First Instance made an order for joinder of the two applications for interim measures and the parties presented oral argument and gave their replies to the questions put by the Court. 43 The Finance Centre Director of the Department of Trade, Industry and Telecommunications of the Government of Gibraltar and the Chief Secretary of that Government were heard, at the applicant's request, by the President of the Court of First Instance. Professor Fletcher was not able to attend the hearing for personal reasons. 44 In its deliberations of 12 November 2001, the Second Chamber of the Court of First Instance, to which the case in the main proceedings had been assigned, decided, on the basis of Article 76a of the Rules of Procedure of the Court of First Instance (hereinafter the Rules of Procedure), as amended on 6 December 2000 (OJ 2000 L 322, p. 4), to grant the application, lodged on 18 October 2001 by the Commission, for the procedure to be expedited. 45 By order of the President of the Second Chamber of the Court of First Instance of 14 November 2001, the two actions in the main proceedings were joined for the purposes of the remainder of the written procedure, the oral procedure and the judgment, pursuant to Article 50 of the Rules of Procedure. Law 46 Under Articles 242 EC and 243 EC, read together with Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/Euratom, EEC, ECSC of 8 June 1993 (OJ 1993 L 144, p. 21), the Court of First Instance may, if it considers that the circumstances so require, order suspension of operation of the contested measure or prescribe the necessary interim measures. 47 Under the first subparagraph of Article 104(1) of the Rules of Procedure, an application to suspend the operation of any measure is admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. That rule is no mere formality; rather, it means that the main action, on which the application for interim relief depends, must be admissible. To rule, at the stage of the proceedings for interim relief, on the admissibility of the main action, when its admissibility is not, prima facie, wholly excluded, would be tantamount to prejudging the Court of First Instance's decision in respect of that action (order of the President of the Court of First Instance of 17 January 2001 in Case T-342/00 R Petrolessence and SG2R v Commission [2001] ECR II-67, paragraph 17). 48 Article 104(2) of the Rules of Procedure provides that applications for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case (fumus boni juris) for the interim measures applied for. These conditions are cumulative, so that an application to suspend the operation of any measure must be dismissed if one of them is lacking (orders of the President of the Court of Justice in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30, and of the President of the Court of First Instance in Case T-73/98 R Prayon-Rupel v Commission [1998] ECR II-2769, paragraph 25, and Case T-237/99 R BP Nederland and Others v Commission [2000] ECR II-3849, paragraph 34). Where appropriate, the judge hearing the application must also balance the interests involved (order of the President of the Court of Justice of 23 February 2001 in Case C-445/00 R Austria v Commission [2001] ECR I-1461, paragraph 73). Admissibility Arguments of the parties 49 The applicant claims that, according to the Gibraltar Constitution, it has responsibility for all defined domestic matters, including, in particular, company taxation. So far as concerns whether the Chief Minister may give instructions for the initiation of legal proceedings in the name of the applicant, it stated at the hearing that the response of the United Kingdom in that regard removed, in the context of the present proceedings, any doubts that might remain. 50 Next, according to the applicant, it is clear from the grounds of the contested decisions that they have legal effects. In contested decision I, the Commission finds that the exempt companies legislation constitutes new, non-notified aid and that it is therefore unlawful. Accordingly, the obligation to suspend the operation of the measure concerned, provided for in Article 88(3) EC, applies and enables the Commission to demand the recovery of the aid. Similarly, contested decision II, despite the hesitant language used by the Commission when characterising the qualifying companies legislation as non-notified aid, is not provisional in nature but rather produces legal effects similar to those resulting from contested decision I. 51 The Commission, in its written observations, expressed doubts as to whether the applicant had locus standi and whether the Chief Minister could bring the proceedings in the main actions. However, at the hearing and in view of the response of the United Kingdom, it accepted, at least for the purposes of the present application for interim measures, that such doubts did not suffice to declare the main actions manifestly inadmissible. 52 The Commission disputes the applicant's assertion in its applications for interim measures that contested decisions I and II have immediate legal effects. Unlike the decisions in issue in Case C-312/90 Spain v Commission [1992] ECR I-4117 (hereinafter Cenemesa) and Case C-47/91 Italy v Commission [1992] ECR I-4145, (hereinafter Italgrani), the contested decisions do not draw a final conclusion as to whether the alleged aid is new or existing aid and whether it is compatible with the common market. It follows, according to the Commission, that those decisions do not automatically entail that the obligation to suspend laid down in Article 88(3) EC must be implemented. In points 51 and 29 of contested decisions I and II respectively, the Commission merely reminds the United Kingdom of the effect of that provision in the event that it should be applicable. According to the Commission, the question as to whether the legislation at issue, should it constitute aid, must be characterised as new or existing aid therefore remains open. Moreover, no decision pursuant to Article 11 of Regulation No 659/1999 ordering the United Kingdom to suspend the legislation in issue has been taken. 53 At the hearing, the Commission, placing reliance on Case C-400/99 Italy v Commission [2001] ECR I-0000, argued that the contested decision in that case (Decision SG(99) D/6463 of 6 August 1999 (OJ 1999 C 306, p. 2) may be distinguished from the contested decisions in that, in that decision, it had invited Italy to suspend the alleged aid. In determining the matter of admissibility, it is the effects entailed by a decision to initiate the formal investigation procedure, rather than the label temporarily attached to the measure concerned, which are important. Such a decision does not systematically produce legal effects. None the less, in the light of the judgment in Case C-400/99, cited above, the Commission, without formally waiving its plea of inadmissibility, accepted that it would not be realistic, in the present proceedings, to argue that the main actions are manifestly inadmissible. 54 Moreover, the Commission, in its written observations on urgency, doubts whether a sub-national entity such as the applicant is entitled to defend before the Community judicature general interests of an economic and social nature, such as those invoked in the present case (Case T-238/97 Comunidad Autónoma de Cantabria v Council [1998] ECR II-2271, paragraph 50). Findings of the President 55 So far as concerns the locus standi of the applicant, in light of the response of the United Kingdom and of the position taken at the hearing by the Commission, the main actions cannot be declared manifestly inadmissible. Moreover, the interest of the applicant to invoke the argument that the general interests of the Gibraltarian economy could be presumed to be adversely affected does not appear, in the light of the broad extent of its internal powers, to be wholly unfounded in law. 56 With regard to the question as to whether or not the contested decisions constitute actionable measures, given that it concerns an absolute bar to proceedings and in view of the uncertainty of the Commission as to the proper interpretation of the judgment in Italy v Commission, cited above, it is appropriate to establish whether there exist certain factors which would justify the prima facie conclusion that the main actions may be admissible. 57 In Cenemesa, the Court, after observing that the Commission had decided to treat aid as new aid which the Spanish Government regarded as existing aid (paragraph 19), held that the contested decision in that case, clearly involv[ing] a choice of the relevant category of aid and the rules of procedure relating to it, produced legal effects (paragraph 20). In the same way, in Italgrani the Court pointed out that the decision to initiate the formal investigation procedure in issue prohibited the Government from paying the proposed aid, and that such prohibition was the result of a deliberate decision by the Commission (paragraphs 20 and 21). In light of the choice [made] by the Commission, it concluded that the contested decision ha[d] legal effects. 58 It is true that, in Italy v Commission, cited above, the pleas in law put forward by Italy in support of the admissibility of its action relied on the premiss that the contested decision involved suspension of the financial support in issue. However, the Court of Justice there considers the question whether, despite the absence of any such injunction, the contested decision does not imply that the Italian authorities must suspend the implementation of the measures referred to (paragraph 55). It states quite clearly that, [r]egarding aid in the course of implementation the payment of which is continuing and which the Member State regards as existing aid, the contrary classification as new aid, even if provisional, adopted by the Commission in its decision to initiate the procedure under Article 88(2) EC in relation to that aid, has independent legal effects (paragraph 57). According to the Court of Justice, such a decision implies that the Commission does not intend to examine the aid in the context of the permanent examination of existing aid schemes provided for by Article 88(1) EC and Articles 17 to 19 of [Regulation No 659/1999] (paragraph 58), and necessarily alters the legal position of the measure under consideration and that of the undertakings which are its beneficiaries, particularly as regards the pursuit of its implementation (paragraph 59). In a manner very pertinent to the assessment of the present applications for interim measures, the Court of Justice goes on to state: Whereas, until the adoption of such a decision, the Member State, the beneficiary undertakings and other economic operators may think that the measure is being lawfully carried out as an existing aid, after its adoption there is at the very least a significant element of doubt as to the legality of that measure which, without prejudice to the possibility of seeking interim relief from the court with the power to grant it, must lead the Member State to suspend payment, since the initiation of the procedure under Article 88(2) EC excludes the possibility of an immediate decision holding the measure compatible with the common market which would enable it to be lawfully pursued. 59 It appears, at least at first sight, from that judgment that a decision adopted by the Commission to initiate a formal investigation procedure in respect of a measure in the course of implementation produces specific legal effects and may, therefore, be challenged immediately before the Community judicature, without having to await the adoption of the final decision concluding that procedure. Moreover, the possibility for any interested party, who initiates such an action, to apply for interim relief is expressly contemplated by the Court of Justice. It follows that such a decision may, in principle, be the subject of interim measures. 60 Accordingly, there exist certain factors which justify the prima facie conclusion that the main actions may be admissible. Prima facie case 61 In order to demonstrate that there is a prima facie case in the present proceedings, the applicant relies essentially on the same pleas in law as those put forward in the main proceedings. Those pleas in law allege, first, that the contested decisions are incompatible with Article 88 EC and Article 1(b) of Regulation No 659/1999 and, secondly, breach of the rights of defence of the applicant and of the United Kingdom, breach of the principles of proportionality, legal certainty and legitimate expectations and breach of the obligation to state reasons. 62 The Commission, while firmly disputing that the pleas in law advanced are well founded, does not formally deny that they have, at least for the purpose of assessing the present applications for interim relief, some foundation. In observing that the arguments put forward by the applicant in support of those pleas in law are virtually all predicated on the assumption that the contested decisions make a final determination of the issue whether the alleged aid in issue is new or existing aid, the Commission states, nevertheless, that it has not taken any definitive position as to the classification of the legislation at issue. The arguments put forward by the applicant do no more, according to the Commission, than demonstrate that the main action is premature. 63 It is appropriate to examine the core plea alleging infringement by the Commission, in the contested decisions, of Article 88 EC and Article 1(b) of Regulation No 659/1999. Arguments of the parties 64 In support of its arguments, the applicant claims, with regard to the exempt companies legislation, that the Commission has committed a manifest error of assessment in finding that the 1978 and the 1983 amendments constituted substant[ive] modifications to a non-notified aid scheme. In thus classifying them and, as a consequence, the entire exempt companies legislation, as a new aid scheme, ignoring the Community law context in which those measures were adopted at the time and without taking into account their economic substance, the Commission has given a strained and artificial meaning to the concept of new aid. Since the legislation in issue was introduced in 1967, it clearly constituted, at the time of the accession of the United Kingdom in 1973, existing aid and only a substant[ive] modification could have changed the status of the aid to a new aid scheme (judgment in Case C-44/93 Namur-les Assurances du Crédit [1994] ECR I-3829 and the Opinion of Advocate General Lenz in that case, p. I-3831, as well as that of Advocate General Fennelly in Joined Cases C-15/98 and C-105/99 Italy and Sardegna Lines v Commission [2000] ECR I-8855, I-8859). The mere fact of an existing aid scheme having been the subject of legislative amendment should not automatically lead to a finding, such as that made by the Commission in the present case, that a substantive modification has occurred (Opinion of Advocate General Fennelly, cited above, point 62). The 1978 amendment merely gave legislative recognition to what was an existing common practice and did not, therefore, have any specific impact. The 1983 amendment, although it included those companies referred to in Part IX of the Companies Ordinance among those eligible, in principle, for exempt company status, amounted to no more than an administrative improvement, since those companies must none the less meet the same conditions in order actually to be granted the aforementioned status. The applicant points out that, on 31 July 2001, only 24 of the 260 companies covered by Part IX of that Ordinance enjoyed that status. 65 As regards the qualifying companies legislation, the applicant takes the view that the Commission erred in law in not classifying it as an existing aid scheme. According to the applicant, it dates from 1983 and notably from a period when it was far from clear either to the Commission, the Member States or, above all, to the economic operators whether, and to what extent, State aid rules were to be systematically applied to national legislation on company taxation. The legislation in issue thus predates by 10 years the liberalisation of capital movements and by 15 years the clarification of the concept of State aid made by the Commission in its notice, published on 10 December 1998, on the application of State aid rules to measures relating to business taxation (OJ 1998 C 384, p. 3, hereinafter the 1998 notice). 66 The qualifying companies legislation was notified to the Primarolo Group by the United Kingdom even before the publication of the 1998 notice. It constituted the Commission's response to the ECOouncil's call in paragraph J of the Code of Conduct, inviting the Commission to undertake to publish guidelines on the application of the State aid rules to measures relating to direct business taxation. According to the applicant, the 1998 notice contained the first comprehensive, albeit not exhaustive, definition of fiscal State aid and can be regarded as more a policy statement as to future Commission action in this area than a clarification of the applicable legislation. Essentially, it constitutes a development of the provisions in force rather than a reflection of existing law. The dearth of precedents, in the form of Commission or Community judicature decisions, cited in the 1998 notice, confirms that view. 67 Furthermore, the fact that Community State aid legislation can evolve through such decisions is recognised in Article 1(b)(v) of Regulation No 659/1999. The qualifying companies legislation constitutes a measure, as provided for by that provision, which became aid only subsequently. The Commission itself actually acknowledged that fact when it declared, in the third recital of the preamble to the 1998 notice that, [f]ollowing the completion of the single market and the liberalisation of capital movements, it has also become clear that there is a need to examine the particular effects of aid granted in the form of tax measures .... By failing to regard the qualifying companies legislation as existing aid, the Commission is applying, with hindsight, the relatively refined State aids criteria of 2001 to the legal and economic situation prevailing in 1983. The applicant makes reference, in that regard, to the Irish company tax scheme which, according to it, was initially not classified as aid, although the Commission subsequently changed its view to reflect the gradual tightening of Community disciplines regarding such tax incentive schemes (the Commission's decisions regarding the international financial services centre and the Shannon customs-free airport zone (OJ 1998 C 395, pp. 14 and 19)). 68 The Commission argues, with regard to the exempt companies legislation, that, despite the ambiguous language used in points 12 and 13 of contested decision I, what must be ascertained is whether the 1978 and the 1983 amendments are substantive, inasmuch as they concern the substance of the aid, rather than merely considerable (Opinion of Advocate General Fennelly in Italy and Sardegna Lines v Commission, cited above, points 62 and 63). The Commission is thus required not to carry out an economic analysis of the effect but to examine the legislative provisions in question. An examination must be carried out as part of a formal investigation procedure where, as contested decision I shows, there are prima facie grounds for the conclusion that the amendments referred to made substantive amendments to the scheme in issue. 69 So far as concerns the qualifying companies legislation, the mere fact that it has been in force for many years is not, in the Commission's submission, relevant. A measure which was new aid when it was introduced does not lose that character simply by passage of time (Case C-295/97 Piaggio [1999] ECR I-3735). The applicant's argument that the extension to company taxation of Community State aid rules is something of a novelty is untenable. According to the Commission, it has been clear, since 1974, that the concept of State aid applies to advantages granted in the field of taxation (Case 173/73 Italy v Commission [1974] ECR 709). Furthermore, the Commission points out that the legislation in issue was enacted in 1983, the same year in which it brought the first infringement proceedings against a Member State concerning company taxation, namely in Case 270/83 Commission v France [1986] ECR 273. The question as to whether those undertakings which benefited from the scheme in issue were open to cross-border competition cannot be confined to the issue of the liberalisation of capital movements. The applicant's argument would be of some weight only in assessing possible legitimate expectations that there might be no recovery of the aid, assuming that it were eventually found to be new and incompatible aid. Finally, the mere fact that the qualifying companies must essentially do business outwith Gibraltar demonstrates the cross-border nature of such business. Findings of the President 70 It should be noted at the outset that it is settled case-law that, under Article 88(3) EC, the Commission is under an obligation to initiate a formal investigation procedure where, after the preliminary examination, it encounters serious difficulties in determining the compatibility with the common market of measures which have been notified, or which have not been notified but of which it has become aware (Case C-198/91 Cook v Commission [1993] ECR I-2487, paragraph 29, and Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 39; Case T-49/93 SIDE v Commission [1995] ECR II-2501, paragraph 58, and Case T-73/98 Prayon-Rupel v Commission [2001] ECR II-867, paragraph 42). That rule, laid down by the case-law, is reproduced in Article 4(4) of Regulation No 659/1999, according to which, where the Commission, after a preliminary examination, finds that doubts are raised as to the compatibility with the common market of a notified measure, it is to initiate the formal investigation procedure. 71 It is for the Commission to determine, on the basis of the factual and legal circumstances of each case, whether the difficulties involved in assessing the compatibility of the aid warrant the initiation of that procedure (Cook v Commission, paragraph 30, and Case T-73/98 Prayon-Rupel v Commission, paragraph 43, both cited above). 72 Next, the answer to the question whether alleged aid is new and its introduction therefore requires the preliminary examination procedure under Article 88(3) EC to be put in motion cannot depend on a subjective assessment by the Commission (Piaggio, cited above, paragraph 47). 73 It is not disputed in the present cases that, so far as concerns the exempt companies legislation, the 1978 and the 1983 amendments, to which the Commission refers in contested decision I, were not notified to the Commission in compliance with Article 88(3) EC. As regards the qualifying companies legislation, it is clear, despite the notification of the measures in issue to the Primarolo Group, that that legislation was not notified, within the meaning of the Community State aid rules, to the Commission either. 74 It follows that the exempt companies legislation can be regarded as constituting an existing aid scheme only if the 1978 and the 1983 amendments, whose significance is disputed, do not constitute alterations within the meaning of Article 88(3) EC and of Article 1(c) of Regulation No 659/1999. The qualifying companies legislation, which dates from 1983, cannot constitute an existing aid unless, pursuant to Article 1(b)(v) of Regulation 659/1999, it did not constitute aid at that time but it became aid subsequently as a result of the development of the common market. However, it is precisely the legality of the Commission's refusal, as expressed in the contested decisions, to rule out, at least the possibility, that that legislation might constitute new aid which is challenged in the main actions by the applicant. 75 State aid is a legal concept which must be interpreted on the basis of objective factors. Accordingly, the classification of State measures by the Commission as new or existing aid must, in principle, having regard both to the specific features of the case and to the technical or complex nature of its assessments, be subject to a comprehensive review by the Community judicature (Case T-67/94 Ladbroke Racing v Commission [1998] ECR II-1, paragraph 52, confirmed upon appeal by Case C-83/98 P France v Ladbroke Racing and Commission [2000] ECR I-3271, paragraph 25). However, since, at the end of its preliminary examination, the Commission is under an obligation to initiate a formal investigation procedure where it cannot rule out that the State measures in issue might constitute aid incompatible with the common market, its power to find aid to be compatible with the common market upon the conclusion of the preliminary procedure is restricted to aid measures that raise no serious difficulties (T-73/98 Prayon-Rupel, cited above, paragraph 44). 76 Although it appears appropriate to interpret the judgment of 9 October 2001 in Italy v Commission, cited above, as confirming, at least in principle, that a decision to initiate a formal investigation procedure in respect of a State measure which has already been implemented, where a Member State wishes to continue to apply it pending a definitive decision by the Commission, may always be simultaneously challenged before the Community judicature and be the subject of an application for interim relief, despite the absence of any injunction to suspend the measure at issue in the contested decision, it is nevertheless true that the question of the nature of the review which the Community judicature must undertake in the context of such an application has not yet been decided in the case-law. 77 It must be stated, at first appearance, that such judicial review must be precisely circumscribed in order to ensure that the Commission is not prevented from carrying out the preventive control provided for in the Treaty (see, to that effect, Cenemesa, paragraph 16, and Italgrani, paragraph 24). Such circumscription would seem even more appropriate since the Commission has no discretion as regards whether to initiate a formal investigation procedure when it encounters serious difficulties in classifying a State measure and determining its compatibility with the common market (see the case-law cited in paragraph 70 above). 78 Accordingly, the case-law acknowledges that, although the Commission's powers are circumscribed as far as initiating the formal procedure is concerned, it nevertheless enjoys a certain margin of discretion in identifying and evaluating the circumstances of the case in order to determine whether or not they present serious difficulties (T-73/98 Prayon-Rupel v Commission, cited above, paragraph 45). Even though the notion of serious difficulties is an objective one, whether or not such difficulties exist requires investigation of both the circumstances under which the contested measure was adopted and its content (T-73/98 Prayon-Rupel v Commission, cited above, paragraph 47). Thus, where the Commission confirms that there are difficulties, it cannot refuse to initiate a formal investigation procedure by concluding that such difficulties are not serious (Prayon-Rupel v Commission, cited above, paragraph 48). In the contested decisions, the Commission concluded that, notwithstanding the comments submitted by the United Kingdom and the applicant during the preliminary examination, it still encountered serious difficulties regarding, in particular, the classification of the legislation in issue. Those conclusions are based both on an assessment of the objective principles governing the concepts of Community law on new aid and existing aid and on the information available to the Commission when the contested decisions were adopted concerning the facts and the relevant provisions of national law, namely those in force when the State measure at issue and, where appropriate, the relevant alterations, were adopted. It follows that a party who contests, as the applicant does here, a decision by the Commission to initiate a formal investigation procedure in respect of alleged new aid, instead of treating the measure under investigation as existing aid, must be able to prove that the institution could not arrive, after such a preliminary assessment, at the conclusion that there were serious difficulties and that it was therefore under an obligation to initiate such a procedure. 79 In view of the broad discretion which the Commission must enjoy in so far as concerns the provisional assessment of the facts and elements of relevant national law, it appears, prima facie, that the applicant must prove that a manifest error of assessment has occurred in order ultimately to obtain the annulment of a decision finding the existence of serious doubts as to whether a State measure constitutes new, rather than existing, aid. 80 At the hearing, the applicant clarified that it was its contention that a manifest error of legal classification had been committed, in the present case, by the Commission. In that connection, the general nature should be noted, in the case-law as it stands, of the criteria which must serve to assess whether the changes introduced into an existing aid scheme constitute alterations within the meaning of Article 88(3) EC. Moreover, as Advocate General Fennelly points out in his Opinion in Italy and Sardegna Lines v Commission, what has to be considered is the substance itself of the changes in issue. In those circumstances, it is possible, at least prima facie, that the Commission, by restricting itself to a rather literal examination of the scope of the changes introduced in 1978 and 1983, so far as concerns the exempt companies legislation, committed a manifest error. In that regard, the Commission acknowledges that points 12 and 13 of contested decision I are ambiguously worded, and that such ambiguity does not make it easy to understand the reasoning underpinning the reference, at point 16 of that decision, to alleged substant[ive] modifications. A judge hearing an application for interim measures cannot therefore rule out the possibility that the Commission, in arriving at such an assessment, only made a literal comparison of the texts which preceded and followed the amendments at issue and, thus, committed a manifest error. 81 So far as concerns the qualifying companies legislation, it is, at least prima facie, conceivable that it did not constitute aid at the time of its introduction in 1983. It is possible that the absence of a genuine liberalisation of capital movements at that time prevented that legislation from producing anything other than insignificant effects on trade or from having an unfavourable influence on cross-border competition. The applicant's argument that, first, the application of Community State aid rules to State measures on company taxation is relatively new and that, secondly, that novelty is confirmed both by the circumstances giving rise to the adoption of the Code of Conduct and by the wording of the 1988 notice, is not wholly unfounded. Furthermore, the applicant's arguments relating to the development of the Community law provisions applicable to such alleged State aid, as well as the proper construction of Article 1(b)(v) of Regulation No 659/1999, are, prima facie, serious in nature (see, to that effect, Case T-288/97 Regione Autonoma Friuli-Venezia Giulia v Commission [2001] ECR II-1169, paragraphs 89 to 90). 82 In view of the foregoing arguments, it cannot be considered that the pleas of fact and law relied upon by the applicant are, at least prima facie, wholly unjustified. Urgency and the balancing of interests Arguments of the parties 83 The applicant claims that, although it is for the party applying for interim measures to demonstrate that it would suffer serious and irreparable damage pending the Court's judgment in the main action if such measures were not adopted, it is not required to establish with absolute certainty that damage would occur: it is sufficient that the damage is foreseeable with a sufficient degree of probability. In the present case, the entire viability of Gibraltar's economy would be put at risk of being seriously harmed if the interim measures applied for were not granted. The applicant refers to the order of the Court of Justice in Case C-280/93 R Germany v Council [1993] ECR I-3667, paragraph 27, and maintains that its position is analogous to that of a Member State seeking to protect its economy. In an extremely small-scale economy like Gibraltar's, the contested decisions represent an infinitely greater danger then they would if they applied to the economy of a State. 84 The source of the damage is twofold. First, the contested decisions produce immediate effects, since they render the legislation on exempt companies and on qualifying companies illegal and therefore require that the legislation be suspended; there is also the threat of recovery of the aid and of actions in the Gibraltar courts. Second, publication of the contested decisions, informing third parties that the formal investigation procedure has been initiated, would have the consequence of disrupting, if not ruining, Gibraltar's reputation as a reliable finance centre in the financial services market. 85 The applicant observes that Gibraltar, with a population of approximately 30 000 persons and an area of 5.82 square kilometres, is the smallest self-governing territory to which Community law applies. Gibraltar suffers from poor transport links and a lack of natural resources and has no possibility of developing primary or heavy industry. Its economy has traditionally been based on the British military presence, but since the early 1980s the military contribution to Gibraltar's gross domestic product has fallen from 60% to 6%. However, Gibraltar has survived that difficult transition, largely as a result of the successful development of its financial services sector. That sector, which is based on exempt companies and qualifying companies, is currently responsible for approximately 30% of Gibraltar's gross domestic product, compared with only 7% in 1988, and provides direct employment for approximately 2 000 persons and indirect employment for approximately 1 000 persons. 86 According to the study by Professor Fletcher, cited above, the particular importance of exempt companies for Gibraltar's economy lies in the services provided to those companies, which generally do not have a physical presence on the territory, by various undertakings operating in that field. Qualifying companies are generally companies which, unlike exempt companies, have a bricks and mortar presence in Gibraltar. They operate in various sectors, notably in the banking and financial sectors, ship repairs, motor vehicles, telecommunications and gaming and betting; they are highly mobile and have approximately 1 450 employees (including 1 000 in financial activities). Thus, according to Professor Fletcher, suspension of the legislation on exempt companies and on qualifying companies would have the effect of threatening approximately 4 000 persons out of a total workforce in Gibraltar of approximately 13 000 persons, or more than 30% of the total. In addition to that direct loss of jobs, suspension of the legislation would result in the destabilisation of the sectors providing services to exempt companies, such as banks, investment houses, insurance companies and the company manager sector, and also of legal firms and accountancy practices. It would also destabilise non-financial services which depend on qualifying companies, such as hotels, restaurants, retail outlets, courier services and also telecommunications companies. Both commercial and residential property prices would collapse and there would be a significant fall in the applicant's revenue, affecting its capacity to provide public services. 87 There is a real danger that the gross domestic product generated by Gibraltar's financial sector would fall to the 1988 figure. The interim measures sought are therefore clearly vital to its economic, social and political stability, while, on the other hand, their impact on competition and trade within the common market would be negligible. 88 The damage is not hypothetical. In an era of electronic commerce and e-money, investors can transfer their activities from one location to another in a very short time. In answer to the questions put by the President of the Court at the hearing, the applicant stated that, although financial circles in Gibraltar were almost immediately aware that the contested decisions had been adopted, the shockwave thus produced was confined, because the detailed content of the decisions had not been made public. 89 As regards the balancing of interests, the applicant claims that the judge hearing the application for interim measures must compare, on the one hand, the advantage in allowing the contested decisions to be implemented, which would lead to the immediate suspension of the exempt companies legislation, in force for between 18 and 23 years, and, in the case of the qualifying companies legislation, to the suspension of a system of taxation which has been in force for 18 years, with, on the other hand, what the applicant would gain should the decisions be suspended pending the judgment of the Court of First Instance in the main proceedings. In that regard, whereas suspension of the legislation on exempt companies and on qualifying companies would have disastrous consequences for Gibraltar's economy, it would be of no advantage to the Community. Consequently, an equitable balancing of the interests at stake requires that the Commission consider the legislation as existing aid. 90 The Commission contends that the arguments put forward by the applicant concerning the possible collapse of Gibraltar's economy following implementation of the contested decisions are largely speculative, whereas it is for the applicant to demonstrate in a satisfactory manner the reality of the alleged harm (order in Prayon-Rupel v Commission, cited above, paragraphs 22, 36 and 38). The applicant's arguments are also contradictory: if the legislation challenged in those decisions is indeed the only reason for the presence in Gibraltar of the undertakings concerned, it is hard to deny that it constitutes aid. In any event, the alleged damage would not be the consequence of the contested decisions, which do not contain a finding that the alleged aid is new aid or order its suspension. As regards the threat of recovery of the aid, the Commission claims that it took the highly unusual step of stating explicitly in both contested decisions (paragraphs 49 and 25 respectively) that, even supposing that the legislation concerned does constitute new aid and is therefore unlawful, the issue of recovery must be approached with caution, having regard to the possibility that the principle of legitimate expectations may be applicable. 91 As regards the alleged risk of actions in the Gibraltarian courts, the Commission points out that it is always open to a litigant to assert before national courts that a State measure constitutes unlawful aid, whatever the attitude of the Commission may be. The fact that the Commission's attitude is not binding on the national court emerges plainly from the judgment in Piaggio, cited above. The Commission further contends that, if the continued activity of the undertakings which benefit from the legislation in question is really dependent on the maintenance in operation of that legislation, proposals for the adoption of appropriate measures, in accordance with Article 88(1) EC, and, in the event of non-compliance therewith, the adoption of an order, would lead to the same unfavourable consequences as those the applicant fears. Such consequences might also follow from any measure reforming the legislation adopted in order to comply with the commitment given by the United Kingdom Government in the context of the Primarolo group to ensure that it is rolled back by no later than the end of 2005, and from the fact that the applicant, following the commitment given by the United Kingdom, itself gave a commit[ment] to undertake a reform of Gibraltar's tax system in its observations of 28 November 2000 (see paragraph 23 above). 92 As regards the harmful effects which, the applicant maintains, publication of the contested decisions would have for the reputation of Gibraltar's finance centre, the Commission claims that that assertion is inconsistent with the argument that there is no evidence that the presumed aid is new aid or existing aid. Furthermore, interested third parties, including investors, are already aware of the Commission's general direction, notably because the contested decisions formed the subject-matter of a press release on 11 July 2001. 93 As regards the balancing of interests, the Commission contends that, in the absence of a definitive classification of the aid as new aid in the contested decisions, the decisions have no actual legal effect and cannot therefore be compared with the consequences of the suspension sought by the applicant, which would prevent the Commission from investigating all the issues raised by the legislation in question. The applicant's argument means that it would have the Commission carry out that examination in secret, which would be contrary to the general principles of Community law. At the hearing, the Commission emphasised the unacceptable consequences that would follow if it were unable to carry out a full investigation into the legislation at issue and to hear all the interested parties. Findings of the President 94 It should be observed at the outset that the mere fact that the Court of First Instance decided, on 12 November 2001, on application by the Commission, to adjudicate on the substance of the action under an expedited procedure cannot influence either the assessment of urgency or, should it prove necessary, the balancing of the interests concerned by the judge hearing the application for interim measures. The relevant criteria of the existence of a particular urgency, which, under Article 76a(1) of the Rules of Procedure, is to be satisfied if the Court is to adjudicate under an expedited procedure, are only partly the same as those which, according to the case-law, govern the assessment of the condition of urgency that must be satisfied before the judge hearing an application for interim measures is able to adopt such measures. 95 It is common ground that the urgency of an application for interim measures must be assessed in relation to the necessity for an order granting relief in order to prevent serious and irreparable damage to the party requesting the interim measure (order of the President of the Court of Justice in Case C-213/91 R Abertal and Others v Commission [1991] ECR I-5109, paragraph 18; order in BP Nederland and Others v Commission, cited above, paragraph 48). 96 It is for the party who pleads serious and irreparable damage to prove its existence (order of the President of the Court of Justice of 12 October 2000 in Case C-278/00 R Greece v Commission [2000] ECR I-8787, paragraph 14). It does not have to be established with absolute certainty that the harm is imminent; it is sufficient that the harm in question, particularly where it depends on the occurrence of a number of factors, should be foreseeable with a sufficient degree of probability (order of the President of the Court of Justice of 19 July 1995 in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 38; orders in Prayon-Rupel v Commission, cited above, paragraph 38, and BP Nederland and Others, cited above, paragraph 49). 97 In the present case, since the applicant acknowledged at the hearing that no measurable damage had yet occurred in Gibraltar, the main damage relied on rests on the argument that the contested decisions find that the legislation on exempt companies and qualifying companies is illegal. The consequence of that illegality, resulting from classification of the legislation as new aid in the former case and as illegal aid in the latter case, is that the applicant is obliged to suspend the legislation immediately. 98 Without prejudice to the assessment of the Court on the substance of the action, it seems doubtful that such an interpretation can be accepted. Under Article 6(1) of Regulation No 659/1999, the Commission is to include in the decision to initiate the formal investigation procedure a preliminary assessment ... as to the aid character of the measure in question and to set out the doubts as to its compatibility with the common market. Although it is true, in the present case, that the wording of certain points of the contested decisions is clumsy, as the Commission agrees, it is clear on the face of it that the decisions, taken as a whole, contain no definitive classification of the legislation in question. The applicant is therefore under no obligation to suspend it. 99 As regards the risk of actions in the Gibraltarian courts, it should be pointed out that, whatever the preliminary classification of the measures made by the Commission in the decision to initiate a formal investigation procedure, it is always open to an interested party to bring proceedings before the national courts for a declaration that a State measure constitutes new aid implemented without being notified, contrary to the prohibition set out in the final sentence of Article 88(3) (judgments in Case C-354/90 FNCE [1991] ECR I-5505, paragraphs 11 and 12; Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraphs 39 and 40, and Case C-143/99 Adria-Wien Pipeline and Others, not yet published in ECR, paragraphs 26 and 27). Since the Commission and the national courts fulfil complementary and separate roles in the supervision of Member States' compliance with their obligations under, in particular, Article 88(3) EC (judgment in SFEI and Others, paragraph 41), a decision by the Commission finding, after a preliminary investigation, that the measure is not aid would not prevent the national court from arriving at the opposite conclusion and from being able, or being bound, as the case may be, to refer a question to the Court of Justice on the interpretation of Article 88(3) EC and Regulation No 659/1999 (judgment in Piaggio, cited above). 100 As regards the threat which publication of the contested decisions would allegedly represent for Gibraltar's reputation as a finance centre with appropriate and reliable legislation, it should first of all be pointed out that, as the Commission rightly submits, the applicant's argument concerning the reality of that threat is essentially linked with its interpretation of the contested decisions. As stated above (paragraph 98), the contested decisions do not oblige the applicant immediately to suspend the legislation on exempt companies and qualifying companies. Furthermore, the fact that the applicant may be uncertain as to whether it should itself propose such a suspension cannot in itself justify suspending implementation of the decisions. That uncertainty could have been avoided if the legislation in question had been notified to the Commission. 101 In so far as the applicant bases its arguments on the anticipated reaction of the financial circles concerned, the damage invoked remains, for the time being, entirely hypothetical in so far as it is based on the occurrence of future and uncertain events. Such damage cannot justify granting the interim measures requested (orders of the President of the Court of First Instance in Prayon-Rupel v Commission, cited above, paragraphs 22, 26 and 38, and in BP Nederland and Others v Commission, cited above, paragraphs 57 and 66; and in Case T-241/00 R Le Canne v Commission [2001] ECR II-37, paragraph 37). 102 The mere fact that the contested decisions are intended to initiate a formal investigation procedure, during which there will be a thorough investigation, involving the participation of all the interested parties, of the legislation concerned, and which may culminate in a final decision finding that the legislation is incompatible with Community law, is not necessarily of such a kind as to cause a veritable exodus of exempt companies or qualifying companies to other locations offering advantages the same as, or similar to, those of the legislation in question. It seems more probable, at least at first sight, that the directors of the companies concerned, and in particular the directors of qualified companies with a physical presence in Gibraltar, will await the adoption of the final decisions by the Commission. That seems all the more probable because, as the applicant confirmed at the hearing, neither examination of the legislation within the Primarolo group nor the determination of a deadline, namely 2005, for its repeal has led to a large-scale transfer of activities. 103 As regards the standstill effect which, as the applicant stated in its oral pleadings, has already applied to new investments in Gibraltar since the adoption of the contested decisions, there is no direct link of causality between that alleged absence of new investments and the contested decisions. It is public knowledge, first, that all the legislation identified by the Primarolo group must be rolled back no later then 2005 and, second, that, as the Commission observed at the hearing, since the end of 2001 no new company has been able to take advantage of the legislation on exempt companies or qualifying companies. The combination of those two factors may also explain any slow-down in the formation of new companies in Gibraltar since the contested decisions were adopted. 104 Last, although it is possible that the official publication of the contested decision will precipitate the departure of a number of the companies concerned, it is equally possible, at least at first sight, that it will not. The fact that the Commission took the very unusual, if not unprecedented, step in the contested decisions (paragraphs 49 and 25 respectively) of inviting, inter alia, the applicant to submit its observations on whether, if the Commission should finally conclude that the legislation in question is illegal, it would be appropriate, in the light of the possible application of the principle of legitimate expectations, to proceed to recover the aid, might convince many companies not to leave Gibraltar. 105 It follows that any harm that might be caused by the implementation of the contested decisions is, at least at present, still hypothetical, depending as it does on the presumed reaction of certain operators to the initiation of the investigations announced in the decisions. 106 In any event, in the present case the balance of interests inclines towards allowing the Commission to initiate the formal investigation procedures envisaged. 107 It follows from the applicant's observations that it is seeking in reality to prevent the Commission from considering, in the context of such an examination, whether the legislation in question constitutes new aid. The applicant maintains that, having already studied that question in the context of a preliminary investigation lasting more than two years, the Commission must have reached the conclusion that at the very most it constitutes existing aid. The Commission's only remaining option is therefore to follow the procedure in relation to existing aid, pursuant to Article 88(1) EC and Articles 17 to 19 of Regulation No 659/1999. 108 As a matter of principle, such an obstacle to the performance by the Commission of the task entrusted to it by Article 88(3) EC and by Article 4(4) of Regulation No 659/1999, and described by the Court of Justice as essential for protection the proper functioning of the common market (judgment in Adria-Wien Pipeline and Others, cited above, paragraph 25), cannot be accepted. It follows from Article 13(2) of Regulation No 659/1999 that where measures are not notified the Commission is not to be bound by the time-limit laid down for completion of its preliminary examination. Furthermore, under Article 88(3) EC, as interpreted by the Court of Justice, it cannot be accepted that the Commission's delay in completing its preliminary examination may result in the transformation of new aid granted in breach of the last sentence of Article [88(3) EC] into existing aid which can be abolished only with respect to the future (judgment in SFEI and Others, cited above, paragraph 46). 109 First, Article 88(3) EC, as interpreted in the case-law (see paragraph 70 above), and Article 4(4) of Regulation No 659/1999 do not confer any discretion on the Commission as regards initiating the formal investigation procedure where, after carrying out its preliminary examination, it has serious doubts. Notwithstanding the various references which the applicant made at the hearing to the judgment of 9 October 2001 in Italy v Commission, cited above, and in particular to paragraphs 59 to 62 thereof, it cannot be considered, at least at first sight, that by classifying the decision to initiate a formal investigation procedure as an attackable measure, the Court of Justice intended to alter the scope of the Commission's obligation to adopt such a decision in the event of doubt, or that it recognised that the Commission had a wider discretion in that regard. The mere fact that such a decision may give rise to uncertainty as to the legality of proceeding to implement a non-notified State measure does not suffice to justify the balance of interests being opposed to its being maintained in force. 110 It follows, as the applicant effectively admitted at the hearing, that the Community interest on behalf of which the Commission exercises its fundamental role, under Article 88 EC, of ensuring that the common market is not distorted by aid that has not been notified and/or that is incompatible with the common market must, except in truly exceptional circumstances, prevail, at the stage of the adoption of a decision to initiate the formal investigation procedure, over the interest which a Member State may have in obtaining an interim decision of the President of the Court of First Instance preventing the Commission from examining, within the framework of Article 88(2) EC and Regulation No 659/1999, whether a specific measure constitutes new aid and, if so, whether it is incompatible with the common market. 111 Second, since in the present case the applicant is essentially afraid that information potentially very unfavourable to Gibraltar's reputation will be disclosed to the international financial markets by the publication of the contested decisions, the probable effects of such publication must be examined. In that regard, as already stated in paragraph 103 above, it is undoubtedly public knowledge, at least in the financial circles concerned, that the Primarolo group has already examined the legislation in question and that, consequently, that legislation, together with certain other measures that were examined, must be repealed no later than 2005. Nor has the applicant disputed the Commission's assertion at the hearing that, since the end of 2001 at least, new companies have no longer been able to take advantage of the financial arrangements examined. As regards the knowledge that the contested decisions have been adopted, it is common ground that a press release announcing the initiation of the formal investigation procedures was issued by the Commission on 11 July 2001. The essential contents of the contested decision are therefore already in the public domain. 112 The applicant acknowledged at the hearing that there has not yet been any measurable effect in Gibraltar. It maintained that publication of the details of the contested decisions, namely all the incorrect findings of the Commission, and also the warning about the possible recovery of the aid, would place in the public domain information susceptible of causing serious and irreparable harm to it. 113 That argument cannot prevail over the Community interest and the interest of potentially interested third parties. The Commission must be able to communicate to the latter the points on which it wishes, inter alia, to receive observations, not only so that the interested third parties can exercise their rights but also so that the Commission can be in a position, after receiving the comments of the Member State concerned on those observations, to adopt its final decision, on the basis of information that is as complete as possible. In that regard, it should be observed that, according to recital 8 in the preamble to Regulation No 659/1999, the purpose of initiating a formal investigation procedure is to enable the Commission to gather all the information it needs to assess the compatibility of the aid and to allow the interested parties to submit their comments. That recital further states that the rights of the interested parties can best be safeguarded by such a procedure. Furthermore, the second sentence of Article 14(1) of that regulation provides that the Commission shall not require recovery of the aid if this would be contrary to a general principle of Community law. Accordingly, the Commission's express invitation to submit comments on the possible application in the present case of the principle of legitimate expectations must, at first sight, and contrary to what the applicant claims, allay to a considerable extent any concerns which the present beneficiaries of the legislation in question may have. 114 It follows that the applicant's interest in restricting the Commission's investigation of the legislation in question to a procedure relating to existing aid cannot prevail over the Commission's interest in initiating the formal investigation procedures envisaged in the contested decisions. 115 It is, indeed, difficult to envisage the circumstances which, in the absence of a particularly serious prima facie case and manifest urgency, would justify suspension by the judge hearing an application for interim measures of a decision which, in regard to a non-notified State measure that has already been implemented, is limited to initiating a formal investigation procedure. 116 Furthermore, under Article 108 of the Rules of Procedure the judge hearing an application for interim measures may at any time vary or cancel an interim order on account of a change in circumstances (orders of the President of the Court of Justice in Case C-40/92 R Commission v United Kingdom [1992] ECR I-3389, paragraph 33, and of the President of the Court of First Instance in Joined Cases T-7/93 R and T-9/93 R Langnese Iglo and Schöller v Commission [1993] ECR II-131, paragraph 46, Joined Cases T-79/95 R and T-80/95 R SNCF and British Railways v Commission [1995] ECR II-1433, paragraph 43, and the order of 12 September 2001 in Case T-132/01 R Euroalliages and Others v Commission, not published in the ECR, paragraph 15). It follows from that case-law that, by a change in circumstances, what are especially envisaged are factual circumstances capable of altering the assessment made in each particular case of the criterion of urgency. It is for the applicant, if it deems it appropriate, to apply to the President of the Court of First Instance should the serious and irreparable damage which it fears materialise. 117 Since the condition relating to urgency is not satisfied and as the balance of interests inclines in favour of the Commission, the present requests for interim measures must be dismissed. Operative part On those grounds, THE PRESIDENT OF THE COURT OF FIRST INSTANCE hereby orders: 1. The applications for interim measures are dismissed. 2. The costs are reserved.

Leave granted. We have heard learned companynsel for the parties. These appeals arise from the order of the Karnataka Administrative Tribunal made on February 27,1996 in OA No.3034-35/95. The recruitment for the post of teacher was companypleted prior to November 17,1993 and teachers came to be appointed. When the same was challenged, the Tribunal found that they were in excess of 50 of the quota reserved for the backward classes and weaker sections of the society. But the Tribunal declined to interfere with the order on the ground that the appellants belatedly approached the Tribunal on June 15, 1995 by which time all the appointments had companye to be made and the teachers were working. The Tribunal has pointed out thus The present Applications were filed on 15.6.1995. The Applicants question the appointments to the public offices made by the State Government. Any challenge to the appointments by the State Government should be made at the earliest. Any laches on the part of the challenger to the appointments is a ground to refuse the relief. Upsetting of the appointments at this belated stage would also upset the administrative machinery and it is number in the public interest that the appointments made at least a year and six months prior to the filing of the Applications should be set aside. It is true that the reservation in excess of 50 is unconstitutional. The recruitment process numberdoubt was substantially over by the time the Supreme Court announced its judgment in Indira Sawhneys case. Though the select list was prepared subsequently, in all fairness the State Government should have redone the select list in the light of the decision of the Supreme Court. But the question is whether we can, at this stage, set at naught those appointments on the ground of unconstitutionality. The private Respondents have already joined the service. Public interest requires that the experience gained by the private Respondents should number be lost to the public. The relief to be granted by this Tribunal is entirely discretionary. Though Mr. Bhagwath companytends that the Applicants have approached this Tribunal within one year of the date of the cause of action, that may number be technically companyrect. The cause of action arose when the select list was prepared which they knew as unconstitutional even as early as on 17.11.1993. This apart, we are of the firm view that the limitation provided under Section 19 of the Administrative Tribunals Act, 1985, does number companye in the way of exercising our discretion and reject an Application, if the Application suffers from laches. This is the view we have already taken in NAGARAJA AND OTHERS v. DIRECTOR GENERAL AND INSPECTOR GENERAL OF POLICE IN KARNATAKA, BANGALORE AND OTHERS 1995 S.L.J.541 . This Tribunal cannot act mechanically and grant the relief only on the ground that an Applicant has approached this Tribunal within one year of the cause of action and he has made out a good case on merits, ignoring the realities and the effect of the relief on the administration and private parties. This Tribunal cannot shut its eyes to the inconvenience and injury that would result to the private Respondents who have joined the service already. In that view, it cannot be said that the view taken by the Tribunal is number warranted on the facts in this case. Shri Rama Jois, learned senior companynsel for the appellants, companytended that there are still some vacancies and further vacancies have arisen and direction may be given to appoint the appellants to those posts. The Tribunal has pointed out that unless their merits are companysidered by the Service Commission vis-a-vis other eligible candidates and the selected candidates, Tribunal cannot give any such direction for appointment.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Saboon, 2012 ONCA 729 DATE: 20121026 DOCKET: C52872 Goudge, Rouleau and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Musab Saboon Appellant Craig Parry, for the appellant Eric Siebenmorgen, for the respondent Heard and released orally: October 22, 2012 On appeal from the conviction entered on August 20, 2010 by Justice Robert T. Weseloh of the Ontario of Justice, sitting without a jury. APPEAL BOOK ENDORSEMENT [1] The appellant makes several arguments in this appeal. First, he says that the trial judge misapprehended evidence in finding that the appellant admitted he was part of a group surrounding the victims. [2] We do not agree. The particular finding referred to is no more than that the appellant admitted he was present and part of the group, some of whom committed the robbery.  That accurately reflects the appellant’s admission. [3] Then the appellant says the trial judge erred in disregarding evidence that the appellant was separate from those robbing the victims. [4] Again we disagree. There was ample evidence on which the trial judge based his conclusion that the appellant was part of the circle of intimidation. It was not necessary in this relatively simple trial for the trial judge to explicitly reject evidence to the contrary. [5] Finally, the appellant says the trial judge misapprehended the evidence of Perez concerning whether the appellant’s hat had earflaps. While that may be so, it was an insignificant mistake. The victim McGuinty said his robber wore a distinctive hat with earflaps, and the appellant admitting wearing just such a hat. The Perez evidence was not essential to the trial judge’s reasoning or to his conclusion. [6] In summary, there was ample evidence, including importantly, the appellant’s own admissions to conclude that there is nothing unsafe about the appellant’s conviction. The appeal must be dismissed.

THE LORD CHIEF JUSTICE: The applicant, Danny Harold Nightingale, is a Sergeant serving in the Special Air Service. He was born in 1975. He has served in the Army for many years. He is held in high regard by his colleagues and by the officers who have commanded him. He is a family man, a father of two young children. He has no previous convictions or cautions, although there was one military transgression recorded against him many years ago. His Commanding Officer regards his disciplinary record as exemplary and he is described as an exemplary soldier. He has seen service in theatres of war in Northern Ireland, Bosnia, Lebanon, Turkey, Iraq, Afghanistan, Syria and Libya. For much of that time, as with his other SAS colleagues, his life has been at risk. On 6 November 2012 at a Court-Martial held at Bulford, before Judge McGrigor (Assistant Judge Advocate General) he pleaded guilty on re-arraignment to possession of a prohibited firearm and possession of ammunition, contrary to section 5(1)(aba) and section 5(1)(c) respectively of the Firearms Act 1968. He was sentenced to 18 months' detention on the first charge and six months' detention on the second charge, the sentences to run concurrently. He was not formally dismissed from the Service, but, as he was convicted of an offence included in the Queen's Regulations, he is liable to be discharged administratively unless an application is made by his Commanding Officer that appropriate circumstances exist and that a termination of service is not merited. The length of the order for detention is not relevant to this process. He was not reduced in rank or dismissed. The Judge Advocate, in passing sentence, observed: "On the information before us we consider that you may still, with your specialist experience, be of use to the Army in the future." It appears that the maximum period of detention which could be passed at court-martial would be one of two years' detention. There is automatic remission of one-third of the sentence, as compared to the normal remission of one-half following an order of imprisonment in the Crown Court. Additional remission can also be earned on sentences over 90 days at the discretion of the Commandant. The possibility of serving a sentence in a civilian prison was one of the matters which caused Sergeant Nightingale concern when he was considering whether or not to plead guilty to the charges. His application for leave to appeal against sentence has been referred to the full court by the Registrar. He also applies for leave to appeal against conviction. So far as the application for leave to appeal against conviction is concerned, we take the view that that the question is arguable and that leave should be given. Although counsel on both sides invited us to deal with the conviction appeal on the basis of the papers that we have, we are not satisfied that we have sufficient information on which to make a decision. Accordingly, we limit what we have to say to granting leave to appeal. However, so far as the application for leave to appeal against sentence is concerned, we grant leave to appeal and we now deal with the appeal against sentence. In relation to the appeal against sentence, we recognise that the Court-Martial is a specialist court in which considerations relating to military discipline are of considerable importance and that, sitting in this court, we should treat the Court-Martial as a specialist court exercising specific functions in this field. It is, however, also apparent that one of the more significant features of the sentencing decision in this particular Court-Martial arose from the legislation relating to minimum sentences which apply equally to military as to civilian life. The sentencing decision in this case was bedeviled by the provisions of section 51A of the Firearms Act 1968, as amended by section 287 of the Criminal Justice Act 2003. This statute requires the court to impose a minimum sentence of five years' imprisonment on an adult offender convicted of the first offence of which Sergeant Nightingale was convicted, unless there are exceptional circumstances relating to the offence or to the offender which justify a lower sentence. If a sentence lower than this minimum term is imposed, it would be open to the Attorney General to seek an order to increase it on the basis that it is unduly lenient. Here we are invited by Mr Clegg QC, who appears on behalf of Sergeant Nightingale, to apply the age-old principle that justice should be tempered with mercy. By its very nature the statutory imposition of minimum terms is liable to distort the sentencing process, and, by definition, it tends to reduce the parameters for the exercise of judgment in an appropriate case to temper justice with mercy. As it is, on analysis the sentence imposed at the Court-Martial on Sergeant Nightingale was less than one-third of the required minimum term. In this court, effectively the final court of appeal on sentencing matters in this country, although we are still bound by the same legislative provisions, we are inevitably in a far stronger position than a single judge sitting on his own to exercise a broader judgment. That does not mean that we should or that we must do so; everything depends on the facts. The Facts The prosecution began when civilian police officers searched rented accommodation which Sergeant Nightingale had shared with another officer. At the date of the search, Sergeant Nightingale was abroad, serving in Afghanistan. During the course of the search a Glock automatic pistol, in working order, was found in a hard plastic case along with three magazines suitable for use. The firearm was designed to discharge 9mm bulleted cartridges loaded from the magazines. A total amount of ammunition consisting of 122 x 9mm live rounds, 40 x 7.62mm live rounds, 50 x 90mm frangible rounds, 50 x .338 armour piercing live rounds, 2 x .308 live rounds, and 74 x 5.56mm live rounds were found. The Glock pistol and ammunition were found in a wardrobe and the remaining ammunition in a plastic box under the bed. Contrary to some of the publicity which conveys a false impression to think of this as a case involving a single trophy weapon kept by a veteran of many campaigns, the Glock was a modern, highly-dangerous revolver in full working order, with ammunition for use in it. There was, as we have indicated, a substantial amount of additional ammunition which, in the wrong hands, was capable of wreaking havoc. It is clear that the firearms (as we shall describe the pistol and the entire hoard of ammunition compendiously) had come into Sergeant Nightingale's possession lawfully from two different types of source on different occasions. We emphasise, as we did during the course of the argument, that enquiries made during the course of the investigation revealed not the slightest shred of evidence that it was his intention that they should be used for any criminal purpose. Nothing was further from his mind. But it was for that reason that the case was transferred from the civilian police to be dealt with within the military justice system. The Glock pistol was not issued to Sergeant Nightingale by his unit, nor provided for him for use in the course of his duties in Iraq in 2007. In that period of his service he was part of an SAS squadron fighting Al Qaeda suicide bombers. He and his colleague were engaged in desperately serious operations against a ruthless enemy. According to the evidence the tour of duty was relentless, exhausting and dangerous. Throughout, Sergeant Nightingale was, and remained, a quiet, tough, calm, stalwart and stoical soldier who needed neither praise nor thanks. Shortly before the end of his tour in Iraq in 2007 he accompanied his Commanding Officer as part of the military escort to bring back two SAS colleagues who had been killed in action. He did this on the express order of his Commanding Officer who recognised that there was a close personal friendship with one of the dead men and indeed with his family, to whom he offered considerable support. We have evidence today of something of the intensity of the demands to which all the men were subject from the evidence of Colonel Williams. Incidentally, and separately, we have evidence from one of those involved in the arrangements for Sergeant Nightingale's flight back to this country which underlines the overwhelming exhaustion which assailed him and his colleagues. The nature of his responsibility on this sad occasion meant that Sergeant Nightingale did not return home bringing with him his own kit, his personal effects and equipment. Indeed, it was at one stage understood that he would return to active service in Iraq after the funerals. But his tour then ended and in due course his kit back in Iraq was packed by others and sent back to this country in the usual way. The kit included the Glock pistol. The pistol had been given to him while he was deployed in Iraq as a present or souvenir by Iraqi Special Forces in whose training he had become involved. Plainly it was presented to him as a mark of respect and admiration. Another separate and important feature of his service in Iraq arose from his involvement as a combat medic. Sergeant Nightingale helped a group of private medical consultants to design a new type of bandage which would seal chest wounds by the use of a revolutionary gel-like substance. In recognition of his contribution, the new bandage was named, and is known as, the "Nightingale Dressing". We are told that it is used by military and paramedics throughout the United Kingdom to help care for those who have suffered serious chest injuries. Sergeant Nightingale himself has gained nothing from it, beyond no doubt a deep sense of satisfaction that it is a successful invention that will help to reduce suffering. When all his kit was returned, Sergeant Nightingale found the pistol. He intended to have it deactivated -- there is a clear finding to that effect -- and, after it was deactivated, mounted as a souvenir for the squadron. He never got round to that. He kept the pistol first of all in his room in the sergeants mess; and then in January 2011, when he moved to civilian accommodation, in the bedroom in which it was later found. In the meantime, he continued with his military duties, some of which were in this country. Those duties included responsibilities as a range training officer. In that capacity he was supplied with ammunition for use in training. The ammunition found in his room was ammunition which had been lawfully in his possession for this purpose. However, he was required to return unused ammunition to store and not take it to his own quarters. Accordingly, he was in breach of the fundamental principle for the security of arms, ammunition and explosives: that when they are outside secure stores they are never to be left unattended or in the care of unauthorised persons, or taken home in any circumstances. These orders apply to any weapons which have been kept for trophy purposes, at any rate until they have been deactivated. All this was well understood by Sergeant Nightingale. Following his service in Iraq, and having been back in this country, in September 2009 Sergeant Nightingale decided to participate in a jungle marathon in the Amazon Basin. It was a formidable enterprise, scheduled to last for five days and involving running a distance of 220 kilometres. His objective was to raise funds to assist soldiers who had been injured in the course of their own service. The details are unimportant, but at the end of the race he collapsed. He remained in a coma for three days. He suffered a significant brain injury and he was seriously ill. He underwent a large number of seizures which left him in a state of confusion. There were prolonged impairments to his brain function. He had difficulties with memory and word-finding. Even now there are some continuing residual cognitive abnormalities. He has not yet made a total full recovery. In the opinion of Professor Michael Copelman, the distinguished Professor of Neuropsychiatry who examined him, these cognitive and emotional changes will have made a significant contribution to his continued failure to decommission his pistol and to return it and the ammunition to the amnesty box system (that is from the date when he was struck down by his illness). A psychological report by Dr Susan Young, a forensic psychologist and clinical neuro-psychologist, suggests that there had been severe neuro-psychological deficits as a result of the injury, from which Sergeant Nightingale has been making a gradual recovery. She noted that he was highly motivated to return to work because he "loved it" and he had found ways himself to overcome residual problems with, for example, his concentration and his memory. Nonetheless, her view is that he suffered from a form of clinical confabulation, which meant that on occasions his brain would invent memories to fill gaps caused by amnesia. For all that, by October 2010, just over a year after he had sustained the brain injury, notwithstanding the continuing difficulties resulting from the long-term consequences, Sergeant Nightingale had made determined efforts to recover. As a result, he was sufficiently well to return to active service. He served in Afghanistan, and he left the firearms behind him in his accommodation. We have a further reference about the most recent tour. Throughout that period of service he was predominately employed as an SAS soldier working with another Special Forces Regiment, with significant responsibilities. At the end of the tour he received great praise from the commander of that force. He has overcome the huge disadvantage of what for others might have been a devastating blow to his health. Sergeant Nightingale continued in unlawful possession on the basis of the conviction which has been recorded on his own guilty plea -- and this is the only basis on which we can deal with the sentence -- in unlawful possession of the prohibited items because, to put it bluntly, he did not quite get round to disposing of them in accordance with Service requirements. That was a serious breach of military requirements. But it also serves to underline that his continued possession of the firearms was not motivated by any wish to sell them for profit, nor to pass them on to anyone else who might misuse them. Of course, he would appreciate, as well as anyone, that if, for example, his quarters had been burgled, for some burglars at least the pistol and ammunition would have represented a very successful criminal enterprise, and firearms might well quickly have passed into the hands of serious criminals. In short, this was an offence of great folly, but not one undertaken for any personal gain or perceived advantage. As the Assistant Judge Advocate by the sentencing decision acknowledged, there are here exceptional circumstances which enabled the Court-Martial not to impose what would otherwise be the minimum required term of five years' imprisonment. We agree with that conclusion. The question before us today is whether the sentence actually passed made sufficient allowances for the circumstances in which this particular offence was committed by this particular individual. It is plain, and we have already emphasised, that the firearms came lawfully into Sergeant Nightingale's possession. It is an important linking feature that, after that, his continued unlawful possession of the firearms was not motivated by any short- or long-term malevolence. No one has suggested for one moment that he hoped or expected, or ever anticipated for one moment that any of the firearms would be distributed to anyone else. Somehow -- and it tends to explain why this otherwise admirable serving soldier fell into error -- every day that went by after the firearms had not been handed in as they should have been, made it less likely that it would happen. On day one, the need to give up the gun would have been an urgent imperative. But on day one he had returned from the exhausting service which he had given in Iraq, following the death of his colleagues and their burial. By the end of the first week, the sense of urgency would still be present, but diminished, if only by a little; and so on, until the end of the first month and then the first six months. Gradually, the fact that the firearms were being kept at home in his own premises would have become part of daily living, and in the daily routine of hard work the presence of the firearms would have ceased to be something requiring urgent attention into something that would be done, but eventually, when he could get round to it. There are, as Mr Clegg suggested, some dangers of over-familiarity in such a situation. More specifically, it all arises in the context of a man who, in 2009, suffered a highly damaging experience. As a result we have little doubt that Sergeant Nightingale's sensitivity to what in reality was the continuing urgency to remove the firearms from his own possession would, as a result of the consequences of his illness, have become less immediate. By that we do not intend to convey that he will have forgotten all about them all the time; but his mind would have been less acute, less focused on what he continued to keep at his home. No doubt, too, he was preoccupied with the urgent need to return to sufficient fitness to enable him to resume his military duties which he successfully achieved in due course and where, notwithstanding some diminution in his cognitive faculties, he has continued to give highly regarded service. We have stood back and reflected on all these considerations. They lead us to the clear conclusion that for the purposes of the minimum sentence, which we must remember is there, these offences were committed in exceptional circumstances by an exemplary soldier. In these circumstances we believe that our obligation to be loyal to the statute can fairly and justly be achieved by a custodial sentence which will be reduced from 18 months to 12 months, and reduced, in order to enable us to do full justice and exercise a proper degree of mercy, by suspending that sentence for a period of twelve months. Accordingly, the appeal against sentence will be allowed. Sergeant Nightingale will be released immediately. His appeal against conviction will take whatever course is appropriate following advice. ________________________________

Lady Justice Arden: Mr Callard owns one third of the issued shares in Trailer Care Limited. On 27 July 2007 he presented a petition under Section 459 of the Companies Act 1985, naming the other two shareholders, Kevin Pringle and Gary Pringle and the company as respondents. He claims that the company is a quasi partnership company from which he is to be excluded. The directors of the company were Mrs Callard, Mr Kevin Pringle and Mr Gary Pringle. Mr Callard is not a director because he is disqualified from acting as a director, and he says that it was agreed that his wife Mrs Callard should be his nominated director. Management disputes have arisen between the individual parties. There were discussions about Mr Callard buying out the Pringles or the Pringles buying him out in the spring of 2007. Then on 19 June 2007 or thereabouts, at a board meeting the Pringles convened an extraordinary general meeting of the company for 19 July 2007. They immediately suspended Mr Callard from working for the company. They also gave notice that Mrs Callard would be removed as a director at a meeting in the future. There was a holding agreement reached between the parties but Mr Callard says that, in breach of that agreement, the Pringles had changed the locks on the company's premises and refused access to Mrs Callard and disabled the company's computer systems which stopped Mrs Callard from fulfilling her duties. They have also put a stop on the company credit card, of which Mr Callard had previously had the use, but we have not been concerned with that matter. It is also alleged that Mr Kevin Pringle told Mrs Callard on 21 June 2007 not to deduct £10.00 per week from his salary although the company had been instructed to do so by the Child Support Agency. That is another matter with which we have not been concerned. Then on 29 June 2007 there was a meeting to negotiate a resolution of the dispute. Mr Callard says that, other than agreeing to Mr Callard's proposal that an expert valuer was jointly instructed to value the shares, the Pringle brothers were not prepared to agree to anything. He had offered to remain away from the premises provided that he had access to the company's computer system. The Pringles wanted him to resign immediately and they would not adjourn the extraordinary general meeting for the removal of Mrs Callard. By letter dated 29 June 2007 the solicitors for the Pringles wrote to Mr Callard's solicitors stating that the extraordinary general meeting would take place on Monday 23 July 2007, and that a resolution would be passed for the removal of Mrs Callard as a director. They also threatened an injunction if Mr and Mrs Callard attended the company's premises. Mr Callard says that at the board meeting on 29 June, the Pringle brothers had purported to pass a series of controversial additional resolutions of which no notice was given to Mr or Mrs Callard. These resolutions included resolutions purporting to exclude Mrs Callard from participating in any way in the business of the company without the prior consent of the Pringles, and they also purported to remove her from any bank mandate of the company. It is said that the Pringles had thereupon attempted to change the bank mandate and removed her as a signatory. The order sought on the petition is that the Pringles do purchase Mr Callard's shares at their fair value to be determined by the court or an independent valuer, with no discount for a minority shareholding and with a premium to reflect the loss suffered as a result of matters of unfair prejudice or breach of duty with interest. It is said that the Pringles had acted wrongfully and that the relationship of trust and confidence between Mr Callard on the one hand and the Pringles on the other has broken down. There is an alternative prayer for relief that the Pringles do sell their shares in the company to Mr Callard, at a fair value to be determined by the court, with a discount to reflect the loss suffered by the company as a result of the matters of unfair prejudice and/or breach of duty set out above. By way of further background, the Pringle brothers and Mr Callard have apparently been paying themselves a salary of £100 per week and a dividend of £650 per week though the details of how that dividend is paid are not clear to this court. Mr Edmund King, for the appellants, has told us on instructions that the dividend is, as it were, legitimated at the end of the financial year. The appellants' case is that Mr Callard: "…was justly excluded from the company on the grounds that (a) he misappropriated money from Company to found a company which he has set up with his wife, who is a director of the Company; (b) he took confidential information from the Company to assist with that new company; (c) he used company funds and his company credit card for personal use; (d) he held himself out as a director of the Company, which he was not and which he was not entitled to do as he had been disqualified from acting as a director." I there quote from paragraph 2 of the appellants' skeleton argument in this court. Of course all those matters are in issue; nothing which this court says constitutes any finding of fact; that would be a matter for trial if there ever has to be a trial of this case. The individual appellants also say that they are physically frightened of the petitioner who has, they say, boasted to them of his convictions for violence. Their evidence is that the petition should be dismissed on the grounds that they were entitled to exclude the petitioner. On 19 July 2007, Mr Callard made an application for certain injunctions against the Pringle brothers in his Section 459 proceedings. The injunctions which he sought included injunctions preventing the Pringle brothers from attempting to remove Mrs Callard as a director, or changing the company bank account or making any changes to their salary or dividends; he also sought mandatory orders for full unrestricted access to the premises and to copy documents. The matter came before Mann J on 27 July 2007, and he granted a stay of the proceedings and certain orders: I will come to those orders in a moment. It is said in the grounds of appeal that the judge erred in refusing to entertain arguments as to why Mr Callard could not demonstrate a serious issue to be tried, saying that the question of whether the petition had a real prospect of success would have to be determined on another day. It is also said in the grounds of appeal that he granted an injunction without considering whether the petitioner had shown a serious issue to be tried, and in addition that he failed to consider whether damages would be an adequate remedy and whether the cross-undertaking would be an adequate remedy. He failed to take into account the status quo and the delay in bringing the application and he wrongly considered that all that should happen was that the Section 459 petition should be stayed for mediation. It is further said that the judge should have held that the petition was liable to be struck out and that no injunction was appropriate. Reliance is placed on the speech of Lord Hoffmann in O'Neill & Anr v Phillips & Ors where Lord Hoffmann sets out the criteria for an offer which, if made by a respondent to a contributor's petition under Section 459 and which, if made, may lead to the further prosecution of the petition being an abuse of process of the court. After Mann J made his order, an appeal was entered in this court on 30 July 2007, and on 1 August 2007 Jacob LJ made a direction that the application for permission to appeal should be relisted for hearing at the convenience of the court, that Mr Callard was not to inspect documentation or attend the company's premises pending a hearing of the application or an appeal, and that the parties were to mediate the dispute between now and the hearing of the petition. He stated that the court would require the parties to provide details and evidence of their attempts to mediate the dispute at the relisted hearing. I should say that Jacob LJ directed that the appeal should be heard either immediately after the permission application or with it. I now go back to the order as made by the judge. The position is that we have no note of any judgment of the judge. It appears that he did not give reasons for the order that he made. We do not even have a transcript of the hearing because, as we understand it, the tape was not switched on to enable it to be recorded. We have, however, a solicitor's attendance note, to which the respondents to this appeal have made certain amendments, though I think it is true to say it is not an agreed document. That solicitor's attendance note has, however, been of assistance. The further problem on this appeal is there is no agreed minute of order of the judge's order, and there is a measure of dispute about precisely what was ordered. It is not the function of this court on this appeal to go into those disputes; that would be a matter for the Chancery Division. Having looked at what the parties say about the terms of the order which the judge made, it seemed to us that the right way to proceed was to proceed on the basis that the order which the judge made is effectively that summarised in paragraph 12 of the respondent's skeleton argument in this court. We are therefore expressing no view on what should go into the recitals to that order. There are, however, two qualifications I must make to the summary in paragraph 12 of the respondent's skeleton argument but I will first read the first four of paragraphs of that summary. I start with the first: "1) An interim order staying the Application and the substantive s.459 proceedings until 21 September 2007 (a period of 8 weeks) to enable the parties to settle by means of mediation;" The first qualifications to be made to the summary apply to this paragraph. As we read the solicitor's note of attendance before the judge, the judge did not intend to stay any application which may be necessary and may be advised to strike out the petition on the grounds of an abuse of process and accordingly, the order as drawn should reflect that there is an exception from this stay, namely the stay does not apply to the issue of an application to strike out the petition on the grounds that offers have been made, and that that application can be drafted, issued and served, together with the accompanying evidence and skeleton argument even before 21 September 2007. There would, however, be no hearing before that date. Paragraphs (2) to (4) of the summary state: "(2) An interim injunction order that during the period of the stay Mr Callard's wife, Mrs Tina Callard, is to remain a director of the Company and an EGM called to remove Mrs Callard should be adjourned; (3) An interim injunction order ordering that the Pringles must give to Mrs Callard at least 24 hours notice in writing of any cheques or other financial documents that they propose to sign on behalf of the Company; (4) An interim injunction order that the £750 per week currently paid to Mr Callard will be reduced only in the event that the £750 per week currently paid to each of the Pringles is also reduced;" Paragraphs (5) and (6) of the summary 12 set out the terms of the judge's order as to access to the company's documents, and it is common ground that it applies to documents of all kinds and not simply accounting records. It is not necessary for me to read those paragraphs out because Mr King does not seek to disturb those orders. I can now deal with the second qualification to this summary. It is agreed between Mr Parsons, for Mr Callard, and Mr King, for the appellants, that the access to the books and records provided for in these paragraphs is for Mr Callard's use solely for the purpose of valuation and mediation, not otherwise. That is an agreed matter, but it will be noted that those paragraphs give very extensive rights to Mr Callard to see the documentation of the company on a regular basis and for substantial periods at a time. Accordingly the principal issues on this appeal relate to paragraphs (2), (3) and (4) of the order as summarised in paragraph 12 of the respondent's argument. I would, at this point, go back to the hearing before the judge, and to what appears from the solicitor's attendance note. The judge had before him the application by the petitioner which I have already mentioned. Mr Parsons, who also appeared before the judge, submitted that the application was urgent because there was an extraordinary general meeting to remove Mrs Callard, fixed for 23 July 2007. The judge indicated that he intended to proceed on the basis that Mr Callard would sell his shares if he were successful in his petition. Mr Parsons submitted that Mr Callard needed access to the company documents. Mr King, who again appeared below for the individual respondents to the petition, submitted that the Pringles did not want to part with the business as they had been running it for 30 years. Mr Parsons submitted that there had to be equal treatment of his clients. He asked that Mr Callard should have use of the credit card, but the judge rejected that request as Mr Callard had no need to use it given that he had been suspended as an employee. I should point out there is no cross appeal on that point. The judge indicated that any order would last for a short period until the application to strike out the petition could be dealt with. He indicated that, so far as he was concerned, both parties needed a valuation and that he would stay the petition for mediation and settlement after the valuation. He said that he proposed to stay the petition for eight weeks to allow for mediation and settlement. The relief in the interim application was to hold the ring for the purposes of valuation and that the access to information was for those purposes only. As I have said, the parties have been unable to agree the form of the order. We do not have a reasoned judgment of the judge; what I have summarised above are points taken from the solicitor's attendance note as points made by the judge in the course of argument. This court would not normally rely on those as constituting the judge's reasons, but in this particular case it seems that the judge made his order following on from the observations that he had made in the course of argument. I now go to the general subject of the approach to interim remedies on a Section 459 petition. It is common ground that in general the principles in American Cyanamid Co v Ethicon [1975] AC 373 apply and that accordingly the court must first be satisfied that there is a serious issue to be tried and that damages would not be an adequate remedy. Mr King's argument on this appeal is essentially that the judge should not have granted any injunction as there was no serious issue to be tried on the petition in the light of the fact that his clients had made two offers which complied with the criteria laid down by Lord Hoffmann in O'Neill v Phillips [1994] 1 WLR 1092. He submits that valuation was an adequate remedy. Mr Parsons for the respondents submits that what the judge was doing was exercising his case management power to stay the proceedings and to hold the ring in the meantime, but of course the mere fact that the judge grants a stay does not mean that a party is entitled to the grant of an injunction. There still has to be a serious issue to be tried and the other considerations in American Cyanamid have to be considered. Mr Parsons submits that the principles in American Cyanamid have a qualified application in this context. He relies on the judgment of Hoffmann J (as he then was) in Re a Company [1985] BCLC 80 at 82 to 83: "I would add that, as it seems to me, in cases of litigation under s75 it is most desirable that the position of the company be not altered or disturbed more than is absolutely essential, between the presentation and the hearing of the petition. The existing share structure, the existing contractual rights, the present service contracts and so forth, should in my judgment be maintained as they are pending the determination of the litigation. There might be circumstances where change was essential, but if possible the existing position should be preserved. In my judgment, that is a factor which in these matters arising under contributories petitions is particularly powerful and has more than the normal 'Cyanamid' (American Cyanamid Co v Ethicon Ltd [1975] I All ER 504, [1975] AC 396) force in favour of preserving the status quo, since it is the very nature of this matter that the status quo must affect the remedy which may be available." In that case there was a risk of irreversible damage if an interim remedy was not granted. That is because the respondents to the unfair prejudice petition in that case proposed to make a rights issue and Hoffmann J held that there was an arguable issue as to unfair prejudice where the object of the issue, and its effect, might be to deplete the resources of the petitioner to such an extent that he could no longer properly prosecute the petition and where he could not take up his proportionate entitlement under the rights issue. In my judgment it is very important to read what Hoffmann J said against the background of those facts. He had in mind a situation where the refusal of the interim remedy could affect the remedy that might be available at trial. Accordingly, when Hoffmann J says that "it is the very nature of this matter that the status quo must affect the remedy which may be available", he is referring to the very nature of the matter which was before him, and his observations as to the desirability of maintaining the status quo being a particularly powerful matter in a contributory's petition apply where, and only where, the failure to maintain the status quo may affect the remedy sought in the petition. It is a very different matter where the remedy sought at the end of the day is a buyout and where the matters complained of on an interim basis can be taken into account in the process of the valuation of the shares for the buyout. This is made clear by Hoffmann J in Re Posgate and Denby (Agencies) Ltd [1987] BCLC 8. Hoffmann J said this at pages 16 to 17: "Assuming that I am wrong in holding that the petitioner has not made out an arguable case, the next question is whether it is just and convenient that I should grant the injunction. That is a question to which as it seems to me the American Cyanamid rules apply by analogy. One cannot literally ask whether damages would be an adequate remedy because s. 461 does not provide for an award of damages at common law. But the section allows the court to order various forms of financial compensation, for example the respondents can be ordered to buy the petitioner's shares at a price which reflects the value they would have had if the unfairly prejudicial issue conduct had not taken place. "I cannot see how the petitioner can suffer prejudice from the proposed transactions unless it turns out that the syndicates could have been sold at a higher price. The fact that the equity shareholders have not been given the right to block the sales cannot constitute prejudice let alone unfair prejudice without regard to the financial consequences to the shareholders and sales going through. On the other hand, it the evidence at the hearing of the petition shows that it is well founded and that the syndicates have been sold an undervalue, the court can order financial compensation. On the respondents' side there is a good deal of evidence to show that continuing uncertainty about the future of the syndicates is damaging to the goodwill attaching to their management and that unless they are quickly sold that goodwill may disappear. Although there is some dispute about the degree of urgency the existence of such a risk is not seriously denied. "The position is therefore that if I grant an injunction and allow the holders of the majority of the equity shareholders the right to veto the transaction there is a risk (to put the matter no higher) of thereby causing irreparable harm to the company and its shareholders as a whole. If I refuse the injunction and the transaction turns out on the hearing of the petition to have been unfairly prejudicial to the petitioner, he can in my judgment be fully compensated by orders which enable him to receive the value that his shares would have had if the transaction had not taken place. Counsel for the petitioner said that this would be shutting the stable door too late, when it might be impossible to quantify the loss, if any, which the sales had caused to the company. But I think that proof of some undervalue must be an essential element in the petitioner's case and the quantification of that undervalue, difficult as it might be, is a familiar problem faced by the courts in many different contexts. It does not prevent financial compensation from being an adequate remedy. "The balance of convenience is therefore in my judgment heavily against the grant of an injunction. The right course is to allow the board to proceed with the proposed sales and to leave the petitioner, if so advised, to pursue such other remedies as may be available under S. 461" So Hoffmann J refused on that basis to grant an interim remedy in a Section 459 petition when an order was sought seeking to enjoin the disposal of certain of the company's assets. He said that that could all be dealt with at the stage when the valuation of shares was being done if the petition was successful. Accordingly, as I see it, when considering the grant of interim remedies the court must consider whether there is an issue to be tried and, if there is, then the court has to consider whether there is an adequate remedy at the end of the day for the petitioner. Now that takes me first to the question of whether there is a serious issue to be tried. As I have indicated, Mr King's argument on this appeal is that the judge should not have granted any injunctions as there was in his submission no serious issue to be tried because of his client's offers. The correctness of this submission turns on whether or not the individual respondents have made a proper offer for the purposes of O'Neill v Phillips. What is known is that that issue is contested, at least that is known at this stage. It was open to the judge, if the position before him was not clear, to decide that he could not properly deal with that matter before him without proper evidence on the offers and skeleton arguments dealing with the application of O'Neill v Phillips and also giving a proper opportunity to the petitioner to be heard. There was no application for striking out the petition at that stage. In the circumstances, as it seems to me, the judge was entitled to take the view as a matter of case management that he could not deal with that issue at that stage on 27 July, and that there was insufficient time and it was otherwise inappropriate for him to do so. On that basis he was entitled to proceed on the basis that there was a serious issue on the petition to be tried. As I have recounted, the judge was prepared to proceed on the basis that Mr Callard would be a seller, seller only, not a buyer, and I have recounted already that the appellants are not only majority shareholders but they also, as we are told, have been involved in this company for some 30 years. Mr Callard has not cross-appealed from the judge's holding. On the other hand, Mr Parsons submits that there is a prayer in the petition for a buyout order and that his client wants to keep all the options open. I have to say that there does not seem to me to be much evidence to show that it is a realistic prospect at this stage, but in view of the speed with which this appeal, and no doubt the application below, came on, I would not decide this appeal against him on that point alone. So as it seems to me it is necessary to move to the next issue about the adequacy of remedies. I do this by reference to paragraphs (2), (3) and (4) in the summary in paragraph 12 of Mr Parsons' skeleton argument. As I have said, those are the only ones which are now in issue. Paragraphs (2) and (3) can in my view be taken together because they both relate to Mrs Callard and to the fact that she is to have information about the company's transactions. The position is that Mrs Callard has agreed to stay away from the company's premises. She had previously had payroll responsibilities but they have been taken over by someone else. Mr Parsons explains to the court that the reason why it is desired that she should remain a director is so that she can get advance information of transactions and so she if was notified that "the company was about to take on a massive liability", and there I quote from Mr Parsons' argument, "she might want to intervene in the affairs of the company, or rather Mr Callard might wish to do so". So the primary purpose is to receive information. She could provide that to Mr Callard so that he had the basis for some other application. Mr Parsons submits that this is consistent with holding the ring. He submits that anything could happen. The Pringles have already removed Mrs Callard from the bank mandate but he accepts very fairly that if the company gave Mrs Callard advance notice of transactions over a certain size, that would perform the same purpose as her remaining as a director. Mr King has stated on instructions that his clients are prepared to give two business days' clear notice of any transaction over £10,000. Mr Parsons submits that that figure should be £5,000. We have been shown the annual accounts for 2004 and the abbreviated accounts for 2005. In my judgment the figure of £10,000 would be adequate to protect the petitioner's interests. The court has got to bear in mind that this company has to carry on its business and that a balance has to be struck between the interests of the petitioner and the interests of the respondents. It would be no good to the petitioner if the company's business was effectively driven into the ground. On that basis paragraph (2) can be discharged and it is unnecessary to decide whether it is appropriate for the court as an interim remedy to prevent the company from exercising its undoubted statutory right to remove a director by an ordinary resolution. We have been taken to the decision of Mervyn Davies J in Re Sticky Fingers [1992] BCLC 84, where the petitioner sought an order of the court under S. 371 of the Companies Act 1985 convening a meeting of the company for the purpose of appointing his own director. The court granted that relief on the basis that there was to be an equal playing field and that no steps would be taken to remove the respondent to the petition, although the petitioner was in fact a majority shareholder. That was a very different situation. In essence it is contrary to principle to impose a director on a company. It is highly impractical so to do in any event where there are disputes between the directors or indeed, as here, allegations of improper conduct. Accordingly, the court would have to be extraordinarily cautious before imposing a director on a company by way of an interim remedy, but as I have said it is not necessary to decide that point. Having reached this point it is unnecessary also to deal with paragraph (3) of the summary of the judge's order. It is unnecessary for there to be an order that Mrs Callard have 24 hours' notice in writing of any proposal to sign any cheques or certain other documents -- there is a dispute as to precisely what documents are intended to be referred to -- because of the undertaking which Mr King is prepared to give on behalf of the individual respondents. That takes me to paragraph (4) of the summary, that is, that there should be an interim mandatory order that the £750 per week currently paid to Mr Callard should only be reduced to the extent that the same amount is reduced in relation to the Pringles. The position is that Mr Callard is entitled to £100 per week as an employee and he is at the moment suspended. The company has indicated that it intends to implement its disciplinary procedures against him. As regards the payment of £100, in my judgment, that appears to be a remuneration of Mr Callard in his executive capacity and not a benefit which he receives as a shareholder and thus it would not be appropriate to make an order for the payment of that sum in these proceedings. His proper remedy is by way of enforcement of his contract of service, which I understand is not written, but there is nonetheless a contract of service, or was one. As regards the balance of £650, it appears as I say to have been paid by way of dividend there are obvious issues regarding legality if the company makes interim payments of dividend without having appropriate accounts on which to do so and for the company to continue to pay these sums when those sums are intended to reduce the share price would in certain circumstances involve a violation of Section 151 of the Companies Act 1985. In my judgment it is not appropriate to continue the order in paragraph (4). Mr King is correct in submitting that if there are sums outstanding to Mr Callard they can be taken into account either as a credit or a debit, depending on who ultimately purchases the shares, if indeed the petition is successful. Accordingly, I would discharge paragraph (4). In those circumstances I would dispose of this appeal as follows. On the appellant giving an undertaking to give not less than two clear days' prior written notice to Mrs Callard on any transaction over £10,000, and to give that notice also to the petitioner's solicitors, I would grant permission for this appeal and allow the appeal. If my Lord agrees, I would also direct, in the light of previous experience, that the parties should remain within the precincts of the court to enable counsel for the appellants to draft a minute of order and to present it to Mr Parsons for the respondents for their agreement so that an agreed minute of order can be handed into the court and an order drawn. Obviously counsel can agree the precise wording of the undertaking. If the matter is not agreed, then it should be mentioned to the court at 4.00pm. Lord Justice Thomas: I agree and in particular with the order my Lady has proposed. Order: Application granted. Appeal allowed.

M. Ahmadi, K. Jayachandra Reddy and G.N. Ray, JJ. During the companyrse of the hearing of this petition Mr. Kapil Sibal urged the following companytentions for our companysideration Sub-section 1 of Section 3 of the Judges Inquiry Act, 1968, mandates that the Speaker of the House of the People shall either admit or refuse to admit a motion for presenting an address to the President of India for the removal of a Judge of the Supreme Court of India only after companysidering such materials, if any, as may be available to him and failure to companyply with the said sine-qua-non, viz., companysideration of available material before admitting the motion, vitiates his decision for number-application of mind.

LORD JUSTICE RICHARDS: The appellant, Thomas Archer, is a young man aged 22. On 31st January 2011 in Luton Crown Court, after a trial before Her Honour Judge Mensah and a jury, he was convicted unanimously of kidnapping (count 1) and was convicted by a majority of 10 to 2 of robbery (count 3). He had previously pleaded guilty to common assault (count 4). His convictions placed him in breach of earlier suspended sentences. The total sentence imposed on him on the present occasion was three years and seven months' imprisonment. He now appeals with leave of the single judge against the robbery conviction on count 3. He also makes a renewed application, following refusal by the single judge, for leave to appeal against the conviction of kidnapping on count 1. A co-accused, William Holmes, was jointly charged with the appellant on counts 1 and 3. He pleaded guilty to count 3 prior to trial and was convicted by the jury on count 1. His application for leave to appeal against conviction was refused by the single judge and has not been renewed. The offences relate to events on 14th September 2010. At a multi-storey car park in Bishops Stortford the appellant, his co-defendant Holmes and a young woman by the name of Charlotte Alpress got into a black Vauxhall motorcar owned and driven by James White. White then drove them to various locations at their request. During the journey they took cocaine in the back of car, though this was not the subject of any count. The prosecution case against the appellant and Holmes on count 1 was that acting together in a joint enterprise they compelled White to let them into his car and to drive them where they wished to go, by threatening a serious assault on him if he did not do so. The defence case was that White let the appellant and Holmes into his car willingly and drove them around of his own volition. He was not forced or threatened in any way. They both left the vehicle at various times and White had the opportunity to drive off had he wished to do so. There came a point when White's car stopped at another car park, at Cannons Middle Lane. Two other relevant cars were parked at that location. The occupants of one were Glenn Pamphilon and his friends including George Smither and James Paffey. The occupants of the other were Matthew Almond and his girlfriend Emily Daniels. Those two cars were initially parked about 10 feet away from each other and the occupants had been outside their cars chatting to one another. They got back into their cars after the arrival of White's car. There was evidence that the appellant and Holmes knew the two groups and were aware that those two groups knew one another. What happened next was in summary as follows. Holmes got out of White's car, walked across to Pamphilon's car, threatened the occupants and obtained Paffey's mobile phone. This was the subject of count 3, the robbery charge, not only against Holmes but also against the appellant. As we have said, Holmes pleaded guilty to that count. The main issue on the appeal is whether there was evidence on which the jury could convict the appellant on that count on the basis of joint enterprise. There had been, according to the evidence, no relevant discussion between the appellant and Holmes while they were in White's car. The appellant got out of White's car after Holmes had gone across to Pamphilon's car. The appellant did not approach Pamphilon's car but he did approach Almond's car. At that point Almond had been driving off but had stopped, on his evidence, to make sure that Pamphilon was okay. He had wound down his window for that purpose. The appellant approached him, spoke to Almond and then removed the keys from the ignition. Almond, however, grabbed the appellant's arm, pulled it back into the car and recovered the keys. As he put them in the ignition the appellant grabbed him by the throat and raised his fist but Almond succeeded in releasing himself, turning on the ignition and driving off out of the car park, whereupon the appellant returned to White's vehicle. This aspect of the incident was the subject of count 4, a charge of common assault by the appellant on Almond to which, as we have said, the appellant pleaded guilty. In addition, however, the prosecution case was that what the appellant did in relation to Almond also constituted participation in the robbery of Paffey's mobile phone. The appellant's case was that his actions in approaching Almond were not connected whatsoever with what Holmes was doing vis-a-vis Pamphilon's car and Paffey and he had not participated in the robbery. At the trial, evidence for the prosecution was given by White, Smither, Paffey, Pamphilon, Almond and Daniels. There was also evidence of the police interview in which the appellant said he had got out of the car at Cannons Middle Lane car park to urinate; he was unaware that a robbery was taking place or that a mobile phone was taken; he was paying full attention to urinating and nothing like that described in Almond's witness statement had happened. At the close of the prosecution evidence, the judge acceded to submissions of no case to answer in relation to count 2, which was a charge of blackmail in relation to which it has been unnecessary for us to say anything further. But she rejected submissions of no case to answer on counts 1 and 3. The appellant and Holmes then gave evidence in line with the defence cases we have already summarised. The appellant admitted in his evidence that he had lied in his police interview but he maintained that there had been no discussion or planning in relation to the robbery on Paffey and that he was not involved in any way with it. He said that coincidentally and independently he left White's car to commit an offence against Almond. It seems that in the course of his evidence he sought to give the impression that he did not usually behave in the way alleged, which led to the admission into evidence of the fact that he had previous convictions, including convictions for robbery. Following the defendant's evidence, Almond was recalled for further cross-examination, either because it was thought that certain questions put by the prosecution to the appellant in the course of cross-examination required further questioning of Almond or at any event because there was no clear or agreed recollection of what Almond had said in the course of his evidence-in-chief. In his further cross-examination after recall, Almond agreed that he had thought that the appellant was trying to steal his car and he said that the appellant had not restrained him from going anywhere apart from taking his keys "to sort of stop me moving anywhere". His concern was to get his girlfriend away. He said he was not trying to drive towards Pamphilon's car at the time when the appellant approached and attacked him, nor was he trying to get out of his own car and go over towards Pamphilon. He was not stopped from doing anything apart from getting his girlfriend away. He was trying to leave the scene. In further re-examination he confirmed that his car was stationary when the appellant approached it and that he had stopped to check that Pamphilon was okay. After that evidence, the submission of no case to answer on count 3 was renewed on the appellant's behalf but was again rejected by the judge. We turn to the appeal in relation to count 3. In her ruling on the submission of no case at the end of the prosecution evidence, the judge proceeded on the basis that if the jury were satisfied that the appellant was assisting the robbery by preventing Almond's vehicle from leaving, that would satisfy count 3. In her further ruling after Almond had been recalled for further cross-examination, she dealt with the matter in this way: "It is also open to the jury to say 'Well no, we look at all the facts in this case, we can draw inferences, it is not just what the victim says, what does he know about what is in Mr Archer's mind, we have heard Mr Archer, we choose to disbelieve him or believe him on parts and our view is that he saw his mate going to rob the others, he saw Mr Almond about to leave the car park and he thought to himself "Let me go and assist him by blocking Mr Almond or delaying him or doing something to prevent him leaving the premises, or assist in some way".' If they come to the conclusion that Mr Archer was assisting in some way, and you can assist in many different ways ... If they come to the conclusion that he participated with the intention of committing that offence then they can find the defendant guilty." Mr Walker on behalf of the appellant submits that the judge was in error in declining to withdraw count 3 from the jury. The first submission he makes is that the criminality accepted as constituting the common assault on Almond (count 4) cannot at the same time found a basis for finding the appellant guilty of the robbery of Paffey (count 3). In our view there is nothing in that point. There is no reason why the circumstances of the admitted count 4 offence should not also be relied upon in support of the case on count 3 and in an appropriate case constitute evidence of participation in the count 3 robbery. The second and main submission advanced by Mr Walker is that there was simply no evidence to support a finding of participation by the appellant in the robbery. He makes a complaint that the prosecution case changed during the course of the trial. He says that in opening the matter was put in terms of direct involvement by the appellant in the robbery, whereas by the time the case closed it had moved to one of participation through acting in some way to stop Almond intervening or getting away. We are not satisfied that there was actually a change in the way in which the Crown put its case, but in any event this point does not seem to be a material one. What matters is how the case evolved and was left at the end of the evidence. As to that, Mr Walker submits that Almond's further evidence following his recall simply did not support any contention that the appellant was acting to stop Almond from intervening in the count 3 robbery. Almond accepted in terms that he did not intend to intervene and he was not stopped from intervening. There was no other respect in which the appellant can be said to have interacted with the parties concerned in the robbery. There simply was no proper basis upon which the jury could infer on the evidence that he was participating. We reject those submissions. We are not persuaded that the evidence against the appellant on count 3 was so tenuous that it was wrong for the judge to leave that count to the jury. In our judgment it was open to the jury on the evidence before them to infer that the appellant's actions towards Almond, who on his own evidence had stopped to check that Pamphilon was okay, were directed at supporting Holmes and assisting him in relation to what he was doing by Pamphilon's car and in particular in relation to the robbery of Paffey's phone, rather than being altogether unconnected with what Holmes was doing. The appellant knew that Almond was acquainted with Pamphilon's group. He saw that Almond's car had stopped not far away from Pamphilon's car. It was a safe inference for the jury to draw that he was acting in some way to assist in relation to the robbery, whether by preventing Almond from intervening or by preventing him from leaving the scene. Accordingly, we conclude that the judge was right to reject the submission of no case to answer. A separate argument advanced in relation to count 3 concerns the judge's directions to the jury in her summing-up. In the course of her general directions about joint enterprise the judge explained that offences can be committed by two or more people each playing a different part but each equally in it together as part of a joint plan or agreement. She gave an example by reference to an unrelated case of armed robbery and went on: "... that is what the prosecution say is the case here; that these two have agreed to act together, and when we say 'agreed' it doesn't mean that there has got to be some formal contract about it, it doesn't even mean that they have to have said so in words, it may be as the result of planning or it may be some tacit understanding reached on the spur of the moment; in those circumstances at that time two people decide 'Well let's go and commit this offence'." It is submitted that this amounted to a direction to the jury on the basis of a conspiracy concerning count 3 and that it erroneously picked up something which prosecution counsel had said in closing submissions to the effect that if the appellant, having agreed with Holmes, got out of the car and went to rob Almond, he was guilty of robbery, there being however no evidence of any such agreement. We cannot accept that line of argument. What the judge said to the jury about agreement was said in the context of her overall direction on joint enterprise and was not in itself open to objection. Moreover at the end of her general direction on that topic she said this on the question of participation: "Finally on that point about jointly participating, just being at the scene, so merely being present at the scene of an offence is not enough to prove guilt and that must be obvious because if a bank robbery is taking [place] most people will happen to be going there innocently taking their own money out of the bank when it goes on and not therefore guilty of the robbery just because they happen to be there, but if you find that a particular defendant was on the scene and intended and did, by the fact that he was on the scene, encourage or assist the other person in that offence then he is guilty, so if you conclude that Mr Archer was doing something else in relation to Matt Almond, nothing to do with Mr Holmes or Mr Paffey, or that Mr Archer was hanging around not doing anything in particular at that time but not assisting in any way, not encouraging in any way and not intending in any way to assist, then that mere presence wouldn't allow you to find him guilty of that offence so bear that in mind when you consider their joint participation." A little later, when dealing specifically with the elements of the offence under count 3, she referred to the fact that Holmes had admitted the robbery and said that what the jury needed to consider was whether the appellant was also involved in the robbery. She continued at 16A: "If you conclude that he was ... It must be on the basis that he was a joint participant in the examples that I have already given you. If you think that he was merely standing by uninvolved or was committing his own offences against Mr Almond, completely independently of Mr Holmes and Mr Paffey, then he could not be guilty of this robbery." Then a little later, after referring more fully to the nature of the prosecution case, she said: "There is no discussion of a robbery. Mr Holmes goes towards the vehicle in which Mr Paffey is and subsequently takes his mobile phone, so Mr Holmes has left the vehicle. Seconds later Mr Archer leaves that same vehicle and he decides - this is his evidence - to do the same in respect of another vehicle, Mr Almond's vehicle. The prosecution say ... that he must have gone over in order to help Mr Holmes to rob Mr Paffey by playing another role, for example preventing Mr Almond getting away, possibly to go and raise the alarm. You need to consider that carefully." Looking at those directions as a whole, we see no problem with them. We are satisfied that the judge, having properly decided to leave count 3 to the jury, directed them correctly in relation to it and that the verdict on count 3 is safe. We turn to the application for leave to appeal against conviction on count 1 which is renewed on the following basis. It is submitted that the judge erred in leaving the count to the jury. The essential elements of the offence of kidnapping as set out in R v D 1984 AC 778 at 800G are: (1) the taking or carrying away of one person by another; (2) by force or by fraud; (3) without the consent of the person so taken or carried out away; (4) without lawful excuse. The facts of the present case, it is said, did not support the existence of two of those elements, namely the use of force or fraud or the taking or carrying away of the complainant. The complainant White was not subjected to any force and he drove himself and the applicant away. It is submitted that what is alleged to have occurred here, involving a restraint on White's freedom of movement by deliberate intimidation, might have constituted the offence of false imprisonment but did not constitute kidnapping. In her ruling on the submission of no case the judge said that she was satisfied that kidnapping by force or fraud included circumstances where there was no actual physical force and she gave the example of the threat of force by pointing a knife or gun at a person while saying "do this or else". The single judge considered that the judge was correct to conclude that the requirement of force includes a threat of physical force, it being common ground that in either case there must consequently be an absence of consent by the victim. He also considered that the judge was correct to conclude that taking or carrying away can effected by the victim walking or driving away himself, that is pursuant to force or the threat of force and against his will. We agree. It seems to us that if a person acts under threat of serious violence against him to allow two people into his car and to drive them around under their instructions, there is plainly a sufficient element of force and of taking or carrying away for the offence of kidnapping. The renewed application in relation to count 1 is therefore refused, and for the reasons we have given in relation to count 3 the appeal is dismissed.

Dr. ARIJIT PASAYAT, J. These appeals are directed against a companymon judgment of a learned Single Judge of the Punjab and Haryana High Court disposing of three Second Appeals filed under Section 100 of the Code of Civil Procedure, 1908 in short CPC . All the three appeals and the cross objections filed related to certain acts of one Shivdev Singh. All the appeals and cross objections were dismissed except with certain modifications. The background facts in a nutshell are as follows Shiv Dev Singh was allotted land measuring 811 kanal 14 marlas out of which he effected sale of 440 kanals earlier. The said sale is number disputed in the present proceedings. Shiv Dev Singh earlier married Harbans Kaur and from the said wedlock one son i.e. plaintiff Lt. Col. Rattan Singh, and four daughters who are also plaintiffs along with Lt. Col. Rattan Singh in Civil Suit No.172 of 3.9.1994 were born. Smt. Harbans Kaur died in the year 1986. Shiv Dev Singh thereafter married Iqbal Kaur and from wedlock of Shiv Dev Singh with Iqbal Kaur, Jaspal Singh, Lakhwinder Kaur, Sukhjinder Kaur and Baljinder Singh and Balwinder Singh were born. The dispute in these appeals is in respect of the land measuring 337 kanals 10 marlas. Shiv Dev Singh executed a gift deed on 19.12.1962 in favour of Jaspal Singh, one of the sons of Shiv Dev Singh in respect of land measuring 10 kanals 5 marlas. The said gift deed was disputed by his another son Lt. Col. Rattan Singh and four daughters in Civil Suit No172 of 3.9.1994. Regular Second Appeal No.2550 of 2000 before the High Court arose out of the said suit. The said suit was for declaration to the effect that they are companyowners in joint possesson to the extent of share, and that the property in the hands of Shiv Dev Singh was ancestral. In the written statement, the defendant denied that the land was ancestral. It was asserted that same was self acquired property of Shiv Dev Singh. It was pleaded that since 19.12.1962 when Shiv Dev Singh gifted the land in his favour, possession was delivered to him and ever since he is companytinuing in possession as owner of the suit land. Jaspal Singh, the donee, was minor at the time of execution of gift deed. The learned trial Court recorded a finding that the suit land was ancestral in the hands of Shiv Dev Singh and that alienation of ancestral property effected by father of a Hindu governed by Mitakshara law companyld be challenged in terms of Article 109 of the Limitation Act, 1963 in short the Limitation Act within 12 years from the date when alienee takes possession of the property alienated. Since Jamabandi for the year 1973-74, Exhibit D-8 Jamabandi for the year 1978-79 Exhibit D-9 , Jamabandi for the year 1983-84 Exhibit D-10 record Jaspal Singh as a person in possession, the Court returned a finding that Jaspal Singh came into possession more than 12 years before the filing of the suit and thus, the suit is beyond the period of limitation. Shiv Dev Singh also executed two separate sale deeds on 25.2.1980 and 27.3.1980 in respect of land measuring 73 kanals 11 marlas in favour of Pritam Kaur, widow of Thakur Singh, who happened to be sister of Iqbal Singh, wife of Shiv Dev Singh. After the death of Pritam Kaur on 1.4.1990, the same devolved upon defendant Baljinder Singh, minor son of Jaspal Singh i.e. grandson Shiv Dev Singh by virtue of will dated 30.1.1984. The said sale deeds were disputed by Lt.Col. Rattan Singh in Civil Suit No.171 of 6.9.1994. Regular Second Appeal No.2549 of 2000 before the High Court arose out of said suit. In the said suit, the challenge is to the sale deeds dated 25.2.1980 and 27.3.1980 whereby Shiv Dev Singh has sold the land in favour of Pritam Kaur, his sister-in-law through his attorney Jaspal Singh. In the said suit it was alleged that the suit land was ancestral having been inherited from his forefathers and that the sale deeds were without legal necessity and thus null and void. It was alleged that the defendant, son of Jaspal Singh is in illegal and unauthorized possession of the suit land without any legal right for the last four years. The plaintiff alleged that the cause of action accrued in the year 1993 when the share of companypensation amount in respect of the land acquired by the Improvement Trust was number allowed to be withdrawn by the plaintiff at the instance of Iqbal Kaur, second wife of Shiv Dev Singh. The defendant in written statement pleaded that the sales in question are number in any way illegal, without companysideration and or void. Shiv Dev Singh was the sole owner of the suit land. The suit land remained in possession of Smt. Pritam Kaur as owner ever since the sale in her favour. It was alleged that cause of action, if any, arose to the plaintiff to challenge the alienation on the date of execution of the sale deeds. The learned trial Court dismissed the suit holding that the suit is barred by limitation governed by Article 109 of the Limitation Act as revenue record since Jamabandi 1983-84 Exhibit D-5 records the name of Pritam Kaur in the companyumn of ownership and cultivation. The said Jamabandi entry was recorded after mutation in favour of Pritam Kaur and was sanctioned in the year 1980. Shiv Dev Singh also executed a registered will dated 1.8.1969 in favour of his wife Iqbal Kaur. At the time of death of Shiv Dev Singh on 9.6.1988 he was owner of land measuring 107 kanals 13 Marlas. Lt. Col. Rattan Singh and his four sisters filed suit for declaration to claim share of the said land on the basis of natural succession and for joint possession in Civil Suit No.170 of 3.9.1994. Regular Second Appeal No.2548 of 2000 before the High Court arose out of the said suit. The said suit was for declaration and in the alternative for joint possession filed, inter alia, on the ground that they are owners of share of the land. It was averred that Shiv Dev Singh son of Sahib Singh was owner of 107 kanals 13 marlas of land which was inherited from his forefathers and it was ancestral. Shiv Dev Singh died on 9.6.1988 leaving behind plaintiffs and defendants Nos. 1 and 4 to 6 and Smt. Lakhwinder Kaur as his legal heirs. Lakhwinder Kaur died on 18.6.1993 leaving behind defendants Nos. 2 and 3 as her legal heirs. It was averred that defendant number1 has claimed a will in her favour. The deceased Shiv Dev Singh has number executed any valid will in favour of defendant No.1 and the alleged will is false and fabricated. It was further alleged that the plaintiffs have succeeded to the estate of Shiv Dev Singh to the extent of share and the defendants succeeded to the remaining share of his estate. Defendant No.1 relied upon will dated 1.8.1969 and claimed that she has become the exclusive owner in possession of the suit land. In evidence, the defendants produced son of the scribe and one of the attesting witnesses of the will. The trial Court held that the said will is proved to have been executed and is number surrounded by suspicious circumstances. One of the reasons for companying to such view by the trial Court was that Lt. Col. Rattan Singh has got 8 acres of land earlier and thus, the plaintiffs cannot make any grievance. However, in three separate appeals, the first Appellate Court reversed the findings recorded by the trial Court. The first Appellate Court held that Civil Suit No.171 and 172 of 1994 are within the period of limitation as cause of action arose to them when they were excluded from the Joint Hindu Family property in the year 1992. However, in respect of the will, the first Appellate Court held that it is surrounded by suspicious circumstances and companysequently decreed the suit holding that the estate of Shiv Dev Singh will vest on the companyarceners Rattan Singh, Jaspal Singh and Iqbal Kaur wife of Rattan Singh in equal shares and thus plaintiff Lt. Col. Rattan Singh would have 1/3rd share and the defendants Jaspal Singh and Iqbal Kaur would have 2/3rd share. Aggrieved by the findings recorded by the learned First Appellate Court, Second Appeals were filed. The plaintiffs also filed cross objections in each of the appeals claiming that the judgment and decree of the first Appellate Court granting 1/3rd share to Rattan Singh is incorrect as a matter of fact plaintiff Rattan Singh has share. In Second Appeals the findings of the Courts below that the land is joint Hindu Family companyarcenary property was number disputed. This fact was number disputed even before the learned trial Court. It was also number disputed that the sale deeds were executed without legal necessity and Shiv Dev Singh was number companypetent to gift the property. However, what was disputed is that the suit challenging alienation by way of gift in the year 1962 and sale deeds in the year 1980 by way of suit filed in the year 1994 were clearly beyond the period of limitation as prescribed under Article 109 of the Indian Limitation Act, 1963 in short the Limitation Act . The first Appellate Court had recorded a finding that the plaintiffs acquired knowledge of alienation by way of gift and sale in the year 1992 after Lt. Col. Rattan Singh retired from army. Learned companynsel for the appellants before the High Court disputed such finding as one based upon perversity. It was that it is impossible to believe that the gift deed executed in the year 1962 mutation of which was recorded in the year 1967 came to the numberice of the plaintiffs only in the year 1992 since plaintiff Lt. Col. Rattan Singh was visiting the village every year during his annual leave. However, since the first Appellate Court has believed the statement of the plaintiff to record a finding that he acquired the knowledge of alienation of the year 1992, it would a finding of fact. High Court was of the view that even if a different view was possible to be taken it would number entitle the High Court to take a different view in Second Appeal. The finding recorded by the first Appellate Court was held to have been arrived at after discussing the relevant oral and documentary evidence. Therefore, the High Court proceeded on the assumption that plaintiff Lt. Col. Rattan Singh came to know about the alienation in the year 1992. The High Court formulated following substantial questions of law for companysideration Whether the gift deed executed by Shiv Dev Singh in favour of son Jaspal Singh on 19.12.1962 is void or voidable? Whether the sale deeds dated 25.2.1980 and 27.3.1980 executed by Shiv Dev Singh in favour of Pritam Kaur, his sister in law, is void or voidable? Whether the suit for possession is within the period of limitation or such suit is barred by limitation in terms of Article 109 of the Limitation Act, 1963? Whether Will dated 1.8.1969 executed by deceased Shiv Dev Singh in favour of his wife Iqbal Kaur is proved to be duly executed and is number surrounded by suspicious circumstances? What will be the share of the plaintiffs in the suit property companysequent to the decision on the above questions of law? The genealogy as given below indicating the relationship between the parties was taken numbere of by the High Court. Shivdev Singh Harbans Kaur - Wife Iqbal Kaur wife Pritam Kaur Sister of Iqbal Rattan Gurbachan Manjit Kuldip Balwinder Jaspal Lakhwinder Sukhwinder Baljit Singh Kaur Kaur Kaur Kaur Singh Kaur Kaur Kaur R-1 in R-2 in R-2 in R-2 in R-2 in App.No since App.no.5 App.No. All C.A.No. C.A.No. C.A. C.A.No. 1 in C.A. deceased in C.A. No. 6 in C.A. Appeals 605 and 605 and 605 605 and No.605 605 and No. 605 and 601 of 601 of 601 of 601 of and App. App.No.4 App.No.5 in 2005 2005 2005 2005 No.6 in in C.A. C.A.601 of A.601 601 of 2005 Of 2005 2005 Baljinder Singh Gurtej Singh App. In C.A. App.No.2 in No.598/2005 in C.A.605 and App.No.1 in C.A No.601 of 2005 After analyzing the legal position and the applicable Hindu Law the High Court inter alia came to the following companyclusions In the judgment and decree passed by the learned first Appellate Court holding that Rattan Singh plaintiff will have 1/3rd share is number sustainable as the share of Shiv Dev Singh was excluded for the reason that Shiv Dev Singh during his life time sold 50-60 acres of land and, thus he ceased to have any share in the suit land. The said reasoning is number sustainable in law. The sale effected by Shiv Dev Singh during his life time will diminish the joint property of all the companyarceners. Such sale is number disputed and, therefore, such sale is for the benefit of companyarcenary body and, thus, it cannot be said that such sale was out of the share of Shiv Dev Singh alone. In terms of Explanation 1 to Section 6 of the Hindu Succession Act, 1956, the numberional partition is to be presumed immediately before the death of Shiv Dev Singh. Therefore, Shiv Dev Singh will have equal share within Rattan Singh, Jaspal Singh and Iqbal Kaur. Immediately before the death of Shiv Dev Singh, the companyarceners were Shiv Dev Singh himself, Rattan Singh plaintiff, Iqbal Kaur wife of Shiv Dev Singh , and Jaspal Singh. The married daughters from the first wife Harbans Kaur or from the second wife Iqbal Kaur were number companyarceners and, thus number entitled to any share. Thus, Shiv Dev Singh, Rattan Singh, Jaspal Singh and Iqbal Kaur shall have 1/4th share each as companyarcener. One fourth share of Shiv Dev Singh will fall equally to the share of one son and four daughters from his first wife Harbans Kaur one son and three daughters from the second wife Iqbal Kaur and Iqbal Kaur herself i.e. 1/4th share to each of the legal heirs of Shiv Dev Singh at the time of his death. It was inter alia held that the deed of gift purported to have been executed by Shivdev Singh in favour of Jaspal Singh was surrounded by mysterious circumstances and was number a genuine document. So far as the sale deeds in favour of Pritam Kaur are companycerned it was held that Article 65 of the Limitation Act was applicable. While the challenge in the first suit relating to the sale deeds was filed on 1.9.1994, the other suits challenging the gift purported to have been made on 19.12.1962 and the will purported to have been executed on 1.8.1969 were filed on 3.9.1994. In the present appeals, challenge to the High Courts judgment was on various grounds. We shall deal with them separately. So far as the appeal relating to the effect of the sale deed is companycerned, it was submitted that the High Court had made out a new case about applicability of Article 65 of the Limitation Act, while the trial Court and the first Appellate Court had proceeded on the basis that Article 109 was applicable. Similarly, the basic issue was whether the sale deed was void or voidable. So far as the appeal relating to validity of the gift made by Shivdev Singh is companycerned, according to learned companynsel, the relevant issue is whether he made the gift and if the answer to the question is in the affirmative, to what extent companyld he had made the gift. Here again the question was whether the gift was void or voidable. So far as the appeal relating to the validity of the Will is companycerned, it was submitted that the Courts below failed to numberice that there was numberhing suspicious about execution of the Will and the evidence on record clearly established that the Will had been executed out of free will and was number tainted in any way. In response, learned companynsel for the respondent submitted that the High Court has analysed the legal and the factual position in great detail and has rightly dismissed the appeals. The first issue in the appeals relates to the validity of the sale deeds. Articles 65 and 109 operate in different fields. The trial Court categorically found that Article 65 was number applicable and Article 109 was applicable to the facts of the case. The first Appellate Court in essence accepted that Article 109 was applicable, which provided for a period of 12 years to set aside the alienation effected by a father from the date when the alienee was in possession of the property. Though the first Appellate companyrt accepted that Article 109 was applicable, yet it was held that the spirit of Article 109 is that by taking over the possession of the land which is subject matter of the suit the alienee inter alia gives a numberice to the persons governed by Mitakashara School of Law to agitate their rights, if any. Otherwise, their remedy would become barred by limitation. It was held that the starting point of limitation would be somewhere in the year 1992 when he came to know of the alienation made by the father. Consequently, the cause of action accrued in the year 1992 when he gained knowledge about the existence and execution of the sale deeds. Therefore, the period of 12 years as laid down in Article 109 was to be reckoned from the year 1992 and since the suit had been filed in 1994 it is within the period of limitation. A bare perusal of the High Courts order it is seen that the High Court proceeded on the basis that the applicable Article is Article 65 and number Article 109. It is to be numbered that there was numberissue framed about applicability of Article 65. On the companytrary, the issue framed related to the applicability of Article 109. There was numberpleading by the plaintiff about applicability of Article 65. Even in the companynter affidavit filed before this Court in the companycerned Civil Appeal, the categorical stand is Article 110 is applicable. In para 8 of the companynter affidavit filed in Civil Appeal No.598 of 2005 it has been stated that the suit of the respondent plaintiff is within time under Article 110 and companynting from the date of knowledge, the suit filed is clearly within the period of limitation. The effect of Exhibit D-11 and the deed on which the appellants placed strong reliance has number been companysidered by the first Appellate Court and it reversed the findings of the trial Court. On the question of position relating to applicability of Article 109 there is practically numberdiscussion by the learned companynsel. It is, therefore, crystal clear that the High Court proceeded to decide the issue relating to period of limitation by making out a new case for which there was numberpleading and even numberquestion of law was framed. The question whether the sale deed was void or voidable has to be adjudicated in the light of principles set out by this Court in several decisions. We shall deal with this aspect in detail while companysidering the appeal relating to the gift. In Thamma Venkata Subbamma dead by Lrs. V. Thamma Rattamma and Others 1987 3 SCC 294 it was observed as follows There is a long catena of decisions holding that a gift by a companyarcener of his undivided interest in the companyarcenary property is void. It is number necessary to refer to all these decisions Instead, we may refer to the following statement of law in Maynes Hindu Law, eleventh Edn., Article 382 It is number equally well settled in all the Provinces that a gift or devise by a companyarcener in a Mitakshara family of his undivided interest is wholly invalidA companyarcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts. We may also refer to a passage from Mullas Hindu Law, fifteenth edn., Article 258, which is as follows Gift of undivided interest. - 1 According to the Mitakshara law as applied in all the States, numbercoparcener can dispose of his undivided interest in companyarcenary property by gift. Such transaction being void altogether there is numberestoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the companysent of the other companyarceners. It is submitted by Mr. P. P. Rao, learned companynsel appearing on behalf of the respondents, that numberreason has been given in any of the above decisions why a companyarcener is number entitled to alienate his undivided interest in the companyarcenary property by way of gift. The reason is, however, obvious. It has been already stated that an individual member of the joint Hindu family has numberdefinite share in the companyarcenary property. By an alienation of his undivided interest in the companyarcenary property, a companyarcener cannot deprive the other companyarceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the companyarcenary property. It is true that there is numberspecific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated. It is, however, a settled law that a companyarcenary can make a gift of his undivided interest in the companyarcenary property to another companyarcener or to a stranger with the prior companysent of all other companyarceners. Such a gift would be quite legal and valid. We may also refer to a passage from Mullas Hindu Law, Seventeenth Edn., Article 258 , which is as follows Gift of undivided interest- 1 According to Mitakshara law as applied in all the States, numbercoparcener can dispose of his undivided interest in companyarenary property by gift. Such transaction being void altogether there is numberestoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the companysent of the other companyarcener. In Maynes Hindu Law, XIV Edn. It has been numbered as follows Gifts of affection- The fathers power to make gifts through affection within reasonable limits of ancestral movable property has been fully recognized. In Ramalinga v Narayana 1922 IA 168 the Privy Council held that the father has undoubtedly the power under the Hindu Law of making within reasonable limits, gifts of movable property to a daughter. By Will- But such gifts through affection of joint family property when they are by will, are invalid, because the right of the companyarceners vests by survivorship at the moment of the testators death, and there is accordingly numberhing upon which the will can operate. In Subbarami v. Ramamma 1920 43 Mad 824 the Madras High Court held that a will made by a Hindu father bequeathing certain family properties for the maintenance of his wife was invalid as against his infant son through it would have been a proper provision if made by him, during his lifetime. This may be in a sense right. There is however numbercompelling logic in number regarding wills as gifts to take effect upon death at least as to the property which they can transfer and the persons to whom it can be transferred. Convenience would seem rather to point to the extension to the sphere of Hindu Law of the general principle of jurisprudence that what a man can give by act inter vivos, he can give by will. In view of the decision in Venkata Subbammas case supra , the decision of the High Court so far the gift is companycerned, does number warrant any interference. So far as the question whether the gift is void or voidable much depends on the factual scenario. The distinction between void or voidable is summarized as follows De Smith, Woolf and Jowell in their treatise Judicial Review of Administrative Action, 5th, para 5-044, have summarized the companycept of void and voidable as follows Behind the simple dichotomy of void and voidable acts invalid and valid until declared to be invalid lurk terminological and companyceptual problems of excruciating companyplexity. The problems arose from the premise that if an act, order or decision is ultra vires in the sense of outside jurisdiction, it was said to be invalid, or null and void. If it is intra vires it was, of companyrse, valid. If it is flawed by an error perpetrated within the area of authority or jurisdiction, it was usually said to be voidable that is, valid till set aside on appeal or in the past quashed by certiorari for error of law on the face of the record. Clive Lewis in his work Judicial Remedies in Public Law at p.131 has explained the expressions void and voidable as follows A challenge to the validity of an act may be by direct action or by way of companylateral or indirect challenge. A direct action is one where the principal purpose of the action is to establish the invalidity. This will usually be by way of an application for judicial review or by use of any statutory mechanism for appeal or review. Collateral challenges arise when the invalidity is raised in the companyrse of some other proceedings, the purpose of which is number to establish invalidity but where questions of validity become relevant. In Sunil Kumar and Anr. v. Ram Parkash and Ors. AIR 1988 SC 576 it was numbered in paras 23 and 24 as follows The managing member or karta has number only the power to manage but also power to alienate joint family property. The alienation may be either for family necessity or for the benefit of the estate. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors. The oft quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad v. Mt. Babooee, 1856 6 I.A. 393. There it was observed at p. 423 1 The power of the manager for an infant heir to charge an estate number his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate. This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later. Any other manager however, is number having anything less than those stated in the said case. Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or. other companyarcener who manages the joint family estate. Remedies against alienations Although the power of disposition of joint family property has been companyceded to the manager of joint Hindu family for the reasons aforesaid, the law raises numberpresumption as to the validity of his transactions. His acts companyld be questioned in the Court of law. The other members of the family have a right to have the transaction declared void, if number justified. When an alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity. It would be for the alienee to prove that he did all that was reasonable to satisfy himself as to the existence of such necessity. If the alienation is found to be unjustified, then it would be declared void. Such alienations would be void except to the extent of managers share in Madras, Bombay and Central Provinces. The purchaser companyld get only the managers share. But in other provinces, the purchaser would number get even that much. The entire alienation would be void. Maynes Hindu Law 11th ed. para 396. In Sadasivam v. K. Doraisamy AIR 1996 SC 1724 it was found that when the father has executed sale deed in favour of a near relative and the intention to repay debt or legal necessity has number been proved as a sham transaction. In Words and Phrases by Justice R.P. Sethi the expression void and voidable read as under Void- Blacks Law Dictionary gives the meaning of the word void as having different nuances in different companynotations. One of them is of companyrse null or having numberlegal force or binding effect. And the other is unable in law, to support the purpose for which it was intended. After referring to the nuances between void and voidable the lexicographer pointed out the following The word void in its strictest sense, means that which has numberforce and effect, is without legal efficacy, is incapable of being enforced by law, or has numberlegal or binding force, but frequently the word is used and companystrued as having the more liberal meaning of voidable. The word void is used in statute in the sense of utterly void so as to be incapable of ratification, and also in the sense of voidable and resort must be had to the rules of companystruction in many cases to determine in which sense the legislature intended to use it. An act or companytract neither wrong in itself number against public policy, which has been declared void by statute for the protection or benefit of a certain party, or class of parties, is voidable only. Pankan Mehra and Anr. v. State of Maharashtra and Ors. 2000 2 SCC 756 . Per Fazal Ali, J- The meaning of the word void is stated in Blacks Law Dictionary 3rd Edn. to be as follows Null and void ineffectual nugatory having numberlegal force or binding effect unable in law to support the purpose for which it was intended nugatory and ineffectual so that numberhing can cure it number valid. Keshavan Madhava Menon v. State of Bombay 1951 SCR 228 . The expression void has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same numberdeclaration is necessary, law does number take any numberice of the same and it can be disregarded in companylateral proceeding or otherwise. Judicial Review of Administration Action, 5th Edn., para 5-044 See also Judicial Remedies in Public Law at page 131 Dhurandhar Prasad Singh v. Jai Prakash University and Ors. 2001 6 SCC 534 The other type of void act, e.g. may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is companycerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate preceding the transaction becomes void from the very beginning. Another type of void act may be one, which is number a nullity, but for avoiding the same, a declaration has to be made. See Government of Orissa v Ashok Transport Agency and Ors 2002 9 SCC 28 The meaning to be given to the word void in Article 13 of the Constitution is numberlonger res integra, for the matter stands companycluded by the majority decision of the Court in Keshavan Madhava Menon v. The State of Bombay 1951 SCR 228. We have to apply the ratio decidendi in that case to the facts of the present case. The impugned Act was a existing law at the time when the Constitution came into force. That existing law imposed on the exercise of the right guaranteed in the citizens of the India by Article 19 1 g restrictions which companyld number be justified as reasonable under clause 6 as it then stood and companysequently under Article 13 1 that existing Law became void to the extent of such inconsistency. As explained in Keshavan Madhava Menons case supra the Law became void in toto or for all purposes or for all times or for all persons but only to the extent of such inconsistency, that is to say, to the extent it became inconsistent with the provisions of Part III which companyferred the fundamental rights on the citizens. It did number become void independently of the existence of the rights guaranteed by Part III. See Bhikaji Narain Dhakras and Ors. v. The State of Madhya Pradesh and Anr. 1955 2 SCR 589 . The word void has a relative rather than an absolute meaning. It only companyveys the idea that the order is invalid or illegal. In Halsburys Laws of England, 4th Edn. Reissue Vol. 1 1 in para 26, p.31 it is stated thus If an act of decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes and it has been said that there are numberdegrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a companyrt of companypetent jurisdiction. Until its validity is challenged, its legality is preserved. See State of Kerala v. K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil dead and ors. 1996 1 SCC 435 . Voidable act is that which is a good act unless avoided, e.g. if a suit is filed for a declaration that a document is fraudulent, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is oblige to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and number any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable. Government of Orissa v. Ashok Transport Agency and Ors. 2002 9 SCC 28 . So far as the appeal relating to Will is companycerned, it is to be numbered that the Courts below including the High Court have companye to the companyclusion that its execution is surrounded by suspicious circumstances. The defendants have relied upon will dated 1.8.1969 executed by Shiv Dev Singh in favour of his wife Iqbal Kaur. Will Ex.D-1 is sought to be proved by DW-1 Sham Lal son of Jitender Nath scribe of the Will and DW-2 Surinder Nath Vohra, the attesting witness DW-1 Sham Lal has identified the handwriting of his father and deposed that his father died in the year 1993. DW-2 Surinder Nath Vohra has deposed that the Will was executed by Shiv Dev Singh at Kharar in his presence. At that time, Shiv Dev Singh was in sound disposing mind. It has companye on record that Dharam Singh, husband of Lakhwinder Kaur daughter of Shiv Dev Singh was residing at Chandigarh. Shiv Dev Singh used to stay with Dharam Singh when he used to visit Chandigarh in companynection with litigation. However, the Will was number executed and registered at Chandigarh but at Kharar. Surinder Nath Vohra is number known to the testator but attested the Will at the asking of Dharam Singh. Still further, in Will Exhibit D-1 there is numberreference about Rattan Singh who is numbere else but real son of the testator. The first Appellate Court found that the reasoning given by the learned trial Court that Shiv Dev Singh gave 8 acres of land to Rattan Singh and, therefore, it was number necessary for him to assign any reason was found to be incorrect because the said land measuring 8 acres came to him from his grand father as he was born after 4 daughters. The first Appellate Court found that even if Shiv Dev Singh had been given 8 acres, there is numberreason as to why such mention was number made in the Will. Consequently, the first Appellate Court returned a finding that the execution of the Will Exhibit D-1 is number proved and its execution is surrounded by suspicious circumstances. The finding recorded about the genuineness of the Will is essentially factual.

Judgments - Regina v. London Borough of Barnet (Respondents) ex parte G (FC) (Appellant) Regina v. London Borough of Lambeth (Respondents) ex parte W (FC) (Appellant) HOUSE OF LORDS SESSION 2002-03 [2003] UKHL 57 on appeal from: [2001] EWCA Admin 540 [2002] EWCA Civ 613 [2002] EWCA Civ 1624 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Regina v. London Borough of Barnet (Respondents) ex parte G (FC) (Appellant) Regina v. London Borough of Lambeth (Respondents) ex parte W (FC) (Appellant) Regina v. London Borough of Lambeth (Respondents) ex parte A (FC) (Appellant) ON THURSDAY 23 OCTOBER 2003 The Appellate Committee comprised: Lord Nicholls of Birkenhead Lord Steyn Lord Hope of Craighead Lord Millett Lord Scott of Foscote HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Regina v. London Borough of Barnet (Respondents) ex parte G (FC) (Appellant) Regina v. London Borough of Lambeth (Respondents) ex parte W (FC) (Appellant) Regina v. London Borough of Lambeth (Respondents) ex parte A (FC) (Appellant) [2003] UKHL 57 LORD NICHOLLS OF BIRKENHEAD My Lords,   These three appeals concern the responsibilities of local authorities for the accommodation of children who are in need. The first and principal legal issue relates to the nature and extent of the duty imposed on local authorities by section 17 of the Children Act 1989. The claimants' case is that section 17(1) requires a local authority to assess the needs of a child who is in need and to meet his needs when they have been assessed. The defendant local authorities refute both limbs of this claim. A second issue is whether a local authority may insist on providing accommodation for a child alone, as distinct from a child and his mother, when a child is in need of accommodation and it would cost no more to provide accommodation for both of them.   In two of the cases the accommodation problems of the claimants have been resolved since the proceedings started. In the third case, involving two disabled children, there is an issue between the parties on the quality of the accommodation currently provided for the children and their family. I must first outline the facts and history of the three cases. In each case the claimant was a mother as a single parent. The three claimants are G, A and W. The three cases   The first case, in chronological sequence is G's case: R (on the application of G) v London Borough of Barnet. G is a person from abroad who, until recently, was not eligible for housing assistance. She is a Dutch national of Somali origin. She has a son, born in May 1999. She entered this country on a Dutch passport. She claimed she left the Netherlands because of social ostracism encountered there in the Somali community on account of her child's illegitimacy, and that she came to this country to look for the child's father. An application for income support, and an application to the London Borough of Barnet for assistance with housing, were refused because G did not satisfy the habitual residence test. She then sought assistance from Barnet council as the local social services authority. The council assessed the child's needs as best served by the return of both mother and child to Holland where they were entitled at once to accommodation and other benefits. The council did not accept the mother's account of her reasons for coming to London. By a decision letter of 9 October 2000 the council told her that her weekly payments for accommodation and subsistence would stop in a week's time.   G applied for judicial review of this decision. It was common ground she was suitable to look after her boy, and that it was not in the boy's best interests to be removed from her care. It was also common ground that if, as happened, the mother refused to return to the Netherlands, the council intended to place the child with foster parents, and to provide no accommodation for the mother. In the event interim relief was granted in the judicial review proceedings. On 18 January 2001 Hooper J quashed the decision of 9 October 2000: see [2000] EWHC Admin 5, (2001) 4 CCLR 33. The child was in need, and it was in the best interests of the child to live with his mother. Given the duties imposed on the local authority by section 17(1) of the Children Act 1989, and the powers granted to it by section 23, the local authority 'has no alternative' but to place the child with his mother assuming it is reasonably practicable to do so. This was so even though the mother was, in the view of the local authority, acting unreasonably: see para 18.   The council appealed. On 11 April 2001 the Court of Appeal, comprising Ward, May and Rix LJJ, allowed the appeal and dismissed the judicial review application: [2001] EWCA Civ 540, (2001) 4 CCLR 128. Ward LJ said the duty imposed by section 17(1) was met by providing financial assistance for the return of the mother and child to Holland. The local authority did not act unlawfully in refusing to provide assistance in cash or in kind to assist in the provision of accommodation for the mother and her child. Section 17(3) and (6) imposed no such duty on the local authority. Section 20 imposed a duty to provide accommodation for the child, not for the parent and the child.   The second appeal is A's case: R (on the application of A) v London Borough of Lambeth. This concerns a family who have been housed but whose accommodation is not suitable for the children's needs. A is the mother of three children. Unhappily two of the children, aged 9 and 7, are autistic. They have severe learning difficulties and require constant supervision. The family's accommodation is a ground floor two bedroom local authority flat, rented from the London Borough of Lambeth. The flat has no garden or outside play area. The two disabled children are prone to run out of the front door and climb through the windows. This is dangerous because the flat is very close to the road. The accommodation poses severe disadvantages to the children's health and wellbeing. Core assessments of the needs of the children under the Children Act 1989 were to the effect that the family need to be re-housed away from the road, to have a safe outside play area and to have four bedrooms   A challenge by the mother to the decision of the council as housing authority was abandoned. The mother now seeks, against the council as local social services authority, a mandatory order compelling the council to find and provide suitable accommodation in line with the children's assessed needs. Both the judge at first instance, Scott Baker J, and the Court of Appeal, comprising Chadwick and Laws LJJ and Sir Philip Otton, held the court has no power to intervene even though, even in the words of Scott Baker J, the family have been 'less than satisfactorily treated' by Lambeth council: [2001] EWCA Civ 1624, (2001) 4 CCLR 486.   The third case is W's case: R (on the application of W) v London Borough of Lambeth. W had become homeless intentionally within the meaning of that expression in the homelessness legislation. She has two children, aged 16 and 7. She sought assistance for accommodation from the London Borough of Lambeth as local social services authority. This was refused. Maurice Kay J dismissed an application for judicial review of the council's decision. The decision of the Court of Appeal in A's case obliged him to do so. By a further assessment, dated 9 April 2002, the council decided it should explore placing the children with extended family members as a short term measure while the mother sought alternative accommodation. Should the need arise provision could be made for the children alone under section 20 of the Children Act 1989.   On appeal the Court of Appeal, comprising Brooke, Laws and Keene LJJ, dismissed an appeal in respect of the council's decision of 9 April 2002: see [2002] EWCA Civ 613, [2002] 2 All ER 901. The court considered there were not sufficient grounds for interfering with the council's decision. Section 17 imposes a 'target' duty on the council, but in relation to individual children the council only has a power. The council had given intelligible and adequate reasons why it was not willing to exercise its power in this case, given all the other pressures on its resources. Where all else failed the local authority has power to help under section 17, but it is entitled, if it sees fit, to reserve this power for extreme cases which the instant case had not yet become: [2002] 2 All ER 901, 926-927, para 83.     Allocation of resources   Behind the legal questions arising in these appeals is the seemingly intractable problem of local authorities' lack of resources. Local authorities discharge a wide range of functions, from education to housing, upkeep of roads to disposal of waste. All these activities call for money, of which there is never enough to go round. Often there is also a shortage, sometimes acute, of other resources such as trained staff.   The financial resources of local authorities are finite. The scope for local authorities to increase the amount of their revenue is strictly limited. So, year by year, they must decide what priority to give to the multifarious competing demands on their limited resources. They have to decide which needs are the most urgent and pressing. The more money they allocate for one purpose the less they have to spend on another. In principle, this decision on priorities is entrusted to the local authorities themselves. In respect of decisions such as these council members are accountable to the local electorate.   The ability of a local authority to decide how its limited resources are best spent in its area is displaced when the authority is discharging a statutory duty as distinct from exercising a power. A local authority is obliged to comply with a statutory duty regardless of whether, left to itself, it would prefer to spend its money on some other purpose. A power need not be exercised, but a duty must be discharged. That is the nature of a duty. That is the underlying purpose for which duties are imposed on local authorities. They leave the authority with no choice.   The extent to which a duty precludes a local authority from ordering its expenditure priorities for itself varies from one duty to another. The governing consideration is the proper interpretation of the statute in question. But identifying the precise content of a statutory duty in this respect is not always easy. This is perhaps especially so in the field of social welfare, where local authorities are required to provide services for those who need them. As a general proposition, the more specific and precise the duty the more readily the statute may be interpreted as imposing an obligation of an absolute character. Conversely, the broader and more general the terms of the duty, the more readily the statute may be construed as affording scope for a local authority to take into account matters such as cost when deciding how best to perform the duty in its own area. In such cases the local authority may have a wide measure of freedom over what steps to take in pursuance of its duty.   Towards one edge of this spectrum are instances such as section 23(1) of the Children Act 1989. Under this subsection it is the duty of a local authority looking after a child to provide accommodation for him while he is in the authority's care. This is a duty of an absolute character. An example of the opposite edge of the spectrum, taken from the field of education, is the broad duty imposed on a local education authority by section 8 of the Education Act 1944, now section 14 of the Education Act 1996, 'to secure that there shall be available for their area sufficient schools .. for providing primary education'. In R v Inner London Education Authority, Ex p Ali (1990) 2 Admin LR 822, 828, Woolf LJ described this as a 'target duty'.   Often the duty is expressed in more specific terms than this, but the terms themselves give the local authority an area of discretion. Paragraph 9 of schedule 2 of the Children Act 1989 imposes upon every local authority a duty to provide such family centres 'as they consider appropriate' in relation to children in need within their area. Another form of words apt to give considerable latitude to a local authority is where the duty is 'to take reasonable steps' to achieve a stated object. Paragraph 4 of schedule 2 of the Children Act 1989 is an illustration of this. A local authority is required to take reasonable steps to prevent children within its area suffering ill-treatment or neglect. Again, although not explicitly stated, a statute may implicitly afford a local authority considerable latitude. Section 18(1) of the Children Act 1989 provides that every local authority shall provide such day care for pre-school children in need within its area 'as is appropriate'. In deciding what is appropriate the local authority may properly take into account a wide range of matters including cost.   The primary question raised by these appeals is the proper interpretation, in this context, of section 17(1) of the Children Act 1989.     Part III of the Children Act 1989   Part III of the Children Act 1989, comprising sections 17 to 30, concerns the provision of local support for children and their families. Before the passing of this Act child care law was widely criticised as confusing, unnecessarily complex and in places unjust. The responsibilities of local authority social service departments towards families with children were set out in two different sets of legislation. Child care law provided for children to be supported within the family in certain circumstances. Thus, section 1 of the Child Care Act 1980 imposed on local authorities the duty to make available such assistance as might promote the welfare of children by diminishing the need to receive children into care or to bring them before a juvenile court. Section 2 of the same Act imposed a duty on local authorities to receive a child into voluntary care in certain circumstances. Quite separate from this child care legislation, health and welfare legislation made provision for services for children as part of local authorities' responsibilities for particular groups of people of all ages, such as those who were mentally handicapped or physically disabled. The principal statutes were the National Health Service Act 1977, the National Assistance Act 1948 and the Chronically Sick and Disabled Persons Act 1970.   One object of Part III of the Children Act 1989 was to unify these two sets of legislation. The intention of the government was to ensure that in all cases the children concerned should receive the standard of care and protection and professional review appropriate to their needs. Local authorities were to be given a broad 'umbrella' power to provide services to promote the care and upbringing of children. The government white paper, 'The Law on Child Care and Family Services' (1987) (Cm 62), explained that broadly speaking all existing powers and duties to provide services to children were to be maintained and amalgamated, sometimes with modifications. This would involve the amalgamation of sections 1 and 2 of the Child Care Act 1980, and the addition of provisions from the health and welfare legislation: see chapter 2, paras 14 to 19.   I turn to the relevant legislative provisions. Section 17 of the Children Act 1989 is the first section in a small group of sections concerning provision of services for children 'in need' and their families. A child is taken to be in need if he is disabled or if, without the provision of local authority services, he is unlikely to achieve or maintain 'a reasonable standard of health or development' or his health or development is 'likely to be significantly impaired': section 17(10). A child without accommodation is a child in need: R v Northavon District Council, Ex p Smith [1994] 2 AC 402, 406, per Lord Templeman. Section 17(11) defines disability, 'development' and 'health' in wide terms.   Section 17(1) prescribes the 'general duty' of local authorities regarding children in need. The general duty of every local authority is to provide a range and level of services appropriate to the needs of such children: 'It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)- (a)  to safeguard and promote the welfare of children within their area who are in need; and (b)  so far as is consistent with that duty, to promote the upbringing of such children by their families,     by providing a range and level of services appropriate to those children's needs.'   This general duty is augmented by a motley collection of 'specific duties and powers' set out in Part I of schedule 2: section 17(2). Local authorities are given these specific duties and powers principally for the purpose of facilitating the discharge of the general duty imposed by section 17(1). Some of these specific duties and powers are general in their impact on children, such as the duty to produce and keep under review plans for the provision of children's services under Part III of the Act (paragraph 1A). Others relate to the circumstances of a particular child. Two examples will suffice, one of a power, the other of a duty. A local authority is empowered to assess the needs of a child in need under the Children Act 1989 at the same time as any assessment of his needs is made under other enactments, such as the Chronically Sick and Disabled Persons Act 1970 (paragraph 3). A local authority is under a duty to take such steps as are reasonably practicable to enable a child who is not living with his family to live with them or promote contact between them if that is necessary to safeguard or promote his welfare (paragraph 10).   Two other provisions in section 17 call for mention. Both are enabling powers in respect of any service provided by an authority in the exercise of functions conferred on the authority by section 17. If provided with a view to safeguarding or promoting the child's welfare, the service may be provided for the family of a particular child in need, or any member of his family: section 17(3). The service may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash: section 17(6). The reference to accommodation in this subsection was inserted by section 116 of the Adoption and Children Act 2002 to lay at rest doubts arising from the Court of Appeal decision in A's case.   Section 17 covers a wide range of services. Section 20 is focused more narrowly. It is concerned specifically with the accommodation needs of children in need. Section 20 obliges every local authority to provide accommodation for children in need who appear to need accommodation: '(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of - (a)  there being no person who has parental responsibility for him; (b)  his being lost or having been abandoned; or (c)  the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.'   'Prevented … for whatever reason' in paragraph (c) is to be interpreted widely. It includes a case where the person caring for the child is intentionally homeless. A child is not to be visited with the shortcomings of his parents. A similarly wide interpretation was given to the comparable provision in section 1 of the Children Act 1948 the predecessor to section 2(1) of the Child Care Act 1980: see Attorney General ex rel Tilley v Wandsworth London Borough Council [1981] 1 WLR 854.     Section 17(1) of the Children Act 1989   I turn to the interpretation of section 17(1). Section 17(1) is not just a statement of general principle, important though it is in that regard. Nor does it merely confer a new or enlarged function on local authorities. It imposes a duty. It imposes a duty expressed to be additional to the other duties imposed by Part III of the Children Act 1989. By definition, the additional obligation thus imposed on local authorities is enforceable by the court in appropriate circumstances on the application of a person with sufficient interest. The crucial issue is to identify the content of this additional duty.   At first sight section 17(1) does not seem to impose a duty in respect of the particular needs of an individual child. The duty is expressed in general, overall terms regarding the collective needs of children in need in the local authority's area. It is not expressed by reference to the needs of any one child. This generality, however, is not conclusive. The generality of an obligation regarding children in a local authority's area is not of itself inconsistent with the obligation being a duty in relation to the needs of individual children in the area. An obligation in respect of the general may include an obligation in respect of the particular. A duty in respect of an entire class or group as a whole may include a duty in respect of the individual members of the class or group. It all depends upon the language read in its context.   So I turn to the language of section 17(1). The starting point is to note the statutory description of the duty as a 'general' duty. Read in context, this description is not, of itself, of much value as a pointer on the issue now under consideration. This description is used by way of contrast to the 'specific' duties and powers mentioned in section 17(2). The latter duties and powers are specific because they relate to particular, limited aspects of the general duty imposed by section 17(1). The purpose of section 17(1) is wider. The purpose is to set out, at the very forefront of Part III and by way of contrast to the specific duties and powers, a primary additional duty of a more comprehensive character.   Next, the nature of the general duty imposed on a local authority by section 17(1): this is twofold. The duty is to safeguard and promote the welfare of children within its area who are in need, and to promote the upbringing of such children by their families. 'Safeguard' and 'promote' are broad terms; necessarily so, in the context of the welfare of a child. There is nothing in the use of these terms to suggest the duty is not a duty in respect of each child within the local authority's area who is in need. The phrase 'children within their area who are in need' refers to all the children in need within the local authority's area. But the duty to promote the welfare and upbringing of all such children makes little sense unless it is a duty in respect of the welfare and upbringing of each such child. Indeed, if this were not so section 17(1) would be a poor sort of additional general duty. Section 22 is another example of a duty, described as a general duty, to safeguard and promote the welfare of children. A local authority 'looking after any child' is obliged 'to safeguard and promote his welfare'. It cannot be doubted that this duty under section 22(3), although described as a general duty and although expressed in broad terms, is a duty which relates to the individual child and is enforceable as such.   Section 17(1) then proceeds to state the means by which this duty is to be discharged: 'by providing a range and level of services appropriate to those children's needs.' This, again, is the language of generality. But, here also, the language could hardly be otherwise, given the comprehensive nature of the obligation imposed. Section 17(1) deliberately eschews references to particular types of services. Section 17(1) is intended to be wide in its scope because the needs of children vary widely. So local authorities must provide an appropriate range and level of services, whatever those services may be. Section 17(3) and (6) make clear that the types of services mentioned in those two subsections are among the services a local authority may provide in carrying out its duty under section 17.   Thus far I am broadly in agreement with the interpretation urged by the claimants. But I stop short of the conclusion submitted by them. In my view section 17(1) does not impose an absolute, or near absolute, duty on local authorities to meet the specific needs of every child who is in need, whatever those needs may be. There is no place for absolutes in such a wide-ranging duty regarding the welfare of children. Nor would that be consistent with the qualified nature of some of the specific duties imposed in Part I of schedule 2. The 'needs' of a child for services is itself an inherently imprecise concept. 'Needs' are open-ended. Some limit can be placed on what are to be regarded as the needs of a child for the purposes of this legislation if the legislation is read, as it should be, as a reference to reasonable needs. Even so, this leaves much scope for differing views. Questions of degree will often arise. Likewise, the statutory obligation to provide a range and level of services 'appropriate' to the needs of children in need gives a local authority considerable latitude in determining what is 'appropriate' in an individual case in all the circumstances. In some cases the type and level of service provided may properly fall short of meeting all the child's needs as assessed. The extent of the latitude in each case depends upon the circumstances, prominent among which are the nature of the service in question and the nature and extent of the needs of the child. Cost is also an element which may properly be taken into account in deciding what is 'appropriate' in a particular case. The extent to which cost, and hence the resources of a local authority, may be taken into account depends upon all the circumstances including how basic is the assessed need, the ease or difficulty with which it may be met, and the consequences of not meeting it. In a word, despite this latitude the council must act reasonably.   The degree of latitude thus afforded to a local authority may make it difficult for a claimant to establish a breach of this duty. But this is not a sufficient reason for denying the existence of the duty. Nor are the default powers of the Secretary of State under section 84 of the Children Act 1989 an adequate substitute for the ability to have recourse to the court. These default powers cannot be expected to provide an adequate remedy in individual cases.   I am fortified in my view that section 17 imposes a duty in respect of the individual child by noting the consequences of the alternative approach. On the local authorities' approach, since section 17(1) does not impose a duty in relation to an individual child, it follows that a local authority is not under a duty to assess the needs of a child in need under section 17(1). That cannot be right. That would go far to stultify the whole purpose of Part III of the Children Act 1989. The first step towards safeguarding and promoting the welfare of a child in need by providing services for him and his family is to identify the child's need for those services. It is implicit in section 17(1) that a local authority will take reasonable steps to assess, for the purposes of the Act, the needs of any child in its area who appears to be in need. Failure to carry out this duty may attract a mandatory order in an appropriate case, as occurred in R (on the application of AB and SB) v Nottinghamshire County Council [2001] EWHC Admin 235 (2001) 4 CCLR 295. Richards J ordered a local authority to carry out a full assessment of a child's needs in accordance with the guidance given by the Secretary of State in 'Framework for the Assessment of Children in Need and their Families' (March 2000).   Where does such an assessment lead? According to the local authorities, nowhere as a matter of legal obligation, so far as an individual child is concerned beyond, presumably, an obligation on the part of the authority to consider the assessment and decide whether to exercise any of its statutory powers. That would be a surprisingly weak outcome. That would represent a lacuna in the law relating to children in need. I cannot think Parliament intended this should be so. I prefer a different approach. If section 17(1) is apt to impose a duty on a local authority to take reasonable steps to assess the needs of an individual child in need, it is equally apt to impose the duty mentioned above to provide a range and level of services 'appropriate' to those needs.   In several cases it has been assumed, or conceded, that section 17(1) imposes an obligation in respect of the needs of an individual child; for instance, in R v Tower Hamlets London Borough Council, Ex p Bradford (1997) 1 CCLR 294, 301, per Kay J, and R v Wigan Metropolitan Borough Council, Ex p Tammadge (1998) 1 CCLR 581, 584, per Forbes J. In other cases, where the point has been argued, the contrary view has been preferred. These cases culminated in the decision of the Court of Appeal in the instant case involving A and her two disabled children: R (on the application of A) v Lambeth London Borough Council (2001) 4 CCLR 486. The Court of Appeal held that an assessment of needs under section 17 does not give rise to a duty enforceable at the suit of an individual, although a decision by a local authority not to exercise its powers under section 17 is open to judicial review on ordinary principles. For the reasons I have given I respectfully consider that the responsibilities of local authorities under section 17(1), although far from absolute, are of a higher order than this.   I should add a further comment regarding the assessment of needs under section 17. In R v Gloucestershire County Council, Ex p Barry [1997] AC 584 a question about the relevance of cost arose in the context of a duty to make certain arrangements where a local authority is satisfied this is 'necessary' in order to meet the 'needs' of disabled persons. The majority of the House held that on the proper interpretation of section 2(1) of the Chronically Sick and Disabled Persons Act 1970 the local authority is entitled to have regard to its resources when performing this duty. Whether, under that section, resources should be taken into account when assessing 'needs' as distinct from when the authority is deciding whether it is 'necessary' to meet those needs, is not a matter which arose in Barry's case. In Barry's case the local authority had merged the two stages into one by providing services in accordance with elaborate 'eligibility criteria'. What was in issue was whether the authority could lawfully raise the eligibility criteria because of shortage of money. Later cases, such as R v Sefton Metropolitan Borough Council, Ex p Help the Aged (1997) 1 CCLR 57 and R v East Sussex County Council, Ex p Tandy [1998] AC 714, show it is desirable to keep these two stages separate. Ordinarily cost, where relevant, will be a matter to be taken into account by a local authority when considering its response to an assessed need rather than at the stage of assessment. That is the position under section 17(1) of the Children Act 1989.     Accommodating a child with his parents   I now turn to the second principal issue. This concerns one particular facet of the problem of providing accommodation for families with children. This problem arises in G's case R (on the application of G) v London Borough of Barnet) [2001] EWCA Civ 540, (2001) 4 CCLR 128) and W's case (R (on the application of W) v London Borough of Lambeth [2002] EWCA Civ 613, [2002] 2 All ER 901). These two appeals raise a question solely of principle. As already noted, the accommodation problems of these claimants have been resolved since the proceedings started. The appeals are being pursued because the question of principle is of everyday importance. The question concerns the circumstances in which a local social services authority may be obliged to provide accommodation and subsistence for a child together with his mother, as distinct from the child alone, under sections 17 or 23 of the Children Act 1989.   In the cases of G and W the local authority was minded, if necessary, to provide accommodation for the children under section 20 of the Children Act 1989 but not their mothers. This raises an acutely difficult problem. Before considering this I must first mention, and reject, a point made by Mr Howell QC based on section 23 of the Children Act 1989. Mr Howell submitted that if a local authority provides a child in need with accommodation in fulfilment of its duty under section 20, the local authority is under a duty to make arrangements to enable the child to live with his mother. If necessary, the local authority must provide accommodation for the mother as well as the child. The source of this duty, he submitted, is section 23(6) of the Act.   I cannot accept this submission. Section 23(6) is one of the provisions in section 23 concerned with the way a local authority is to discharge its obligation to provide accommodation for a child whom it is looking after. The section is not concerned with providing accommodation for anyone else. The relevant effect of section 23(6) is to require a local authority looking after a child to 'make arrangements to enable him to live' with a parent or other specified person unless that would not be reasonably practicable or consistent with his welfare. This provision assumes the mother or father of the child already has accommodation which the child may enter and share so as to live there with his parent. Similarly with the other persons, such as relatives and friends, mentioned in paragraphs (a) and (b) of section 23(6). Section 23(6) does not impose an obligation on a local authority to provide accommodation for the parent or other persons. It is concerned with placement, not housing. Section 23 does not assist the claimants. On this I agree with the decision of the Court of Appeal in R (on the application of G) v Barnet London Borough Council [2001] EWCA Civ 540, (2001) 4 CCLR 128.   The setting in which the problem now under consideration arises is this. In the ordinary course the essential accommodation needs of most families with children are met, where necessary, under the housing legislation. Part VI of the Housing Act 1996 makes provision regarding the allocation of housing accommodation. Every local housing authority must have a scheme for determining priorities in the allocation of housing accommodation. The scheme must give reasonable preference to, among others, people living in unsatisfactory housing conditions and families with dependent children. Housing accommodation must be allocated only in accordance with the housing authority's published scheme (section 167).   Part VII of the Housing Act 1996 makes provision for cases of homelessness. A local housing authority must make inquiries into cases of homelessness or threatened homelessness (section 184). The authority must provide accommodation on an interim basis (section 188) and thereafter (section 193) if the applicant is homeless, eligible for assistance and has a priority need. A person living with dependent children has a priority need (section 189).   Certain classes of persons from abroad are not eligible for this assistance. They fall into two broad categories (there are exceptions). First are persons who are subject to immigration control under the Asylum and Immigration Act 1996. The second category consists of persons not yet habitually resident in the Common Travel Area: section 185, and the Homelessness (England) Regulations 2000 (SI 2000/701).   A further class of persons is also excluded from the scope of the homelessness provisions. This comprises persons who have become homeless intentionally. Where a person is homeless, eligible for assistance and has a priority need but has become homeless intentionally, the authority's obligation is limited to providing accommodation for a period which will give the applicant a reasonable opportunity to secure accommodation for his occupation, together with advice and appropriate assistance (section 190). A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation available for him and which it would have been reasonable for him to continue to occupy (section 191).   In the ordinary way it is in cases of ineligibility and intentional homelessness that parents with children have recourse to their local social services authority for assistance with accommodation under the Children Act 1989. Housing assistance not being forthcoming from their local housing authority under the housing legislation, parents turn to another potential source of assistance. Sometimes the local social services authority will be the same local authority as the local housing authority, sometimes not. Typically, in England, outside the metropolitan areas and leaving aside unitary authorities, the county council is the local social services authority and the district council is the local housing authority. Elsewhere, as in the cases involved in the three appeals before the House, a local authority may be both local social services authority and local housing authority. This should not, however, be allowed to obscure the fact that in acting in one or other of these capacities a local authority is exercising different statutory functions. The manner in which the functions of a local housing authority and those of a local social services authority are discharged does not differ according to whether two local authorities are involved or only one.   One further point should be noted. Parliament has now specifically addressed the problem arising in cases where a child normally lives with a parent who is ineligible for housing assistance or has become homeless intentionally. Section 12 of the Homelessness Act 2002 has inserted an additional section, section 213A, into the Housing Act 1996 with effect from October 2002. The effect of section 213A is that in these cases the local housing authority must ensure the local social services authority is made aware of the case, if the applicant agrees. Then, if the social services authority requests the housing authority to provide advice and assistance in exercise of its functions under Part III of the Children Act 1989, the housing authority is obliged to provide the social services authority 'with such advice and assistance as is reasonable in the circumstances'. In the case of a unitary authority the housing department must provide the social services department with such advice and assistance as the social services department may reasonably request.   I can now identify the difficulty. As already noted, a local authority is under a duty to provide accommodation for a homeless child under section 20 of the Children Act 1989. Children are vulnerable, and the Children Act 1989 makes special provision for this vulnerable sector of the community. Frequently the cost of providing accommodation for parent and child together, in the form of bed and breakfast accommodation or by way of a deposit in respect of rented private accommodation, is less than the cost of accommodating the child alone with a foster parent or in a residential institution. This suggests that, at least in such cases, the obviously sensible and desirable course is for the local authority to provide for the accommodation of both parent and child. In the usual way this course will be in the best interests of the child, and the local authority has power to take this course under section 17(3).   But there is a snag. Taking this course with some homeless families would have a knock-on effect. Like cases must be treated alike. If this course were followed the inevitable effect, it is said, would be that social services authorities would find themselves inundated with family accommodation applications. They would find themselves having to provide for the housing needs of many or most families with dependent children where the parents are intentionally homeless or ineligible for housing assistance under the homelessness provisions of Part VII of the Housing Act 1996. W's case and G's case are examples. In W's case the mother was found to be homeless intentionally. She had been evicted for persistent non-payment of rent. In G's case the mother was newly arrived from Holland.   Providing accommodation for these families, it is said, is not the function of a local social services authority. Nor does a local social services authority have the means to discharge this function, akin to that of a surrogate housing authority. The function of a social services authority under the Children Act 1989 is to provide accommodation for homeless children, not homeless families. Parliament has devised a detailed and carefully balanced structure regulating the supply of local authority housing. That scheme is administered by local housing authorities. Parliament has regulated when a parent with dependent children is entitled to housing accommodation. Families with dependent children should not be allowed to jump the housing queue. The statutory housing provisions cannot be circumvented by making an application in the name of a dependent child: R v Oldham Metropolitan Borough Council, Ex p Garlick [1993] AC 509. Nor should families be permitted to circumvent these provisions by relying on the duties of local social services authorities to meet the accommodation needs of children.     Lambeth's policy   Latterly some social services authorities, it seems, have sought to contain the scale of the financial problem associated with meeting the accommodation needs of homeless children by making accommodation available for children in these cases but not their parents. This approach was prompted, or confirmed, by the High Court decision in A's case in May 2001 that section 17 of the Children Act 1989 imposes no duty on a local authority in respect of an individual child.   In September 2001 the social services department of Lambeth council, whose territory includes many deprived inner city areas and whose resources are under severe strain, adopted a general policy along these lines. The council would accommodate homeless children, as required by section 20 of the Children Act 1989. But it would not provide accommodation under section 17 for families applying to it on the ground of homelessness. Providing accommodation for the families of homeless children would divert funds and manpower resources away from other social services which should have priority. Lambeth considered that child protection, and the need to ensure children in its care are appropriately looked after, were the core activities to which it should give priority. A helpful description of the financial pressures besetting Lambeth council appears as appendix 3 to the judgment of Brooke LJ in W's case: [2002] 2 All ER 901, 933.   The reason why this new policy contains the scale of the problem is that, not surprisingly, faced with the prospect of being separated from their children, most mothers make further efforts at self-help and, in a high percentage of cases, their efforts are successful. The experience of Lambeth council is that most potentially homeless families find accommodation for themselves by one means or another. Indeed in W's case Lambeth's evidence was that since adopting its new policy it had not been asked to accommodate a child alone pursuant to its duty under section 20 of the Children Act 1989. Thus, by refusing to accommodate the parent, the overall cost to the social services authority is considerably less than it would otherwise be. The authority ends up not having to accommodate either child or parent. A procedure along these lines was countenanced by the Court of Appeal in G's case: (2001) 4 CCLR 128, 139, paras 24, 25.   The propriety of this general policy is now being challenged before your Lordships' House. The claimants contend it is not lawful for a local authority to offer to accommodate a child alone in the hope or expectation that the parent will refuse to be separated from her child. In G's case the child was 14 months old at the time of the initial decision. The mother adamantly refused to return to the Netherlands. The council decided to end the arrangements whereby G lived with her young child in bed and breakfast accommodation. The council offered instead to accommodate the child with foster parents, even though this would have been more expensive than the existing arrangements.   This challenge is sought to be buttressed by reference to the obligation, inherent in article 8(1) of the European Convention on Human Rights, to take positive steps to secure or protect an effective respect for family life. Mutual enjoyment by parent and child of each other's company is a fundamental element of family life: K and T v Finland (2001) 36 EHRR 255, 287, para 151. The state must act in a manner calculated to allow those concerned to lead a normal family life: Z and E v Austria (1986) 49 DR 67, a decision of the European Commission on Human Rights. If in the particular case it is no more expensive to accommodate parent and child together, and if it is in the child's best interests to live with his parent, this positive duty requires that the accommodation provided for the child should be for the child together with his parent. Choosing to accommodate the child only in such a case would, it was submitted, be a decision which does not respect the family life of the child or his parent. Such a decision by a local authority would be unlawful: section 6(1) of the Human Rights Act 1998.   At the heart of this issue lies the insoluble practical problem of separating those whose needs are genuine from those who are abusing the special protection afforded to children by the Children Act 1989. But the solution adopted by Lambeth council and others does not solve this problem. It does not distinguish the genuine case from the non-genuine. The solution which has been adopted is of universal, or near universal, application. It relies for its success on an expressed intention to offer to accommodate the child alone in virtually all cases. Moreover, this is not just a question of stated intention. Lambeth's policy will not work unless the council thereafter adheres to its stated intentions.   In considering this issue each case must always be considered on its own merits. The facts in every case differ. But without detracting from this overriding principle, a recognisable distinction is discernible here between two broad types of cases: (1) cases where a child is old enough to understand what is happening and is not likely to be significantly upset by being accommodated away from his parent, and (2) cases where this is not so. In the former type of cases the policy adopted by Lambeth council is, in principle, reasonable. The social services authority is not under a duty to accommodate the parent of a child in need although it has power to do so. In this type of case, where the only need of the child is for short term accommodation, accommodating the child alone will safeguard the child's immediate welfare. It would be preferable if accommodation were provided for the parent as well. But this would have the seriously adverse financial repercussions mentioned above. This is a factor the council may properly take into account.   Matters stand differently where the child is not old enough to understand what is going on or, if he is, he would be likely to be significantly upset at being separated from his parent. Providing accommodation for the child alone in this type of case may satisfy the authority's duty under section 20 of the Children Act 1989. But in this type of case the child's immediate need is for accommodation with his parent. This is a basic need. It is difficult to see how the local authority can be said to fulfil its duty under section 17(1) of the Children Act 1989 by accommodating the child alone in such circumstances. It cannot be reasonable in this type of case to give greater weight to the wider financial repercussions than to the adverse consequences to the individual child in the particular case. Parliament cannot have intended that the latitude afforded to local authorities by section 17(1) should embrace such a highly unsatisfactory result regarding the accommodation needs of a child in need.   A social services authority is of course not a housing authority. But section 213A of the Housing Act, mentioned above, goes some way towards providing an answer on this. Where necessary a social services authority should now exercise its power under section 213A to request assistance from the local housing authority. If assistance is not forthcoming the court will scrutinise the housing authority's reasons with rigour in a case where the consequence is that a homeless dependent child, not old enough to understand what is going on or likely to be significantly upset by being separated from his parent, would be accommodated separately from his parent.   If this is the correct approach, as I believe it is, it must follow that in this type of case a local authority should not, expressly or tacitly, threaten a parent that the most it will do is to accommodate the child alone. The authority should not express an intention it cannot properly implement. If a local authority may not properly accommodate a child alone in this type of case where the parent and child could be accommodated together without significant additional cost, then by telling a parent that, if necessary, it will consider taking this course the authority would be putting improper pressure on the parent.   For these reasons I consider Lambeth's existing general policy needs adjustment. In its present form Lambeth's policy goes outside the latitude afforded to a local authority by section 17(1) of the Children Act 1989. In so far as the London Borough of Barnet has adopted a similar policy, its policy likewise needs adjustment. So do similar policies of all other social services authorities and departments which are currently proceeding on a similar basis. But no relief is now called for in W's case or G's case. So I would dismiss these two appeals.     A's case   In A's case the problem is different. It is not a case of homelessness. As will be recalled, in A's case the two children suffering from autism are accommodated with their mother and brother. In this case the problem relates to the quality of the accommodation provided for the family. The core needs of the children are for a flat with four bedrooms away from the road and with a secure outside garden or play area. At first instance Scott Baker J rightly described this as 'a tall order for any council to meet in the light of the limited physical and financial resources and the needs of other families'. This is especially so for an inner city authority such as Lambeth.   In rejecting A's claim both courts below proceeded on the basis that no enforceable duty exists under section 17. In the Court of Appeal Sir Philip Otton described this as a distressing case. He expressed the hope that the housing authority would reconsider it on its merits as soon as possible. He shared Laws LJ's surprise, even unease, at the category in which the family were placed: this 'desperate and devoted mother needs improved accommodation as well as services for her two autistic children': (2001) 4 CCLR 486, 507-508, para 47. That was in November 2001. The needs of the children and their mother have not lessened with the passage of time.   The present position, therefore, is that neither court below considered whether, if section 17(1) of the Children Act 1989 gives rise to an enforceable duty of the character I have described, Lambeth council is in breach of its duty in this case. Your Lordships heard no submissions on this point. The present position may be summarised as follows. The children do not need short-term accommodation. The family need permanent re-housing, because of the special needs of the two autistic children. The social services department is subject to particular statutory obligations regarding the needs of disabled children but it does not possess a stock of housing. The housing department, on the other hand, has a stock of housing but is not subject to a like statutory obligation in respect of the needs of disabled children.   Disabled children, with their special housing needs, cannot be permitted to fall between these two stools. When enacting the Children Act 1989 Parliament envisaged that a local authority might need to seek help from other authorities, such as a local housing authority, in discharging its functions under Part III of the Act. Section 27 of the Children Act 1989 provides that the requested authority must comply with the request if it is compatible with its own duties and does not 'unduly prejudice' the discharge of its own functions. The relevant authorities are obliged to cooperate with each other. So in discharging its duty under section 17(1) Lambeth council's social services department, as the local social services authority, may request help from the housing department, as the local housing authority, in re-housing A and her family. The housing department must comply with the request if it is compatible with its own duties and does not unduly prejudice the discharge of any of its functions. I emphasise the word 'unduly'. If such a request is made the housing department, much pressed as it undoubtedly is, must nonetheless take note that the department responsible for safeguarding the welfare of children has decided that these two children need better housing. The housing department will wish to consider the practicability of accelerating the provision of accommodation which at least in some respects is more suitable for the acute needs of these two disabled children.   In the circumstances the appropriate course is for these judicial review proceedings to be remitted to the Administrative Court for further hearing in the light of the judgments of the House. Before the proceedings are restored for further hearing Lambeth council will no doubt reconsider its position. I would allow this appeal accordingly. LORD STEYN My Lords,   I have had the privilege of reading the opinion of Lord Nicholls of Birkenhead. For the reasons he has given I would also make the orders which he proposes. LORD HOPE OF CRAIGHEAD My Lords,   The facts of these cases have been fully set out by my noble and learned friend Lord Nicholls of Birkenhead, whose speech I have had the advantage of reading in draft. I gratefully adopt his account of them, and I proceed at once to the important and difficult issues of law which they have raised. Background   The purpose of the Children Act 1989, as its long title indicates, was to reform the law relating to children. The aim was to provide a clear and consistent code for the whole area of child law. Reforms had been made hitherto in a piecemeal way, resulting in a complex series of provisions in different statutes some of which were contradictory. The framework which had been created had been shown by the DHSS Review of Child Care Law (1985) to be inadequate. Major changes to the law were recommended as a result of this review, and many of them were accepted by the Government: The Law on Child Care and Family Services (1987) (Cm 62). Among the issues that required attention were the role of local authorities in supporting families who were in difficulty and the role of parents when their children were being looked after by a local authority. The control of social work decision-taking was another area of concern, following the Report of the Inquiry into child abuse in Cleveland 1987 (Cm 412). But that is not the area of the law with which these three cases are concerned. We are concerned here with local authority support for children and their families. The reforms in this area of child law are set out in Part III of the Act.   The theme to which the provisions in Part III of the Act are devoted is identified at the very outset in section 17(1). It provides that it shall be the general duty of every local authority, in addition to the other duties imposed on them by that Part of the Act: "(a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs." There then follow, in the remainder of Part III and in Schedule 2, provisions dealing with investigations and assessments of needs of children and duties to provide various particular kinds of support services.   Section 17(1)(b) emphasises the importance which is to be attached to the promotion of the upbringing of children in need by their families. As Judith Masson (now Professor Masson, of Warwick University) noted in her general note on section 17 in Current Law Statutes, this subsection represented a fundamental shift in the provision of social services where children were concerned. It laid down a new statutory framework for all preventive work in child care. It recognised that, while local authority care may have a positive contribution to make in this field, family life too makes a valuable contribution to a child's welfare. John Murphy, "Children in need: the limits of local authority accountability" (2003) 23 Legal Studies 103, 104 makes the same point: "Since Part III of the Children Act 1989 is a central plank in that legislation's endeavour to reduce state intervention in the essentially private domain in family life, the duties it contains are designed to help to keep the use of compulsory measures under subsequent Parts of the Act to a minimum by providing support services that avoid the need to have recourse to those compulsory measures." As John Murphy observes in his paper at p 104, note 5, Part III was intended to reflect the obligation in article 18(2) of the United Nations Convention on the Rights of the Child which was adopted on 20 November 1989 and entered into force on 2 September 1990 to render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and to ensure the development of institutions, facilities and services for the care of children: see The United Kingdom's First Report to the UN Committee on the Rights of the Child (HMSO, 1994), p 2.   The Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms guarantees to everyone respect for his private and family life. Article 8(2) provides: "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life, and the placement of children in foster homes or other accommodation which they do not share with their parents constitutes an interference with the right protected by article 8: Kutzner v Germany (2002) 35 EHRR 653, 664, paras 58-59. But the contracting states have a wide margin of appreciation to determine the necessity of any measures taken in pursuit of the legitimate aim of protecting the child's health and rights, which may vary according to the nature of the issues and interests at stake: KA v Finland, Application No 27751/95 (unreported) 14 January 2003. It has not been suggested that Part III of the 1989 Act fails, in principle, to meet the requirements of article 8(2). The general duties set out in section 17(1) would seem to be plainly in keeping with these requirements. The question whether decisions taken under Part III are compatible with the child's article 8 Convention rights must, of course, depend on the facts of each case.   The range of support services that may be provided under Part III and Schedule 2 is very wide. Among these services is the provision of accommodation, and it is the refusal of the respondents to provide accommodation which has given rise to these appeals. But it must be noted, as part of the background, that the functions which a local social services authority performs under the 1989 Act are different from those performed by the local education authority and the local housing authority. All the social services functions of a local authority under the 1989 Act are vested in the social services committee established under section 2 of the Local Authority Social Services Act 1970: see Schedule 1 to that Act, as amended by paragraph 26 of Schedule 13 to the 1989 Act. Responsibility for the provision of support for children and their families was placed on county councils in those areas which are not served by metropolitan districts, the London boroughs and unitary authorities created under Part II of the Local Government Act 1992: see the definition of "local authority" in section 105(1) of the 1989 Act.   Different authorities are involved in the provision of housing accommodation in the areas not served by metropolitan districts, London boroughs and the unitary authorities. Section 1 of the Housing Act 1985 provides that in these areas the district council, not the county council, is the local housing authority. Section 8(1) of the 1985 Act provides that it is the duty of every local housing authority to consider housing conditions in their district and the needs of the district with respect to the provision of further housing accommodation, and section 21 of that Act vests the general management, regulation and control of a local authority's houses in the local housing authority. Among the duties allocated to the local housing authority are the allocation of housing accommodation and duties with regard to the housing of the homeless: see Parts VI and VII of Housing Act 1996. The social services and housing functions are both vested in the metropolitan districts, London boroughs and the unitary authorities, but different officials and different committees are involved and separate accounts must be kept for each function. The statutory duties and functions of the local social services authority in the provision of child care are thus separated from those of the local housing authority which is responsible for the provision of housing accommodation in the area. The section 17(1) issue   The three cases which are before your Lordships in these appeals are all concerned with children who are in need, and they are all concerned with children who at the date of the relevant decisions were still living with their parents in the same household. The general duties which are set out in section 17(1) are therefore directly in point in each case. In A's case the family consists of three children, two of whom are in need because they are disabled children: section 17(10)(c). They are disabled because they suffer from autism. In the cases of G and W, the children were in need because the parents with whom they were living (who were their mothers only, in both cases) were homeless. Their health or development was likely to be significantly impaired without the provision of services by the local authority under Part III of the Act: section 17(10)(b). In all three cases the children were, at the relevant date, living with their mothers in the same family.   There is another characteristic which these three cases shared. It was the lack of residential accommodation which was suited to the needs of the children if they were to remain within the family unit without the risk of significant impairment to their welfare. Section 17(6) provides that the services provided by a local social services authority in the exercise of functions conferred on them by that section may include giving assistance in kind or, in exceptional circumstances, in cash. Among the forms of assistance in kind that may be given under this subsection is assistance in the form of accommodation. This is now the subject of express provision, as a result of an amendment which was made to section 17(6) with effect from 7 November 2002 by section 116(1) of the Adoption and Children Act 2002. But it was already the practice for short-term residential accommodation to be provided under that subsection before it was amended.   It has not been suggested in any of these cases that it would have been beyond the power of the local authorities at the date when these decisions were taken to provide assistance in the form of residential accommodation if this was needed to enable the children to live with their families. But it is not enough for it to be shown that the local authorities had power to provide the accommodation. The appellants' case is that the effect of section 17(1) is that the respondents owed a duty to each individual child in need to provide that child with residential accommodation to enable the child to live with his or her mother in the same family if an assessment of that child's needs shows that this is what is required to meet these needs. My noble and learned friend Lord Nicholls has said that the issue is whether a local authority may insist on providing accommodation for a child alone as distinct from accommodation for the child and the mother. It should be appreciated however that the alternative to providing accommodation for the child and the mother is that the child would be looked after by the local authority: see section 22(1). There are various ways in which a local authority may provide accommodation for a child whom they are looking after, none of which involve requiring the child to live alone: see section 23(2).   The respondents in each of these three cases are London boroughs, so they are the local housing authority as well as the local social services authority for their areas. It is in their capacity as the local social services authority that they are charged with the responsibility of performing functions under Part III of the 1989 Act. The cost of providing accommodation for children in need under Part III must be met out of the funds which are set aside in their accounts for the provision of social services. As I have mentioned, the provision of accommodation is only one of the many services which may be provided in the performance of the general duty which is owed by the local social services authority under section 17(1). It is an inescapable fact of life that the funds and other resources available for the performance of the functions of a local social services authority are not unlimited. It is impossible therefore for the authority to fulfil every conceivable need. A judgment has to be exercised as to how needs may best be met, given the available resources. Parliament must be taken to have been aware of this fact when the legislation was enacted.   That is the background to the question of law which lies at the heart of all three appeals. Does section 17(1) require a local social services authority to meet every need which has been identified by an assessment of the needs of each individual child in need within their area? For the appellants it is maintained that, once there has been an assessment of the needs of an individual child in need, there is a specific duty on the local social services authority under this subsection to provide services to meet the child's assessed needs. It follows that the child has an absolute right to the provision of residential accommodation, if this is the need which has been identified by the assessment. If this approach is right, neither the cost of providing these services nor the availability of resources can play any part in the assessment of the child's need by the local social services authority or in its decision as to whether, and if so how, it should meet that need.   My noble and learned friend Lord Nicholls has said that, on the respondents' approach to the construction of section 17(1), it follows that a local authority is not under a duty to assess the needs of a child in need under section 17(1) and that this would go far to stultify the purpose of Part III of the Act. I should make it clear, before I embark on my analysis, that I am unable to agree that this conclusion follows from the respondents' argument. Section 17(2) provides that, for the purpose of facilitating the discharge of the general duty under that section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2. The duty of the local authority to take reasonable steps to identify the extent to which there are children in need in their area is to be found in paragraph 1 of the Schedule. That will involve assessing the needs of each child who is found to be in need in their area as paragraph 3 makes clear. A v Lambeth: section 17(1)   The situation in this case raises the question which these cases have identified under section 17(1) in its most acute form. The needs of the appellant's two disabled children were assessed by the respondent in the exercise of their functions as the local social services authority. It was found that the flat in which they were living was overcrowded and damp and that the bedroom windows and kitchen units were broken. It was also found that the flat was in a location which was very dangerous to them as it was very close to the road and one of the children had a fixation with climbing out of the window and running out of the front door. The conclusion was that the children should continue to live with the family but that the family needed to be "re-housed" to an appropriate accommodation. The appellant maintains that it is the duty of the respondent under section 17(1) of the Act as the local services authority to meet the assessed need, and she seeks an order to that effect.   The duty which has been placed on the local social services authority by section 17(1) to provide a range and level of services appropriate to the children's needs is described by the subsection as a "general duty". This duty is said by the opening words of the subsection to be in addition to the other duties imposed on them by Part III of the Act. And section 17(2) provides that, for the purpose principally of facilitating the discharge of their general duties under that section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2. The duty on which the appellant seeks to rely in this case is not one of the other duties imposed on the respondents by Part III of the Act, nor is it one of the specific duties set out in Part I of Schedule 2. Her case rests therefore fairly and squarely on the propositions that the general duties described in section 17(1) are owed to each and every child in need individually, and that they are enforceable against them by or on behalf of each individual child accordingly. The contrary view is that section 17(1) is designed to set out the general principles which the local services authority must apply when providing services to children in need in their area.   An examination of the range of duties mentioned elsewhere in Part III of the Act and Part I of Schedule 2 tends to support the view that section 17 (1) is concerned with general principles and is not designed to confer absolute rights on individuals. These other duties appear to have been carefully framed so as to confer a discretion on the local services authority as to how it should meet the needs of each individual child in need.   Section 18(1), which imposes a duty to provide day care for pre-school children, provides that the local authority shall provide such day care "as is appropriate". Section 20(1), which imposes a duty to provide accommodation for a child for whom no person has parental responsibility, who is lost or abandoned or whose carer has been prevented from providing him with suitable accommodation or care, and section 20(3), which imposes a duty to provide accommodation for children over sixteen, leave important matters to the judgment of the local authority: "appears to them to require accommodation" in section 20(1); "whose welfare the authority consider is likely to be seriously prejudiced" in section 20(3). So too does section 22, which imposes a duty on the local authority (described in the side-note, but not in the section itself, as a "general" duty) before making a decision with respect to a child whom they are looking after to ascertain the wishes and feelings of the child and various other people "so far as is reasonably practicable" and to give "due consideration" to such wishes and feelings as they have been able to ascertain. So too does section 23, which imposes a duty on the local authority to provide accommodation for children whom they are looking after, as section 23(2) sets out a range of options which includes in subsection 2(f)(i) such other arrangements as "seems appropriate to them". The duties in Schedule 2 follow the same pattern. The duties in paragraphs 6 and 7 also leave important matters to the judgment of the local authority: "designed" to "minimise" the effect in paragraph 6; "designed" to "reduce", to "encourage" and to "avoid" in paragraph 7. Those in paragraphs 8 and 9(1) are qualified by the expression "as they consider appropriate", and the duty in paragraph 10 is qualified by the words "take such steps as are reasonably practicable".   The discretion which is given by these provisions to the local authority is framed in various ways, but the result is the same in each case. Where a discretion is given, the child in need does not have an absolute right to the provision of any of these services.   The use of the expression "general duty" in section 17(1), too, suggests that the purpose of the subsection was to set out duties of a general nature only and that they were not intended to be enforceable as such by individuals. The DHHS Review of Child Care Law contained the following recommendations: "5.7 Local authority powers and duties regarding children living with their families could be regarded as having two main aims: to provide 'family support' to help parents bring up their children; and to seek to prevent admission to care or court proceedings except where this is in the best interests of the child .… 5.8 We believe the provisions should be stated clearly in general terms of making services available at an appropriate level to the needs of the area rather than in terms of duties owed to individual children or families, in order to leave local authorities a wide flexibility to decide what is appropriate in particular cases while providing for a reasonable overall level of provision. It is for local authorities to decide on their priorities within the resources available to them."   The recommendations of the DHHS Working Party on Child Care Law were taken into account in the White Paper, The Law on Child Care and Family Services, which preceded the introduction of the Bill which became the 1989 Act. Chapter Two of the White Paper deals with services to families with children. In paragraph 14 it was explained that the powers and duties of local authorities to provide services to promote the care and upbringing of children and to diminish the need to take them compulsorily into local authority care were to be revised, and that there was to be a new focus on the provision of services in voluntary partnership with parents. In paragraph 18 the proposals for promoting the care and upbringing of children in their families were introduced in this way [emphasis as printed in the White Paper]: "It is proposed to give local authorities a broad 'umbrella' power to provide services to promote the care and upbringing of children, and to help prevent the breakdown of family relationships which might eventually lead to a court order committing the child to the local authority's care. Within this power the local authority will be able to provide services to a child at home, for example a family aide to assist within the home; at a day centre, for example a day nursery for pre-school children, an after school scheme for school age children or placement with a childminder; or residential facilities allowing a child to stay for short or long periods away from home, say with a foster family or in a children's home. The local authority will also be able to offer financial assistance in exceptional circumstances. This is not an exclusive list …."   This legislative background serves to reinforce the impression which the structure and language of the legislation itself gives, that the so-called "general duty" in section 17(1) is owed to all the children who are in need within their area and not to each child in need individually. It is an overriding duty, a statement of general principle. It provides the broad aims which the local authority is to bear in mind when it is performing the "other duties" set out in Part III (see the words in parenthesis in section 17(1)) and the "specific duties" for facilitating the discharge of those general duties which are set out in Part I of Schedule 2 (see section 17(2)). A child in need within the meaning of section 17(10) is eligible for the provision of those services, but he has no absolute right to them.   The appellants submit that the correct analysis of section 17(1) is that the general duty which it sets out is made "concrete and real" for a specific person when that person is assessed as being in need of the services which are available by way of the general duty. In other words, the process of assessment "crystallises" the general duty so that it becomes a specific duty which the local social services authority now owes to the individual whose needs have been assessed.   This argument is based on the approach which was taken by the Court of Appeal in R v Kensington and Chelsea Royal London Borough Council, Ex p Kujtim [1999] 4 All ER 161 to the case of a person who had been assessed by the local authority under section 47 of the National Health Service and Community Care Act 1990 as being a person in urgent need of care and attention which was not otherwise available to him, so that he satisfied the criteria laid down in section 21(1)(a) of the National Assistance Act 1948. It was submitted in that case that, in consequence of that assessment, the local authority were under a continuing duty to meet these needs by providing him with residential accommodation until, upon a reassessment, it was decided that his needs had changed. That argument was accepted by the Court of Appeal. The contrary argument, that this was no more than a "target" duty in the sense of the label used by Woolf LJ in R v Inner London Education Authority, Ex p Ali (1990) 2 Admin L R 822, 828 in relation to section 8 of the Education Act 1944, was rejected. Potter LJ said in Ex p Kujtim, at p 175c-d, para 30, that the position was as follows: "Once a local authority has assessed an applicant's needs as satisfying the criteria laid down in section 21(1)(a), the local authority is under a duty to provide accommodation on a continuing basis so long as the need of the applicant remains as originally assessed, and if, for whatever reason, the accommodation, once provided, is withdrawn or otherwise becomes unavailable to the applicant, then (subject to any negative assessment of the applicant's needs) the local authority has a continuing duty to provide further accommodation."   In the Court of Appeal in the A case [2001] EWCA Civ 1624, (2001) 4 CCLR 486, 501, para 26 Laws LJ, with whose opinion on this point Chadwick LJ and Sir Phillip Otton agreed, said that he was willing to accept that the approach taken by Potter LJ in Ex p Kujtim might be characterised or described as demonstrating that the operation in practice of section 21 of the National Assistance Act 1948 involves the notion of a "target" duty which becomes "crystallised" and thus enforceable upon the happening of an event, namely a needs assessment. But he went on to say that this analysis of section 21 of the 1948 Act could not conclude the question whether a like result could be got out of section 17 of the 1989 Act. Having examined the differences of language between these two provisions, he concluded, at p 502, para 29, that neither the terms of section 21 of the 1948 Act nor the reasoning of the Court in Kujtim could support a construction of section 17 of the 1989 Act which would in practice produce an analogous result.   It is necessary to pay close attention to the differences between the wording and structure of these two provisions and the context in which they are placed by the respective statutes. Section 21 of the 1948 Act (as amended by section 195 of and Schedule 23 to the Local Government Act 1972, section 108(5) of and Schedule 13 to the Children Act 1989 and section 42 of the National Health Service and Community Care Act 1990) provides: "Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing - (a)  residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them."   I respectfully agree with Laws LJ's comment, at p 501, para 27, that, where (as in Ex p Kujtim) the Secretary of State has given mandatory directions under section 21(1), it is difficult to see how this provision can be read otherwise than as imposing a concrete duty on the authority to see to it that accommodation is provided for persons assessed as falling within one or other of the classes specified. But the contrast between the wide and general language of section 17(1) of the 1989 Act and the way in which the various other duties in Part III and the specific duties set out in Part I of Schedule 2 which I have discussed above are qualified so as to leave matters to the discretion of the local authority is very marked.   I think that the correct analysis of section 17(1) is that it sets out duties of a general character which are intended to be for the benefit of children in need in the local social services authority's area in general. The other duties and the specific duties which then follow must be performed in each individual case by reference to the general duties which section 17(1) sets out. What the subsection does is to set out the duties owed to a section of the public in general by which the authority must be guided in the performance of those other duties: see R v London Borough of Barnet, Ex p B [1994] ELR 357. In that case Auld J considered the guidance issued under section 7 of the Local Authority Services Act 1970 entitled The Children Act 1989 Guidance and Regulations, vol 2: Family Support, Day Care and Educational Provision for Young Children. He observed, at pp 360-361, that the duties under Part III of the 1989 Act fell into two groups, those which are general and those which are particular, and that the general duties are concerned with the provision of services overall and not to be governed by individual circumstances. He referred to the way this point is made in para 2.11 of the Guidance in relation to the duties set out in sections 17 and 18: "Local authorities are not expected to meet every individual need, but they are asked to identify the extent of need and then make decisions on the priorities for service provision in their area in the context of that information and their statutory duties."     As Mr Goudie QC for the respondents accepted, members of that section of the public have a sufficient interest to enforce those general duties by judicial review. But they are not particular duties owed to each member of that section of the public of the kind described by Lord Clyde in R v Gloucestershire County Council, Ex p Barry [1997] AC 584, 610A which give a correlative right to the individual which he can enforce in the event of a failure in its performance.   A further point is particularly relevant to this case, as the service which is sought is the provision of residential accommodation. The need which the assessment has identified is not for the provision of temporary accommodation only. As the recommendation at the end of the assessment puts it, what this family needs is to be "re-housed". Section 17 refers to a range and level of services appropriate to the children's needs. It is broadly expressed, with a view to giving the greatest possible scope to the local social services authority as to what it chooses to do in the provision of these services. Although the services which the authority provides may "include" the provision of accommodation (see section 17(6)), the provision of residential accommodation to re-house a child in need so that he can live with his family is not the principal or primary purpose of this legislation. Housing is the function of the local housing authority, for the acquisition and management of whose housing stock detailed provisions are contained in the Housing Acts. Provisions of that kind are entirely absent from this legislation.   We were informed that this is far from being an isolated case of its kind, as about 200 such cases involving children in need had been identified by the respondents in their area in the past 5 months. The expenditure of limited resources on the provision of residential accommodation for housing these children with their families would be bound to mean that there was less available for expenditure on other services designed for the performance of the general duty which section 17(1) has identified. A reading of that subsection as imposing a specific duty on the local social services authority to provide residential accommodation to individual children in need who have been assessed to be in need of such accommodation would sit uneasily with the legislation in the Housing Acts. As Mr Goudie pointed out, it could have the effect of turning the social services department of the local authority into another kind of housing department, with a different set of priorities for the provision of housing for the homeless than those which section 59 of the Housing Act 1985 lays down for the local housing authority.   There was no failure in this case to assess the needs of the appellant's children: contrast R (on the application of AB and SB) v Nottinghamshire County Council [2001] EWHC Admin 235; (2001) 4 CCLR 295. The failure which is alleged is a failure to purchase residential accommodation which is suitable for the children's needs. The order which the appellant seeks is an order that the respondent must provide services pursuant to section 17 to meet their assessed needs and a declaration that the respondent has acted in breach of its statutory duties. Her argument is entirely dependent upon the proposition that the effect of that assessment has been to crystallise the general duty under section 17(1) so that it has become a specific duty owed to A's children as individuals. Troublesome though A's case is in view of the difficulties which the assessment has so carefully identified, I am unable to accept that this approach is consistent with the language of the statute. I would therefore reject the argument which has been advanced under section 17(1), in all three cases. G v Barnet; W v Lambeth: section 23(6)   These cases concern children whose mothers were unable to provide them with accommodation unless assisted to do so by the respondents in their capacity as their local social services authority. This is because the local housing authority were under no duty to assist the mothers under the homelessness legislation. The respondents offered to meet the needs of G's child by offering to provide financial assistance to G so that they could return to Holland, but G would not accept this. As a result of interim orders made in these proceedings, the respondents arranged for the family to be provided with bed and breakfast accommodation when it became clear that W and her two children could no longer live in her niece's flat. No formal assessment establishing the needs of the children was made in W's case, but in G's case a child in need assessment form was completed. The appellants' contention is that the respondents were under a duty to meet the children's needs under section 17(1) by enabling them to be brought up by their parents in the same family. They also contend that the respondents were under a duty under section 20(1) to provide accommodation for their children, and that in fulfilment of this duty they were required by section 23(6) to provide the mothers with accommodation so that their children could live with them.   Section 23(6) provides: "Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with - (a)  a person falling within subsection (4); or (b)  a relative, friend or other person connected with him, unless that would not be reasonably practicable or consistent with his welfare."   The expression "any local authority looking after a child" in section 23(6) has to be read together with section 22(1), which (as amended by section 107 of and Schedule 5 to the Local Government Act 2000) provides: "In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is - (a)  in their care; or (b)  provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970."   The reference in section 22(1)(b) to children provided with accommodation by the local authority has to be read together with section 20(1), which provides: "Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of - (a)  there being no person who has parental responsibility for him; (b)  his being lost or having been abandoned; or (c)  the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care."   There are, then, four hurdles that the appellants must cross if they are to succeed in their argument. First, they must show that their children are children in need within the meaning of section 17(10). It was not suggested that there would have been any serious room for doubt on this point. Their mothers were unable to provide them with accommodation, and in both cases the children were at serious risk of having no roof over their heads at all. Leaving them to sleep in doorways was not an option in their case. Children who are reduced to this level of destitution are plainly children in need. Their health or development is likely to be significantly impaired if they are not provided with services by the local social services authority: section 17(10)(b).   The appellants must show, in the second place, that the respondents were under a duty to provide their children with accommodation. Local social services authorities are under a duty to provide accommodation for a child in need within their area who appears to them to require accommodation as a result, among other things, of the person who has been caring from him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care: section 20(1)(c). This provision must be read in the light of the general duties set out in section 17(1). Among these duties there is the duty to safeguard and promote the welfare of the child. At first sight the concept of the carer being prevented from providing the child with suitable accommodation or care does not sit easily with the situation where the carer has chosen to refuse offers of accommodation or other forms of assistance by the relevant local authority. But the words "for whatever reason" indicate that the widest possible scope must be given to this provision. The guiding principle is the need to safeguard and promote the child's welfare. So it makes no difference whether the reason is one which the carer has brought about by her own act or is one which she was resisting to the best of her ability. On the facts, it is plain that the respondents were under a duty to provide accommodation for the appellants' children under section 20(1).   The appellants must then show, in the third place, that section 23(6) applies to their case. That subsection applies where a local social services authority "are looking after a child." This expression is defined in section 22(1), which provides that any reference in the Act to a child "who is looked after by a local authority" is a reference to a child who is either in their care or is provided with accommodation by the authority in the exercise of any functions referred to the social services committee, including the functions under the Act. As it happens, the situation described in this subsection had not yet been reached in either of these two cases. W had been provided with bed and breakfast accommodation for herself and her children, but this was not accommodation provided to the children themselves within the meaning of this provision. The reference in section 22(1) to the provision of accommodation is a reference to the provision of accommodation for children themselves under either section 20(1) or section 22(1). Nevertheless it is clear that if the stage had been reached where the respondents were fulfilling their duty to provide accommodation for them under section 20(1)(c), the children would have been children who were being looked after the local authority within the meaning of section 22(1).   This brings me to the crucial point in this part of the case, which is whether a local authority looking after a child is under a duty to provide accommodation to any of the persons mentioned in section 23(6)(a) and (b), who include the child's parent, to enable the child to live with that person. The duty, as expressed in the subsection, is to "make arrangements to enable" the child to live with any one of the person mentioned. It is qualified by the words "unless that would not be reasonably practicable and consistent with his welfare". The appellants' argument is that among the arrangements that may be made in the performance of this duty is the provision of accommodation to the person mentioned so that the child will be able to live with that person. They also submit, relying on Lord Browne-Wilkinson's observation in R v East Sussex County Council, Ex p Tandy [1998] AC 714, 749C, that neither the cost of doing this nor the availability of resources have any bearing on what is or is not reasonably practicable as to permit this would downgrade the duty into a discretionary power.   Section 23 deals with children who are being looked after by a local social services authority either because they in the care of the authority (that is to say, by virtue of a care order under section 31(1) or are being provided with accommodation by it. Detailed provisions are made in section 23(2) as to the various ways in which accommodation may be provided for the child, which include placing the child with a family, a relative or any other suitable person. Section 23(5) provides that, where a child is in the care of a local authority, the authority may only allow the child to live with a parent, a person who has parental responsibility for him or a person in whose favour a residence order was in force before the care order was made in accordance with regulations made by the Secretary of State. These provisions all assume that the person with whom the child is to be placed or the person with whom the child may be allowed to live under section 23(5) already has accommodation which will enable the child to live with that person.   Section 23(6) appears to have been framed on the same assumption. The context in which it appears suggests that this is so. But the wording of the subsection, and its content, reinforce the argument. The arrangements to which it refers are arrangements enabling the child to live with that person. Nothing is said about providing that person with accommodation. Moreover the duty to make the arrangements to which it refers is not restricted to enabling the child to live with his family. If it had been so restricted there might have been some force in the argument that the duty in this subsection was to be read together with the general duty in section 17(1) to promote the upbringing of the child by his family. But the person with whom the child may be enabled to live under this subsection include relatives other than his parents, friends and other person connected with him: section 23(6)(b). The width of this class of persons indicates that what Parliament had in mind when it was enacting this provision was that these were persons who already had accommodation of their own. The fact that the duty is qualified by reference to what is reasonably practicable and consistent with the child's welfare is entirely consistent with this approach. It permits the local authority to have regard to the nature of the accommodation which that person is able to provide before it takes its decision as to whether, and if so with whom, the child is to be accommodated under this subsection. It is not concerned with the resources of the local authority, because the duty does not extend to the provision of accommodation for that person at its own cost or from its own resources. Conclusion   I would dismiss these appeals. LORD MILLETT My Lords,   I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope of Craighead, with which I am in full agreement. I add a few words of my own in order to explain why I am unable to accept the conclusion of my noble and learned friend Lord Nicholls of Birkenhead that section 17(1) of the Children Act 1989 imposes a duty on the social services authority in respect of the needs of a particular child. In my opinion it imposes a general and overriding duty to maintain a level and range of services sufficient to enable the authority to discharge its functions under Part III of the Act.   Section 17(1) contains three indications of the nature of the duty which it imposes. The first is that it is described as a general duty. I agree that this is not decisive by itself. It may be contrasted with the specific duties and powers mentioned in Section 17(2). But it does suggest that what is to follow is a general and comprehensive duty owed to all persons within the authority's area rather than a duty which is owed to particular individuals.   The second indication is that it is a duty to safeguard and promote the welfare of "children within their area who are in need" and to promote the upbringing of such children by their families. This is couched in terms which suggest that it is a broad and general duty to cater for the needs of all the children concerned, rather than a duty to meet the needs of any particular child. This feature, too, cannot be decisive, for the words can be read as involving a duty in respect of the welfare and upbringing of each child. But it cannot be assumed that they do involve such a duty, for this is the very question to be decided.   In my opinion, however, the third indication is decisive. The duty is not a duty to safeguard and promote the welfare of the children concerned simpliciter, but to do so "by providing a range and level of services appropriate to those children's needs." A social services authority which provides a range and level of services appropriate to meet the various needs of children in its area has discharged its duty under section 17(1). This cannot be read as a duty to meet the needs of any particular child. It is sufficient that the authority maintains services for which his particular needs make him eligible.   It does not follow that the social services authority is not obliged to assess the needs of the individual child. The existence of a power to provide assistance to a class involves a duty to consider whether a particular individual is eligible for such assistance; and in the present context that involves assessing the needs of the child in order to decide whether and the extent to which the authority will meet his needs. But there is no need to invoke this implied duty; as my noble and learned friend Lord Hope has explained, the relevant duty is expressly provided by paragraphs 1 and 3 of Schedule 2.   I would dismiss the appeals.     LORD SCOTT OF FOSCOTE My Lords,   The three appeals before the House require a view to be taken as to the intended function and effect of section 17(1) of the Children Act 1989. The issue, expressed in general terms, is whether the "general duty" imposed by the sub-section on local authorities can, in appropriate circumstances, be treated as a targeted and specific duty owed by the local authority to an individual child. It may well be that the issue thus expressed will not lead to any useful answer. An answer such as "sometimes" or "it depends" would neither resolve the three appeals nor provide any guidance to those involved in other cases which throw up the same issue. Nonetheless I think it is necessary to start by briefly considering the issue in general terms before considering it in the context of the facts of the three particular cases.   Section 17(1) says that: "It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)- (a)  to safeguard and promote the welfare of children within their area who are in need; and (b)  so far as it consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs." The language of this provision seems to me to provide very infertile soil for the extraction of a targeted, specific duty owed to an individual child.   First, the adjective "general", qualifying the "duty", is indicative of an overarching duty applying to a class rather than to individuals and of a 'framework' duty under the umbrella of which specific duties imposed by other statutory provisions may from time to time come into existence in relation to specific children. The point is underlined by sub-section (2) which says that: "For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2." The contrast in sub-section (2) between the "general duty" imposed by sub-section (1) and the "specific duties" to be found elsewhere is explicit.   Second, the context of the sub-section (1) "general duty" is expressed in broad aspirational terms that would not easily lend themselves to mandatory enforcement. The local authority must "safeguard and promote the welfare" of the children. It must "promote the upbringing of such children by their families". Nothing could be less specific.   Third, sub-section (1) specifies, again in very broad terms, the manner in which the "general duty" is to be discharged, namely, "by providing a range and level of services appropriate to those children's needs". This language is contemplating the children, the objects of the general duty, as a class.   Part I of Schedule 2 to the Act, as section 17(2) has led one to expect, imposes specific duties and confers specific powers on local authorities. Paragraph 1(1) says that: "Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area." This obligation is not expressed in absolute terms. The local authority will have discharged its mandatory duty if it has taken "reasonable steps". Having identified a child "in need" it will often be necessary for the local authority to assess the actual needs of the child. Somewhat surprisingly the requirement for the local authority to do so is nowhere expressly spelt out. Paragraph 3 of the schedule says that: "Where it appears to a local authority that a child within their area is in need, the authority may assess his needs for the purposes of this Act at the same time as any assessment of his needs is made under - (a)  the Chronically Sick and Disabled Persons Act 1970; (b)  Part IV of the Education Act 1996; (c)  the Disabled Persons (Services, Consultation and Representation) Act 1986; or (d)  any other enactment." It is, I think, implicit in this provision that the local authority will assess the actual needs of a child in need whenever it appears necessary to do so.   Most of the specific duties imposed on local authorities under Part 1 of Schedule 2 are expressed in proportionate rather than absolute terms. Thus, paragraph 4(1) requires every local authority to "take reasonable steps … to prevent children within their area suffering ill-treatment or neglect". Paragraph 7 requires every local authority to "take reasonable steps designed …" to benefit the children in various specified ways (emphasis in each case added). Paragraph 8 requires every local authority to "make such provision as they consider appropriate …" for specified types of services to be made available to children in need who are living with their families. Paragraph 10 requires every local authority to "take such steps as are reasonably practicable …" to enable a child in need living apart from his family to live with his family (emphasis again added). It is plain, in my opinion, that in relation to each of these specific duties the local authority can take into account among other things, its overall financial resources and, in particular, the cost of taking a specific step that, if taken, would benefit the child and meet some need. Whether the taking of a particular step is "reasonable" or "reasonably practicable" cannot be divorced from the financial implications of taking the step.   Viewed in the context of these specific duties imposed on local authorities under Part 1 of Schedule 2 to the Act it would be odd to find that the section 17(1) general duty had imposed on a local authority a mandatory obligation to take some specific step in relation to the child irrespective of the local authority's financial resources and of the cost of the step in question. But that is the result for which counsel for the appellants in these three appeals contend.   It is time, I think, to consider the point in the context of the particular facts of the three cases. Let me start with the case of A. She is the mother of three children, two of whom suffer from autism. They are unquestionably children "in need". They live in a two-bedroom ground floor local authority flat with no outside play area. The two autistic children, both boys, are now aged 9 and 7. In May 2000 assessments of the two children for the purposes of the 1989 Act took place. There was particular emphasis on their housing needs. The assessments were, among other things, that the family's existing accommodation had a number of unacceptable risk factors so far as the two boys were concerned and that the family needed to be re-housed in a four bedroom flat with access to a garden.   In September 1998 the council had given the family an overriding priority for re-housing but nothing suitable had been offered. Following the May 2000 assessments the council were still unable to give a date by which suitable accommodation meeting the standards required by the assessment might be available. A shortage of suitable houses or flats in the council's housing stock and limited financial resources were the problem. So proceedings were started. The appellant sought a mandatory order requiring the council to "identify a suitable property and provide appropriate support in line with assessed needs".   Mr Gordon QC's core contention on behalf of A is short and simple. He accepts that section 17(1) starts by imposing a general duty. But, he says, once the actual needs of a child in need have been identified by a needs assessment, the council comes under a targeted, specific duty to meet the assessed needs. Lack of resources, or perhaps, putting the point more accurately, competition for limited resources, is irrelevant. The council's section 17(1) duty has become a mandatory and absolute duty to provide the specific services to A and her children identified by the needs assessment.   The issue in both the G case and the W case is whether section 17(1) imposes a mandatory duty on a local authority to provide housing to the parent of a child in need so as to enable the child to live with his or her parent.   W lives with her two children. She lost her accommodation in March 2000 in circumstances that led the council to conclude that she had become intentionally homeless and was not entitled under the homeless persons legislation (Part VII of the Housing Act 1996) to council housing. She appealed against the council's decision but the Court of Appeal dismissed her appeal. The needs of her two children were assessed in April 2002. The assessment identified a need for accommodation as their only need.   G comes from Holland. She has a son who was born in May 1999. In June 2000 G and her son came to England and applied to the council for assistance with housing. Her application was initially refused on the ground that she was not "habitually resident" in this country. After subsequent interviews with council officials the council offered to pay the cost of G's return to Holland with her son and to provide temporary accommodation and financial assistance in the meantime. But G refused to return to Holland and insisted that the council's duty to her son, a "child in need", obliged the council to provide her with permanent housing accommodation where she and her son could live together. Whether or not there has been a formal assessment of the needs of G's child, it is obvious that the child's needs include the need to live with his mother and the need to have accommodation appropriate to his tender age.   Both G's case and W's case have, therefore, the common feature that the children's need for suitable housing and their need to live with their mothers, needs that the council is said to be under a mandatory, statutory obligation to meet, are being used by the mothers as a stepping stone by means of which the mothers can obtain housing to which they would not otherwise be entitled.   Mr Howell QC, who appeared both for G and W, based his case not only on section 17(1) of the 1989 Act but also, and I think mainly, on section 23(6) of the Act. Section 23 specifies a number of specific duties resting on a local authority in relation to any child "whom they are looking after". Section 22(1) (as amended) says that references to a child whom a local authority is looking after are references either to a child in the local authority's care (paragraph (a)) or to a child who is "provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970" (paragraph (b)). Section 23(6) says that "any local authority looking after a child shall make arrangements to enable him to live with - (a) [the parent of that child] unless that would not be reasonably practicable or consistent with his welfare".   A short answer to Mr Howell's section 23(6) case is, in my opinion, that none of the G or W children was a child whom the council was "looking after" within the meaning ascribed to that expression by section 22(1). None was a child in the local authority's care. And although each, with his mother, was in temporary accommodation provided by the council, the temporary provision of accommodation while a local authority is considering a housing or support application made by the parent who is looking after the child does not, in my opinion, constitute the "provision of accommodation" referred to in section 22(1)(b). A contrary conclusion would, in my view, be inconsistent with the content of sub-sections (1) and (2) of section 23.   But, in any event, section 23(6) does not oblige a local authority to provide housing to the person with whom the child being looked after by the local authority is to live. As it was put by my noble and learned friend Lord Nicholls of Birkenhead, section 23(6) is concerned with placement of the child, not with housing (see paragraph 38).   Accordingly, Mr Howell's case for G and W comes to depend on the same point as Mr Gordon's case for A. Does section 17(1) impose a mandatory duty on a local authority to take specific steps that the assessed, or obvious, needs of a child in need require to be taken regardless of the financial resources of the council or the cost of those steps? It is accepted that nowhere in the 1989 Act is it expressly stated that if a child's assessed needs include the provision of proper accommodation, and that he or she continue living with his parent (or parents), the local authority must, regardless of cost, provide the parent (or parents) with the requisite accommodation. Is that obligation to be implied?   Somewhat similar questions have arisen in other contexts. The decision of this House in R v East Sussex County Council, Ex p Tandy [1998] AC 714 was relied on by the appellants. The case concerned educational needs. Some children have special educational needs. A statement of the special educational needs of the Ex p Tandy child said that she needed five hours of home tuition per week. The local authority decided, for cogent financial reasons, to reduce the home tuition to three hours per week. The issue was whether that decision was lawful. Section 298(1) of the Education Act 1993 said that each local education authority: "shall make arrangements for the provision of suitable … education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them." And sub-section (7) said that "suitable education" meant education "suitable to [the child's] age, ability and aptitude and to any special educational needs he may have".   It was accepted before the House that section 298(1) imposed a duty on the council owed to each individual child in its area to provide that child with "suitable education". "Suitable education" was defined by reference to wholly objective educational criteria that did not include the cost of the provision of the education. Lord Browne-Wilkinson, with whose opinion each of the other members of the Appellate Committee agreed, said this, at p 749: "the county council has as a matter of strict legality the resources necessary to perform its statutory duty under section 298. Very understandably it does not wish to bleed its other functions of resources so as to enable it to perform the statutory duty under section 298 .… The argument is not one of insufficient resources to discharge the duty but of a preference for using the money for other purposes. To permit a local authority to avoid performing a statutory duty on the grounds that it prefers to spend the money in other ways is to downgrade a statutory duty to a discretionary power …. Parliament has chosen to impose a statutory duty, as opposed to a power, requiring the local authority to do certain things. In my judgment the courts should be slow to downgrade such duties into what are, in effect, mere discretions over which the court would have very little real control."   This approach was urged strongly on your Lordships by counsel for the appellants. In my opinion, however, there is a key difference between section 298(1) of the Education Act 1993 and section 17(1) of the 1989 Act. Section 298 did impose a specific duty owed to each individual child. The duty to each child was to make arrangements for the provision of "suitable education", as defined, to that child. Arrangements for the provision of something less was not a discharge of the statutory duty. In the present case, by contrast, the fundamental issue is whether section 17(1) imposes on a local authority a specific duty to an individual child in need to meet every assessed, or obvious, need of that child. Reliance on Lord Browne-Wilkinson's remarks in Ex p Tandy begs that question. No doubt it is right that a statutory duty must not be downgraded to a mere discretionary power. But before complaints can be made that that is what the councils are contending for in the present cases, it is necessary to identify the statutory duty. If the appellants are correct that the councils owed them a statutory duty under section 17(1) to provide them and their children with the requisite housing, there is an end of the respondent councils' cases. No question of downgrading the duty would arise.   R v Kensington and Chelsea Royal London Borough Council, Ex p Kujtim [1999] 4 AER 161 was a decision of the Court of Appeal concerning the effect of section 21(1) of the National Assistance Act 1948, as amended. The court concluded that section 21(1)(a) of the 1948 Act, coupled with paragraph 2 of the Secretary of State's Approvals and Directions made under section 21(1), imposed a continuing duty on the respondent council to meet the appellant's assessed need for accommodation but that, in the circumstances, the council had discharged its duty. I do not think this case is of assistance to the present appellants. Section 21(1), as amended, said that - "a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing - (a)  residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them …" and under paragraph 2(2) of the Approvals and Directions the Secretary of State directed local authorities to make arrangements to provide residential accommodation to certain persons in certain circumstances. A person able to bring himself within the specified category was plainly, in my opinion, owed a statutory duty. There is no equivalent in the present case to the statutory direction given by the Secretary of State under which the specific duty owed to Mr Kujtim arose.    In my opinion, in agreement with my noble and learned friend Lord Hope of Craighead, section 17(1) does not impose a mandatory duty on a local authority to take specific steps to satisfy the assessed needs of a child in need. If a mandatory order against a local authority to take some specific step is sought the applicant must either point to a specific duty to take the step imposed elsewhere in the Act (or in other legislation) or must invalidate the local authority's decision to decline to take the step on the usual reasonableness and proportionality grounds available in judicial review challenges. In my opinion, the appellants' appeals, in so far as they are based on a mandatory duty arising under section 17(1), should be dismissed. I am in full and respectful agreement with the reasons given by my noble and learned friend Lord Hope of Craighead on this issue.   It is accepted by the respondent councils that they have the requisite power to provide housing to the appellants in order to meet the needs of their respective children. The question, therefore, arises whether the councils' decisions not to exercise this power in the manner requested by A, G and W can be impugned. Different considerations apply to the cases of G and W on the one hand and of A on the other hand.   My noble and learned friend Lord Nicholls of Birkenhead has carefully and lucidly analysed the general policy adopted by Lambeth Borough Council, and no doubt of other councils, of dealing with the accommodation needs of homeless children by making accommodation available for the children but not for their parents as well (see paragraph 48 of his opinion). There is an undoubted duty, imposed by section 20 of the 1989 Act on local authorities, to provide accommodation for homeless children. A situation in which children may be sleeping rough in the streets or in cars or in garden sheds cannot be tolerated. Local authorities accept that this is so and, where necessary, accept the obligation to provide accommodation for any such children. But, so many councils believe, the provision of housing accommodation to the families of children in order to prevent the children from becoming homeless, would place an unacceptable financial burden on council resources. It is pointed out, in answer, that the cost of providing family accommodation to a child and his or her family may often be less, or at least not significantly more, than the cost of accommodating the child in a council home or with foster parents. So, given the child's need to go on living with his or her family and in particular with his or her parents if at all possible, the general policy of offering accommodation to the child alone is, it is argued, an unreasonable one that it is not lawful for a council to adopt.   The councils' response to this argument, based as it is on the comparative cost of accommodating only the children of the family as against the cost of providing accommodation for the children with their family, is that in most cases an indication given by the council that the children will be removed from their family and accommodated separately leads to the parents managing to find family accommodation for themselves and their children. If intentionally homeless parents, or other parents with no right to council housing, knew that, if they did nothing, the council would find itself obliged to provide them and their family with accommodation in order to discharge its obligation to safeguard the children of the family from homelessness, a large number of these parents would do nothing. A coach and horses would be driven through the housing legislation under which those who have become intentionally homeless cannot call upon the council to re-house them.   It is, of course, correct that each case must be considered on its merits but, in general, the council's response is, in my opinion, a reasonable one. It is suggested that a distinction might be drawn between cases where the child is old enough not to be significantly upset at being separated from his or her parents and cases where the child would be significantly upset by the separation. The general policy referred to could be endorsed for the former class but not, it is suggested, for the latter class. I do not believe that the suggested distinction is either a practicable or a reasonable one. Your Lordships have not been referred to any expert evidence identifying the criteria which would be applied in order to decide into which class a particular child fell and, in its absence, I regard it as legitimate to draw upon my own experience of children. That experience leads me to believe that the class intended to contain children old enough not to be significantly upset at being separated from their parents against their and their parents' wishes would be a class with very few members.   Moreover, on what sort of evidence would a local authority, or a judge, be expected to decide whether or not a child would be significantly upset at being separated from its parents? The parents would be bound to say that the child would be very significantly upset. So would the child, if it was of an age to be asked. And what child expert or other witness would contradict them? On what basis could a local authority or judge decide that the parents' evidence to that effect should not be accepted?   The distinction that it is suggested should be drawn is, in my opinion, simply a concealed means of outlawing the general policy adopted by Lambeth and other councils. For my part I can see nothing the matter with that general policy. If a parent or parents have become intentionally homeless or for any other reason are not entitled to look to the local authority for housing accommodation, the local authority is entitled, in my opinion, to adopt a general policy under which it is made clear that it will make accommodation available to the children of the family in order to prevent the children becoming homeless, but will not permit the parents to use the children as stepping stones by means of which to obtain a greater priority to be re-housed than that to which they would otherwise be entitled.   There is general agreement among your Lordships that the appeals of G and W should be dismissed. But, for my part, I do not consider that the general policy referred to above needs adjustment.      143.  As to A, the local authority has, some time ago, accepted her priority need for rehousing. But suitable accommodation has not yet been found. No case has been presented to the courts below or to your Lordships to justify the conclusion that either the social services department or the housing department of the local authority has unreasonably failed to exercise any of the relevant powers available to them. The case presented was that the council was under a mandatory duty under section 17(1) to provide accommodation to the family in accordance with the assessed needs of the autistic children. That case, in my opinion, fails and there is no other case that has been presented. I would dismiss the appeal in A's case for the reasons given by my noble and learned friend, Lord Hope of Craighead with which I am in complete and respectful agreement.

Case T-196/06 Edison SpA v European Commission (Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Imputability of the unlawful conduct – Duty to state reasons) Summary of the Judgment 1. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment (Art. 81 EC) 2. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules – Decision relating to several addresses – Need for an adequate statement of reasons, in particular with respect to the entity which must bear the liability for an infringement (Arts 81 EC and 253 EC) 3. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules – Statement of reasons based on a matter not set out in the statement of objections – Not permissible (Arts 81 EC and 253 EC) 4. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules – Correction of an error of reasoning during the proceedings before the Court – Not permissible (Arts 81 EC and 253 EC) 5. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules – Taking into account information not contained in the decision upholding the liability of an undertaking in order to assess the legality of the reasoning for the decision – Not permissible (Arts 81 EC and 253 EC) 1. The conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities. In such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC. In the specific case of a parent company holding 100% of the capital of a subsidiary which has infringed the European Union competition rules, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, secondly, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary. In those circumstances, it is sufficient for the Commission to prove that the entire capital of a subsidiary is held by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as liable for the infringement at issue, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market. In order to ascertain whether a subsidiary determines its conduct on the market independently, account must be taken of all the relevant factors relating to economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list. (see paras 26-30) 2. As regards the statement of reasons for a Commission decision applying Article 81 EC, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned and it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision. In particular, it is not required to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance. Where a decision taken in application of Article 81 EC relates to several addressees and raises a problem of imputing liability for the infringement, it must include an adequate statement of reasons with respect to each of the addressees, in particular those of them who, according to the decision, must bear the liability for the infringement. Thus, with regard to a parent company held liable for the offending behaviour of its subsidiary, such a decision must contain a detailed statement of reasons for imputing the infringement to that company. In that context, where a parent company relies not only on the fact that it was a holding company managing its subsidiary as a straightforward financial investment, through an interposed holding company, but also pleads a body of special circumstances characterising the links between the companies concerned at the time of the infringement, and the matters submitted by that company are not mere contention, but contain detailed information on the functioning of the holding company, accompanied by statements by the directors of the companies concerned, exchanges of correspondence with third parties and a number of internal documents from the companies concerned, dating from the period of the infringement, the Commission is required to adopt a position on those arguments, examining whether, in the light of all the relevant factors relating to economic, organisational and legal links between the companies concerned, the parent company has demonstrated that its subsidiary acted independently, and to set out, if necessary, the reasons why it is of the view that the matters submitted by the parent company are inadequate to rebut the presumption at issue. The Commission’s duty to state reasons for its decision on this issue is clearly evident from the rebuttable nature of the presumption relating to the exercise of decisive influence by a parent company over its wholly owned subsidiary, in order to rebut which the parent company is required to produce evidence of all the economic, organisational and legal links between itself and its subsidiary. (see paras 57-58, 71, 73, 75-77) 3. A matter which was not set out in the statement of objections and on which an undertaking which is the addressee of a Commission decision finding an infringement of the competition rules has not had the chance to make known its view during the administrative procedure, cannot be regarded as admissible as evidence against that undertaking. Consequently, the Commission cannot rely on it for the purposes of the reasoning of the contested decision. (see para. 83) 4. The statement of reasons for a Commission decision applying Article 81 EC must in principle be notified to the party concerned at the same time as the decision adversely affecting it. A failure to state the reasons cannot thus be remedied by the fact that the party concerned learns the reasons for the decision during the proceedings. Therefore, the failure to state reasons at issue cannot be remedied in the course of the proceedings. (see paras 89-90) 5. In respect of actions contesting Commission decisions imposing fines on undertakings for infringement of the competition rules, the General Court, in the context of its unlimited jurisdiction, is competent to assess the appropriateness of the amount of the fines. Whereas that assessment may, in some circumstances, justify the taking into consideration of additional information, that consideration does not apply in the context of the review of whether the duty to state reasons has been observed in the decision finding the infringement, when the legality of that decision is being reviewed. Accordingly, although the General Court may find that the Commission committed an infringement of the duty to state reasons in the context of the determination of fines imposed for infringements of Article 81(1) EC, while stating that, in so far as the measure or decision upheld by that institution is to be confirmed as to its substance, that infringement does not lead either to the annulment of the contested decision or to an alteration of the amount of the fines, that appraisal cannot be transposed concerning the review of the legality of a Commission decision inasmuch as the Commission upheld the liability of the undertaking concerned. (see paras 91-93) JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition) 16 June 2011 (*) (Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Imputability of the unlawful conduct – Duty to state reasons) In Case T‑196/06, Edison SpA, established in Milan (Italy), represented by M. Siragusa, R. Casati, M. Beretta, P. Merlino and E. Bruti Liberati, lawyers, applicant, v European Commission, represented initially by V. Di Bucci and F. Amato, and subsequently by V. Di Bucci and V. Bottka, acting as Agents, defendant, ACTION for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 – Hydrogen peroxide and perborate), in so far as it concerns the applicant, and, in the alternative, an application for reduction of the amount of the fine, THE GENERAL COURT (Sixth Chamber, Extended Composition), composed of V. Vadapalas (Rapporteur), acting for the President, M. Prek, A. Dittrich, L. Truchot and K. O’Higgins, Judges, Registrar: J. Palacio González, Principal Administrator, having regard to the written procedure and further to the hearing on 2 September 2010, gives the following Judgment Background to the dispute 1 The applicant, Edison SpA (formerly Montedison SpA), is a company incorporated under Italian law which, through Montecatini SpA, held, until 20 December 2000, 100% of the capital of Ausimont SpA, manufacturer of hydrogen peroxide (‘HP’) and sodium perborate (‘PBS’). 2 Between December 2000 and May 2002, the applicant was the majority shareholder in Ausimont. In May 2002, Ausimont was sold to the Solvay SA group and became, from 1 January 2003, Solvay Solexis SpA. 3 In November 2002, Degussa AG informed the Commission of the European Communities of the existence of a cartel in the HP and PBS markets and requested the application of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3). 4 Degussa supplied to the Commission material evidence which enabled it to carry out investigations on 25 and 26 March 2003 at the premises of certain undertakings. 5 On 26 January 2005, the Commission sent a statement of objections to the applicant and the other undertakings concerned. 6 After the hearing of the undertakings concerned, the Commission adopted Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, EKA Chemicals AB, Degussa, the applicant, FMC Corp., FMC Foret SA, Kemira Oyj, L’Air liquide SA, Chemoxal SA, SNIA SpA, Caffaro Srl, Solvay, Solvay Solexis, Total SA, Elf Aquitaine SA and Arkema SA (Case COMP/F/38.620 – Hydrogen peroxide and perborate) (‘the contested decision’), a summary of which is published in the Official Journal of the European Union of 13 December 2006 (OJ 2006 L 353, p. 54). It was notified to the applicant by letter of 8 May 2006. The contested decision 7 The Commission stated in the contested decision that the addressees thereof had participated in a single and continuous infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA), regarding HP and the downstream product, PBS (recital 2 of the contested decision). 8 The infringement found consisted mainly of competitors exchanging commercially important and confidential market and company information, limiting and controlling production as well as potential and actual production capacities, allocating market shares and customers and fixing and monitoring adherence to target prices. 9 The applicant was held to be ‘jointly and severally’ liable for the infringement with Solvay Solexis (recital 423 of the contested decision). 10 For the purpose of calculating the amount of the fines, the Commission applied the methods set out in its guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) ECSC (OJ 1998 C 9, p. 3). 11 The Commission determined the basic amount of the fines by reference to the gravity and duration of the infringement (recital 452 of the contested decision), which was described as very serious (recital 457 of the contested decision). 12 As part of a differentiating approach, the applicant and Solvay Solexis were placed in the third of four categories, in respect of which the starting amount was EUR 20 million (recitals 460 to 462 of the contested decision). 13 In order to ensure a sufficiently deterrent effect, a multiplier of 1.5 was applied to this starting amount, in view of the applicant’s high turnover. Since Solvay Solexis had been transferred to a different undertaking, this multiplier was not applied to its fine (recital 463 of the contested decision). 14 Since, according to the Commission, the applicant participated in the infringement from 12 May 1995 to 31 December 2000, that is, for a period of five years and seven months, the amount of its fine was increased by 55% in respect of its duration (recital 467 of the contested decision). 15 The Commission increased the amount of the applicant’s fine by 50% in respect of aggravating circumstances, in view of the recurrence of the infringement as found in Commission Decision 94/599/EC of 27 July 1994 relating to a proceeding pursuant to Article [81 EC] (Case 31.865 – PVC) (OJ 1994 L 239, p. 14) (recitals 469 and 496 of the contested decision). 16 Under Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), the Commission reduced the amount of the fine imposed jointly and severally on Solvay Solexis to 10% of its global turnover in 2005 (recital 498 of the contested decision). 17 Article 1(e) and (n) of the contested decision state that the applicant and Solvay Solexis infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in the infringement concerned from 12 May 1995 to 31 December 2000. 18 In Article 2(c) of the contested decision, the Commission imposed on the applicant a fine of EUR 58.125 million, for which Solvay Solexis was held to be ‘jointly and severally’ liable to the amount of EUR 25.619 million. Procedure and forms of order sought 19 By application lodged at the Registry of the Court on 19 July 2006, the applicant brought the present action. 20 The composition of the Chambers of the Court having been altered, the Judge-Rapporteur was assigned to the Sixth Chamber and, after the parties had been heard, the case was referred to the Sixth Chamber (Extended Composition). 21 As two members of the extended Chamber were unable to sit in the present case, the President of the Court designated two other judges to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure of the Court. 22 On hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure. The parties presented oral argument and replied to the questions put by the Court at the hearing which took place on 2 September 2010. 23 The applicant claims that the Court should: – annul the contested decision, in so far as it concerns the applicant; – in the alternative, annul or reduce the amount of the fine imposed upon it; – order the Commission to pay the costs. 24 The Commission contends that the Court should: – dismiss the action; – order the applicant to pay the costs. Law Preliminary observations 25 Since the applicant’s arguments in support of the claims for annulment are in essence directed against the finding that it is liable for the unlawful conduct of its subsidiary, it is appropriate first of all to recall the relevant case-law. 26 It is settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (see Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 58 and the case‑law cited). 27 In such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC (Akzo Nobel and Others v Commission, paragraph 26 above, paragraph 59). 28 In the specific case of a parent company holding 100% of the capital of a subsidiary which has infringed the European Union competition rules, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, secondly, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary (see Akzo Nobel and Others v Commission, paragraph 26 above, paragraph 60 and the case-law cited). 29 In those circumstances, it is sufficient for the Commission to prove that the entire capital of a subsidiary is held by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as liable for the infringement at issue, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see, to that effect, Akzo Nobel and Others v Commission, paragraph 26 above, paragraph 61 and the case‑law cited). 30 In order to ascertain whether a subsidiary determines its conduct on the market independently, account must be taken of all the relevant factors relating to economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (Akzo Nobel and Others v Commission, paragraph 26 above, paragraph 74; see also, to that effect, Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraph 65). 31 In the present case, in recitals 370 to 379 of the contested decision, the Commission observed that a parent company could be considered to be liable for the illegal conduct of a subsidiary in so far as the latter does not decide independently upon its own conduct on the market. It stated that it was correct in presuming that a wholly-owned subsidiary carries out, in all material respects, the instructions of its parent company, that latter company being able to rebut the presumption by evidence to the contrary. 32 Concerning the imputation of Ausimont’s unlawful conduct to the applicant, the Commission stated, first, in recital 416 of the contested decision, that Ausimont was its ‘directly controlled’ subsidiary at the time of the infringement. 33 In recital 417 of the contested decision, it referred to the arguments used by the applicant to challenge that imputation. 34 In recital 418 of the contested decision, the Commission stated that, contrary to the arguments submitted by the applicant, the complete control of a subsidiary was enough to prove a parent company’s liability, in the absence of an argument rebutting the resulting presumption. 35 As regards, next, the arguments put forward by the applicant in support of Ausimont’s independence, the Commission observed, in recitals 419 to 421 of the contested decisions, that ‘other matters indicat[ed] the contrary’ referring, first, to the circumstances of the participation of the applicant’s directors in the meeting of March 1994 with Degussa’s representatives and, secondly, to the fact that one member of Ausimont’s board of directors was also a member of Montecatini’s board, and to the circumstances of the restructuring of the group in December 2000. The Commission held, in recital 422 of the contested decision, that ‘other matters’ submitted by the applicant, inter alia the fact that it was not aware of the cartel, were not sufficient to rebut the presumption. 36 Lastly, the Commission upheld the applicant’s liability, having regard to its ‘involvement … in Ausimont’s commercial transactions’ and to its 100% shareholding in the latter (recital 423 of the contested decision). 37 Disputing this assessment, the applicant essentially raises three pleas in law, alleging, first, infringement of its rights of defence, secondly, infringement of the duty to state reasons and, thirdly, infringement of Article 81 EC. 38 The Court is of the view that it is appropriate to examine the second plea first. The alleged infringement of the duty to state reasons Arguments of the parties 39 In the context of the second plea, the applicant submits, first, that the finding that it had a 100% shareholding in Ausimont is not a sufficient ground to explain how liability for the infringement at issue could be imputed to it and that the reasoning of the contested decision is inconsistent and inadequate, so far as concerns the two other factors upheld in recitals 419 to 421 of that decision. 40 In particular, concerning the meeting of 16 March 1994, relied upon in recital 420 of the contested decision, the applicant provided the Commission, in its reply of 13 April 2006, with a number of items of evidence demonstrating that the circumstances of the meeting at issue could not serve as a basis for its liability for the infringement at issue but that, on the contrary, they confirmed the independence of its subsidiary. 41 Secondly, the applicant claims that it submitted, in its reply to the statement of objections, evidence of Ausimont’s independence. The Commission rejected that evidence as inadequate without setting out the grounds for that rejection. The contested decision is vitiated by a complete failure to state reasons on this aspect. The Commission did not even examine any of the points of fact and of law raised by the applicant to demonstrate Ausimont’s independence. 42 In the presence of that evidence, the Commission was not able to base its findings on a ‘purely formal matter’, the fact that the applicant indirectly held the entire capital of Ausimont, and on only two factual circumstances, namely the meeting of 16 March 1994 and the fact that one member of Ausimont’s board of directors was also a member of Montecatini’s board. The arguments put forward by the Commission for the first time before the Court cannot be taken into account in this respect. 43 Since the Commission imputed liability to the applicant on the basis of a presumption, it should have analysed the evidence put forward by the applicant with special care. Its rejection of it without stating any reasons has the result of changing the straightforward presumption into an irrebuttable presumption, implying the applicant’s strict liability. 44 The Commission states in reply that the applicant’s complete control of Ausimont gives rise to a presumption of its decisive influence over the conduct of that subsidiary. The factors mentioned in recitals 420 and 421 of the contested decision served as supplementary evidence of that influence, which was already apparent from the presumption at issue. 45 As regards the first factor, the information provided by Degussa and the applicant shows that they jointly organised the meeting of 16 March 1994, and that the chairman of Ausimont was invited ‘on the spur of the moment’. His main objective was to discuss the possible purchase by Degussa of Ausimont’s activities in the sector at issue, and Ausimont’s project to build a new factory at Bitterfeld (Germany). The fact that this meeting was organised by the applicant constitutes evidence of its influence over Ausimont’s activities. 46 Contrary to the applicant’s argument, Degussa’s note shows that the HP and PBS sector in general was also discussed. That is confirmed by Ausimont’s chairman. Although the meeting in question took place approximately one year before the beginning of the infringement, there is no reason to hold that it is not demonstrative of the relationship between the applicant and Ausimont during the infringement, since the structure of the group did not change in the meantime. 47 As regards the second factor, the fact that Ausimont’s chairman was a member of Montecatini’s board of directors constitutes evidence of the applicant’s intention to guarantee the stability of the chain of control between it and Ausimont. 48 The applicant’s argument concerning the lack of any link in terms of employees between itself and Ausimont is, moreover, belied by the fact, evident from Solvay Solexis’s reply to a request for information, that the applicant’s chairman and one member of its board of directors were members of Ausimont’s board of directors for part of the period of the infringement. Although this matter was not included in the contested decision, the Commission contends that it is entitled to rely upon it in response to the applicant’s argument. 49 As regards the reasons for the rejection of the contrary evidence, the Commission states that its duty to state reasons does not extend to the obligation to examine all the issues of fact and of law which were dealt with during the administrative procedure. It contends that none of the matters put forward by the applicant in its reply to the statement of objections proved Ausimont’s independence. 50 The Commission contends that it stated sufficient reasons for its decision and, inter alia, that it explained adequately why it had rejected the applicant’s arguments. In particular, in recitals 419 to 421 of the contested decision, it responded to the applicant’s arguments that Ausimont was independent, drawing attention in that connection to the fact that there was contrary evidence, namely the meeting of 16 March 1994 and the function carried out by Ausimont’s chairman on Montecatini’s board of directors. 51 The matters submitted by the applicant were, in any event, inadequate. The fact that a subsidiary’s activity is not the core activity of the group is not relevant evidence. The applicant’s participation in the restructuring of the group logically led to its involvement in the most significant strategic choices, specifically to prevent those choices from prejudicing the restructuring of the group. The fact that the parent company does not directly or indirectly oversee the day-to-day business of the subsidiary does not establish the latter’s independence. It is enough, for a finding of decisive influence, that the parent company influences the fundamental strategic choices of the subsidiary. 52 The control of the group as described by the applicant, exercised through three committees which met the directors of the subsidiaries each quarter, cannot be compared with the management of a shareholding by a holding company which is purely financial. Furthermore, according to the statement of Ausimont’s chairman, the applicant was informed of the ‘plans and budget of the Ausimont group’, the ‘general objectives’ and the ‘general principles concerning human resources’, and was in charge of ‘covering the financial requirements’ of Ausimont for the purposes of the implementation of its most significant strategic projects. 53 The fact that, under the statutes of the company, Ausimont’s board of directors had a wide discretion as regards commercial activities does not constitute evidence of its independence, in particular in the light of the fundamental strategic choices. The applicant took part in the strategic decisions concerning Ausimont’s plans for a new factory at Bitterfeld and a joint venture in the United States. 54 The alleged lack of evidence of interference in the minutes of the meetings of the applicant’s and Ausimont’s board of directors, which indeed were not adduced, is not sufficient, since the exercise of that influence would not necessarily be revealed from such minutes. 55 Thus, according to the Commission, even if the contested decision is vitiated by defective reasoning so far as concerns the rejection of the arguments put forward by the applicant in its reply to the statement of objections, it would be inappropriate to annul it, since that annulment could only lead to the adoption of another decision identical in substance to the decision annulled (Joined Cases T‑217/03 and T‑245/03 FNCBV and Others v Commission [2006] ECR II‑4987, paragraph 363). Findings of the Court 56 According to settled case-law, the statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent European Union Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited). 57 The Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned and it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision. In particular, it is not required to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance (Case T‑349/03 Corsica Ferries France v Commission [2005] ECR II‑2197, paragraph 64; see also, to that effect, Commission v Sytraval and Brink’s France, paragraph 56 above, paragraph 64). 58 Where, as in the present case, a decision taken in application of Article 81 EC relates to several addressees and raises a problem of imputing liability for the infringement, it must include an adequate statement of reasons with respect to each of the addressees, in particular those of them who, according to the decision, must bear the liability for the infringement. Thus, with regard to a parent company held liable for the offending behaviour of its subsidiary, such a decision must contain a detailed statement of reasons for imputing the infringement to that company (see, to that effect, Case T‑327/94 SCA Holding v Commission [1998] ECR II‑1373, paragraphs 78 to 80). 59 It is apparent from recitals 416 to 423 of the contested decision that imputing the unlawful conduct to the applicant relies on the finding of the actual exercise of its decisive influence over Ausimont, stemming from a presumption linked to its complete control of that subsidiary through an interposed company, since that presumption has not, according to the Commission, been rebutted by the applicant. 60 The applicant claims that, in the contested decision, the Commission did not set out sufficient reasons as regards the finding of its liability, in particular in so far as it did not clarify the reasons for the rejection of the evidence adduced in order to rebut the presumption. 61 The file shows that the applicant, in its reply to the statement of objections, put forward specific arguments to demonstrate Ausimont’s independence. 62 First of all, it maintained that at the time of the infringement it had the role of a non-operational holding company of an extremely diversified group, stating that it only resumed its activity as a generator and supplier of electricity in 2002. In this connection it adduced a summary of VAT (value added tax) returns relating to its own company’s activity and that of the company through which it controlled Ausimont, Montecatini, covering the entire duration of the infringement. 63 It stated that the holding activity did not involve it in the management of the subsidiaries, control of which was restricted to verification of the financial results through internal and external audits. It relied, in that regard, on documents dating from the time of the infringement concerning the organisation of the internal audit, drawn up by its management. 64 It then invoked the special circumstances of the group’s severe financial difficulties, stating that all the directors of the group had been replaced in 1993 and that its new directors had put in place a plan for divestiture of the group’s non-strategic activities, to cover the period from 1993 to 2001 and intended to reduce the financial imbalance and to avoid bankruptcy. It stated that the consequences of that plan were that the companies in the group would be managed completely independently, in particular Ausimont, which had been active in the field not regarded as essential and whose divestiture was in progress. 65 In support of those arguments, the applicant set out information on the functioning of its group, which consisted in 1995 of 932 companies active in various sectors of the economy and which had undergone significant reorganisation, completed in 2002, the aim of which was to concentrate its activities on the energy sector. 66 In addition, it submitted a number of items of evidence, namely the letter sent by one of its directors to third parties in 1995, stating inter alia that the ‘consolidated policy from now on [was] to delegate all operational management to [the] companies [in the group]’, the statement from Ausimont’s former chairman giving evidence of his independence in matters of commercial policy, a copy of Ausimont’s statutes, according to which its board of directors had been vested with ‘the widest possible powers for the ordinary and extraordinary management of the company’ and the ‘power to take any action it deem[ed] necessary to achieve the mission of the company’, and the minutes of Ausimont’s board of directors of 27 May 1996, conferring on its chairman ‘full powers and the right of ordinary and extraordinary management of the company’. 67 The applicant also stated that Ausimont had all the structures and departments necessary to manage itself independently, that the minutes of the meetings of the applicant’s board of directors did not contain any evidence of discussion relating to the subsidiaries’ commercial policy and that those of Ausimont’s board of directors did not contain any reference to instructions it might have received concerning commercial policy, and offered to produce all those documents at the Commission’s request. 68 Lastly, the applicant referred to the statements of Solvay Solexis, repeated in its reply to a request for information sent by the Commission and forming part of the administrative file, from which it is apparent that Ausimont’s board of directors had a wide discretion as regards commercial activities at the time of the infringement. 69 In recital 417 of the contested decision, the Commission reviewed the arguments put forward by the applicant. 70 It then stated, in recital 419 of the contested decision, that ‘the argument submitted by [the applicant] regarding [its subsidiary’s] independence’ was inconsistent with the matters set out in recitals 420 and 421 of the contested decision. Lastly, in recital 422 of the contested decision, it concluded that ‘other matters’ submitted by the applicant were inadequate to rebut the presumption at issue. 71 That reasoning does not address the arguments put forward by the applicant, but merely refers to certain additional items of evidence set out in recitals 420 and 421 of the contested decision. Consequently, the abovementioned grounds for the contested decision do not set out the reasons why the Commission is of the view that the matters submitted by the applicant were inadequate to rebut the presumption at issue. 72 Furthermore, it must be held that, although the Commission is not obliged to adopt a position on all the matters relied on by the party concerned, in particular where those are manifestly irrelevant or insignificant or plainly of secondary importance (see paragraph 57 above), in the present case, in contrast to what is maintained by the Commission, the matters put forward by the applicant cannot be regarded as insignificant in the light of the assessment of Ausimont’s independence. 73 The applicant did not only rely on the fact that it was a holding company managing its subsidiary as a straightforward financial investment, through an interposed holding company, but also pleaded a body of special circumstances characterising the links between the companies concerned at the time of the infringement at issue. 74 In particular, it submitted detailed arguments that the new directors of the holding company, which took over the management of the group following its severe financial difficulties in 1993, adopted reorganisational measures which involved choosing to allow the companies in the group to act independently, taking into account, first, the objectives of the holding company in the face of the financial difficulties and, secondly, the diverse nature of the group’s activities. 75 The matters submitted by the applicant are not mere contention, but contain detailed information on the functioning of the holding company, accompanied by statements by the directors of the companies concerned, exchanges of correspondence with third parties and a number of internal documents from the companies concerned, dating from the period of the infringement. 76 In those circumstances, the Commission was required to adopt a position on the applicant’s contrary arguments, examining whether, in the light of all the relevant factors relating to economic, organisational and legal links between the companies concerned, the applicant had demonstrated that its subsidiary acted independently on the market. 77 The Commission’s duty to state reasons for its decision on this issue is clearly evident from the rebuttable nature of the presumption at issue, in order to rebut which the applicant was required to produce evidence of all the economic, organisational and legal links between itself, the interposed company, and the subsidiary. 78 Moreover, the failure to state reasons at issue cannot be remedied by the reference made to the evidence set out in recitals 420 and 421 of the contested decision. 79 First, as regards the circumstances of the applicant’s representatives’ participation in the meeting of 16 March 1994, which gave rise inter alia to discussions on the continuation of an investment project by Ausimont, and on the possible transfer of its activities (recital 420 of the contested decision), it is possible that the interference of the parent company in the strategic choices of its subsidiary indicates the exercise of a decisive influence. 80 Nevertheless, by relying on the meeting at issue as evidence of the exercise of influence on Ausimont, the Commission did not adopt a position on the contrary arguments submitted by the applicant in its reply, of 13 April 2006, to the request for information sent to it on 4 April 2006, that is, one month before the adoption of the contested decision. 81 In this connection, the applicant stated inter alia in that reply, referring to Degussa’s note relating to the meeting at issue, to the statement of one of its former directors and to that of a former chairman of Ausimont, that its managers who took part in the meeting at issue had just taken up their posts following a period of severe financial difficulties, that they regarded that meeting as a courtesy meeting and that they were not able to engage in discussion with full knowledge of the facts. It argued that its company had found itself, at the material time, in administration, ‘supervised’ by creditor banks, which had become its principal shareholders and which had to give their authorisation for any investment above a certain threshold. That justified, on any view, the presence of the directors of the holding company at discussions concerning the investment project at issue and, a fortiori, at those concerning the possible transfer of Ausimont’s activities. Lastly, the applicant pointed out that the meeting at issue took place more than a year before the start of the infringement and could therefore not serve as direct evidence of influence exercised during the period of the infringement. 82 The Commission did not reply to those arguments, merely stating that the applicant had admittedly ‘confirmed that Ausimont’s interest was not simply financial, but ha[d] submitted solely a statement [from Ausimont’s former chairman] which does not add any new evidence to change [its] view’ (recital 420 of and footnote 391 to the contested decision). 83 Secondly, so far as concerns the matter put forward in recital 421 of the contested decision, namely the fact that a member of Ausimont’s board of directors was also on the board of Montecatini, it must be observed that, since this is, as the Commission acknowledges in the defence, a matter which was not set out in the statement of objections and on which the applicant has not had the chance to make known its view during the administrative procedure, it cannot be regarded as admissible as evidence against the applicant (see, to that effect, Joined Cases T‑191/98, T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission [2003] ECR II‑3275, paragraph 162 and the case‑law cited). Consequently, the Commission cannot rely on it for the purposes of the reasoning of the contested decision. 84 Moreover, even though, in recital 421 of the contested decision, the Commission also referred to certain circumstances of the restructuring of the group in December 2000, those facts essentially concern the transfer of Ausimont to the Solvay group, which took place after the end of the infringement. The Commission does not specify how the circumstances of that transfer show any evidence of the influence exercised by the applicant on Ausimont’s conduct at the time of the infringement. 85 In those circumstances, the Commission’s reference to the matters set out in recitals 420 and 421 of the contested decision is not such as to call into question the relevance of the applicant’s arguments alleging Ausimont’s independence and, therefore, is not a sufficient ground for the rejection of those arguments. 86 Concerning the Commission’s argument relating to the existence of other evidence of the influence exerted by the applicant over Ausimont, namely the fact that the chairman and one member of the board of directors of the applicant were members of Ausimont’s board of directors for part of the period of the infringement, and the applicant’s involvement in one of Ausimont’s projects relating to a joint venture in the United States, those matters were not set out in the contested decision and cannot therefore remedy the inadequacy of the reasons stated in it. 87 Having regard to the foregoing, it must be held that the Commission did not adopt a position on the basis of detailed reasons on the evidence adduced by the applicant in order to rebut the presumption following from its shareholding in Ausimont and, thus, has not given sufficient reasons for its finding as regards the imputation of the infringement at issue to the applicant. 88 Inasmuch as the Commission contends, in the defence, that the contrary evidence relied on by the applicant was, in any event, inadequate to demonstrate Ausimont’s independence, no assessment by the Commission of the evidence at issue is apparent from the grounds of the contested decision. This impedes the review of the validity of the contested decision on this aspect. 89 In addition, the statement of reasons must in principle be notified to the party concerned at the same time as the decision adversely affecting it and a failure to state the reasons cannot be remedied by the fact that the party concerned learns the reasons for the decision during the proceedings (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 463, and Case T‑25/04 González y Díez v Commission [2007] ECR II‑3121, paragraph 220). 90 Therefore, the failure to state reasons at issue cannot be remedied in the course of the proceedings. 91 In this connection, the Commission cannot legitimately rely on FNCBV and Others v Commission, paragraph 55 above, paragraphs 362 to 363, in which the General Court found that it committed an infringement of the duty to state reasons in the context of the determination of fines imposed for infringements of Article 81(1) EC, while stating that, in so far as the measure or decision upheld by that institution was to be confirmed as to its substance, that infringement did not lead either to the annulment of the contested decision or to an alteration of the amount of the fines. 92 That last appraisal, which was made in the context of the unlimited jurisdiction of the General Court regarding pecuniary sanctions, cannot be transposed to the present case, concerning the review of the legality of the contested decision, in so far as the Commission in it upheld the applicant’s liability for the infringement at issue. 93 Whereas the assessment of the appropriateness of the amount of the fines carried out by the General Court in the context of its unlimited jurisdiction may, in some circumstances, justify the taking into consideration of additional information, that consideration does not apply in the context of the review of whether the duty to state reasons has been observed in the decision finding the infringement, when the legality of that decision is being reviewed (see, to that effect, Case C‑297/98 P SCA Holding v Commission [2000] ECR I‑10101, paragraphs 54 and 55). 94 In the light of all the foregoing, the plea alleging infringement of the duty to state reasons must be upheld and the application for annulment of the contested decision, in so far as it concerns the applicant, must be granted. 95 Consequently, it is not necessary to rule on the first and third pleas. Costs 96 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs in accordance with the forms of order sought by the applicant. On those grounds, THE GENERAL COURT (Sixth Chamber, Extended Composition) hereby: 1. Annuls Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 – Hydrogen peroxide and perborate), in so far as it concerns Edison SpA; 2. Orders the European Commission to pay the costs. Vadapalas Prek Dittrich Truchot O’Higgins Delivered in open court in Luxembourg on 16 June 2011. [Signatures] * Language of the case: Italian.

Lady Justice Hale: This is the judgment of the court. The Commissioners of Customs and Excise ('the Commissioners') appeal by way of case stated from the decision of HHJ Simpson sitting with two justices in Maidstone Crown Court on 18 August 2002. They allowed Mr Newbury's appeal from the order of the Channel Magistrates' Court on 4 April 2002 that certain goods seized by customs officers on 7 April 2001 be condemned as forfeit. The case raises issues of everyday importance. If someone goes on a shopping trip to the continent and brings back tobacco or alcohol not for their own consumption but to pass on to family or friends in return for no more than what they cost are those goods liable to forfeiture? And if so, are other goods being brought back in the same car for their own use by other people in the car also liable to forfeiture? And is the car also liable to forfeiture even though neither the owner nor the driver was aware of the position? Obviously, for so long as the United Kingdom wishes to levy excise duties on tobacco and alcohol at a much higher rate than those levied elsewhere in the Community, it will be anxious to detect and deter those who take advantage of the improved communications between these islands and the continent of Europe to import such products without paying United Kingdom rates of duty. The underlying issue in this case is the part played by the individual's rights, both under European Community law and under the European Convention on Human Rights, in determining how far the authorities can go in pursuit of this legitimate aim. The facts found by the Crown Court are set out in the stated case: (a) On 7 April 2001 Mr Newbury arrived in the UK travelling with three others, Mrs Reed, Mr Hodivalla, and Mrs Spink: between them they imported into the UK the following excise goods ("the goods"): 8 kg handrolling tobacco, 3200 cigarettes, 50 cigarillos, 25.2 litres of beer, 9 litres of wine, 1.2 litres of spirits. (b) The goods were being carried in an Austin Montego car registration L402JNK. (c) They were stopped and checked by Customs. The officer, Miss Levitt was unable to recall why the car had been stopped. We found that it was random stop. (d) One of the fellow travellers, Mrs Reed, had purchased 30 pouches (1.5 kg) of the tobacco and 600 cigarettes, but they were not for her own use: she had been given the money to purchase them by her daughter and son-in-law, who had not travelled. She admitted this to the officers and we found this as a fact. (e) No UK duty had been paid on the goods. (f) The goods were valued at about £400 and the car was valued at some £3000. The car belonged to Mr Newbury's wife. The court, as is clear from the judgment of HHJ Simpson, accepted that Mr Newbury had told his passengers that they could only buy goods for their own consumption or gifts. The main issue before the Crown Court was whether liability to forfeiture depended upon the lawfulness of the seizure, which in turn depended on the lawfulness of the initial interception of the travellers. The Crown Court, relying on the Divisional Court's decision in R (Hoverspeed) v Commissioners of Customs and Excise [2002] EWHC 1630 Admin [2002] 3 WLR 1219, held that it did. Questions (1)(a) to (d) in the stated case relate to that question. It is now common ground in light of the Court of Appeal's decision in Hoverspeed [2002] EWCA 1804 ('Hoverspeed') that it did not. The second question in the stated case is: "Whether excise goods are liable to forfeiture in a case where they are imported without payment of duty and the importer or holder of the goods holds them not for herself, but for others who have given her the money to buy them, in the context of paras 17 and 18 of the judgment in Lindsay v Customs and Excise Commissioners [2002] 1 WLR 1766." The Crown Court held that they were not. The third question in the stated case is: "Whether, notwithstanding the apparently mandatory terms of s 141 of and paragraph 6 of schedule 3 to the Customs and Excise Management Act 1979, the Court has a residual discretion not to order condemnation of a thing which is liable to forfeiture, if it considers it disproportionate to do so." The Crown Court held that it had such a jurisdiction. It is also fairly plain from the transcript that they would have found forfeiture on the facts of this case disproportionate, although the ground of their decision was that the goods should not have been seized in the first place. The statutory provisions Section 49(1) of the Customs and Excise Management Act 1979 ('CEMA') provides when goods are liable to forfeiture: "(1) Where - (a) except as provided by or under the Customs and Excise Acts 1979, any imported goods, being goods chargeable on their importation with customs or excise duty, are, without payment of duty - (i) unshipped in any port, . . .. those goods shall . . .. be liable to forfeiture." Section 141(1) provides that (a) any vehicle used for the carriage of any thing liable to forfeiture, and (b) any other thing mixed, packed or found with the thing so liable, shall also be liable to forfeiture. Section 139(1) gives customs officers a discretion whether or not to seize any thing liable to forfeiture. Under schedule 3, para 3, if a thing is seized anyone claiming that the thing is not liable to forfeiture can give notice of his claim. Under para 6, the Commissioners then have to take proceedings for the condemnation of that thing by the court, and 'if the court finds that the thing was at the time of seizure liable to forfeiture the court shall condemn it as forfeited.' However, although the Commissioners must bring proceedings if the thing is to be forfeit, they also have power under section 152 (a) to stay or compound the proceedings, or (b) to restore subject to such conditions (if any) as they think proper, any thing forfeited or seized under the Act. Under section 14(1)(d) and schedule 5, para 2(1)(r) of the Finance Act 1994, a claimant can ask for a review if this is refused and under section 16 of the 1994 Act can challenge the review decision before the VAT Tribunal. The Tribunal's powers are defined by section 16(4): "(4) In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of an appeal tribunal on an appeal under this section shall be confined to a power where the tribunal are satisfied that the Commissioners or other person making that decision could not reasonably have arrived at it, to do one or more of the following, that is to say - (a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct; (b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision; and (c) in the case of a decision which has already been acted on pr taken effect and cannot be remedied by a further review, to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future." The scope of the Tribunal's powers has been much debated before us but is currently the subject of a pending appeal to the Court of Appeal in the case of Gora v Commissioners of Customs and Excise [2002] VAT and Duties Tribunal Reports 49. Mr Newbury's goods Ms Simor for the respondent has sensibly concentrated on the position of those whose goods were not liable to forfeiture under section 49(1): ie Mr Newbury, whose goods were only seized because they were mixed, packed or found with Mrs Reed's goods, and Mrs Newbury, whose car was only seized because it was used for the carriage of Mrs Reed's goods, under s 141(1)(b) and (a) respectively. The Commissioners have since decided to return Mrs Newbury's car but not Mr Newbury's goods. Ms Simor argues that for different reasons neither of these was liable to forfeiture and the Crown Court was right to decide that it had power to deal with the matter. Only if that fails does she argue the logically prior question of whether Mrs Reed's goods were liable to forfeiture under section 49(1) in the first place. Her argument in respect of Mr Newbury's goods is squarely based on European Community law. He has the right personally to import goods for his own use by virtue of article 8, EEC Council Directive 92/12 of 25 February 1992, on excise duties ('the Directive'). This reads: "As regards products acquired by private individuals for their own use and transported by them, the principle governing the internal market lays down that excise duty shall be charged in the Member State in which they are acquired." That is a directly effective right Community right. As such it takes precedence over any provision of domestic law which may conflict with it. Domestic courts have to give effect to that right: see European Communities Act 1972, s 2(1) and Amministrazione della Finanze dello Stato v Simmenthal [1978] ECR 629. Hence even though the terms of paragraph 6 of schedule 3 to CEMA appear to give the court in forfeiture proceedings no choice but to condemn the goods if they are 'liable to forfeiture' under the Act, the court must refuse to do this if to do so would be in breach of Mr Newbury's rights under Community law: see Conegate Ltd v HM Customs and Excise [1987] QB 254. Mr Barling QC for the Commissioners did not in the end dispute that last proposition. But he drew a distinction between charging tax upon the goods and forfeiting them. The Commissioners have not charged Mr Newbury any tax upon his goods. They have simply forfeited them. Their power to forfeit arises under section 141(1)(b), not under section 49(1). Section 141(1) is simply part of the domestic law aimed at enforcing the Community excise duty regime. It is for each member state to decide how to enforce that regime. This country has decided that whenever anything which should pay duty here is brought in, then anything brought in with it is liable to forfeiture even though it should not pay duty here. There is thus no conflict with Community law. That argument is deeply unconvincing. The right conferred by article 8 is not simply a right not to pay United Kingdom duty on the goods. It must encompass a right to import those goods without paying that duty. When a load of goods is brought into the country in circumstances where customs officers have reasonable suspicions which they wish to investigate, temporary seizure may well be justified. But the court is then charged with determining the facts with a view to deciding whether the goods are in fact liable to forfeiture. Once the court is satisfied as to which goods a person was himself bringing in for his own use then there is no liability to duty and no need at all for his goods to be forfeit in order to enforce any liability to duty upon those goods. The argument, however, is that it may be necessary to do so in order to enforce the liability to duty of other goods found in the same vehicle. At this point the Community law concept of proportionality becomes relevant. In Louloudakis v Elliniko Dimosio [2001] ECR I-5547, 5596, at para 67, it was recognised that as penalties were not harmonised within the Community it remained open to member states to choose the penalties which seem appropriate to them. 'They must, however, exercise that power in accordance with Community law and its general principles, and consequently with the principle of proportionality… The administrative measure or penalties must not go beyond what is strictly necessary for the objectives pursued and a penalty must not be so disproportionate to the gravity of the infringement that it becomes an obstacle to the freedoms enshrined in the treaty." In this case, the court also found that Mr Newbury had specifically warned his passengers that they must only bring goods in for their own consumption or as gifts. His evidence was that he did not know about Mrs Reed's arrangements. It cannot be necessary to forfeit his goods in order to enforce her liabilities. To do so is in those circumstances indeed an obstacle to the freedoms enshrined in the Treaty and an unjustified interference with his rights under Community law. Indeed it might also be a disproportionate interference with his rights under the European Convention on Human Rights, but that raises rather different issues which are also relevant to the forfeiture of Mrs Newbury's car. Mrs Newbury's car Mrs Newbury's car was forfeit because it was used to transport chargeable goods. There was no countervailing Community law right engaged. There is however a countervailing right under article 1 of protocol 1 to the European Convention on Human Rights: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." In Lindsay v Customs and Excise Commissioners [2002] 1 WLR 1766, at para 52 Lord Phillips of Worth Matravers MR said this: "The Commissioners' policy involves the deprivation of people's possessions. Under article 1 of the First Protocol to the Convention such deprivation will only be justified if it is in the public interest. More specifically, the deprivation can be justified if it is 'to secure the payment of taxes or other contributions or penalties'. The action taken must, however strike a fair balance between the rights of the individual and the public interest. There must be a reasonable relationship of proportionality between the means employed and the aim pursued: Sporrong and Lonrath v Sweden (1982) 5 EHRR 35, para 61 and Air Canada v United Kingdom (1995) 20 EHRR 150 I would accept [the] submission that one must consider the individual case to ensure that the penalty imposed is fair. However strong the public interest, it cannot justify subjecting an individual to an interference with his fundamental rights that is unconscionable." In paras 63 and 64, the Master of the Rolls drew a distinction between those 'who deliberately use their cars to further fraudulent commercial ventures in the knowledge that if they are caught their cars will be rendered liable to forfeiture' and 'the driver importing goods for social distribution to family and friend in circumstances where there is no attempt to make a profit'. The former could not complain about the loss of their car, although even then cases of exceptional hardship must be given due consideration. In the latter, each case should be considered on its particular facts, including scale, whether it was a first offence, whether there was any attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship caused. It was accepted before us that, in the light of Lindsay, both the Commissioners and the Tribunal must strike this balance. Although the Tribunal's powers are limited by section 16(4) of the 1994 Act, they have a full fact finding jurisdiction: and in Gora v Commissioners of Customs and Excise [2002] VAT and Duties Tribunal Reports 49, the Tribunal held that in order for the proceedings to comply with article 6 of the ECHR it must also have the capacity to determine the issue of reasonableness (which would include proportionality) in the light of the facts found. Gora is currently under appeal, but we are not given to understand that the Commissioners are challenging that aspect of the Tribunal's jurisdiction: they do argue that 'what the rules do not permit is the substitution by the Tribunal of its own view of the merits' (para 90 of their skeleton argument). If by that is meant no more than that the Tribunal cannot actually order a result but must send it back to the Commissioners for them to determine in the light of the Tribunal's decision, that would accord with both section 16(4) and the decision of the Court of Appeal in Lindsay. If it means that the Tribunal cannot consider and make clear its views on the proportionality issue, then it is inconsistent with what is argued before us (see also Commissioners of Customs and Excise v Alzitrans [2003] EWHC 75(Ch)). Mr Barling on behalf of the Commissioners has assured us that in practice the Commissioners will give effect to the Tribunal's determination, including their observations on proportionality in the light of the facts found. Further, as the Master of the Rolls recognised in Lindsay, the Commissioners have a wide range of lesser penalties available to them, which can be tailored to the circumstances of the individual case as found by the Tribunal. The issue before us is whether it is also open to the court determining whether goods are liable to forfeiture to consider whether forfeiture would be a disproportionate interference with the owner's property rights. Against this it is argued that the issue before the court is the narrow one of whether the property is 'liable to forfeiture' as defined in the statute. There is no need for the court to have this jurisdiction as the Commissioners and Tribunal already have it. Taken as a whole, the condemnation and restoration proceedings are sufficient to comply with Convention rights: see Gascoyne v Customs and Excise Commissioners [2003] EWCA 257 (Ch),paras 112 –120, relying on the European Court of Human Rights' decision in AGOSI v United Kingdom (1986) 9 EHRR 1. Furthermore, the court has no power to do anything other than decide whether the property is forfeit: it cannot therefore tailor the penalty to the particular circumstances of the case in the way open to the Commissioners and Tribunal. In Customs and Excise Commissioners v Helman [2002] EWHC 2254 Admin, Davis J held that the courts' jurisdiction was limited to the legality of the forfeiture, as governed by section 141(1)(a) or (b) of CEMA, and they could not consider the wider issues. On the other hand, in Fox v Customs and Excise Commissioners [2002] EWHC 1244 Admin, Lightman J referred an issue arising under domestic law back to the court for factual determination. In rejecting the argument that to do so would not prevent the risk of violation of Convention rights, he pointed out, at para 22, that regard must be had to both the opportunity of defending the claim in court and if that failed making a claim for relief from forfeiture under the procedure invoked in Lindsay. Until the full facts and the outcome of the two sets of proceedings were known, it was premature to assert that Convention rights were violated. Ms Simor argues that the Helman decision is simply wrong. The court is concerned with the legality of forfeiture. Convention rights are just as much a matter of legality as are European Community rights. Under section 6(1) of the Human Rights Act 1998, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Under section 6(2), this does not apply to an act if as a result of one or more provisions of primary legislation the authority could not have acted differently, but clearly the Commissioners do have power to act differently if they choose. The Commissioners are a public authority and so is the court. Under section 7(1)(b) 'a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may . . . rely on the Convention right or rights concerned in any legal proceedings . . .. ' It is nothing to the point that another tribunal also has jurisdiction over the same subject matter. This is not a social or policy question which Parliament has left to an administrative body. Ownership and peaceful enjoyment of property is a straightforward civil right. A court which is concerned with that ownership has to determine the issue in the light of all the law, which now includes the rights 'brought home' by the 1998 Act. The European Court of Human Rights decisions in AGOSI v United Kingdom (1986) 9 EHRR 1 and Air Canada v United Kingdom (1995) 20 EHRR 150 were concerned with the compatibility of the system as a whole with Article 6 and Article 1 of Protocol 1. They do not help us to decide the jurisdiction of the court in forfeiture proceedings now that the Human Rights Act is in force. These arguments were not before the court in Helman because the claimant was acting in person. We can understand why the Commissioners might want to keep this issue under their control, subject to a specialist Tribunal. But courts are used to finding facts and applying their judgment to the consequences of the facts found. There are many other contexts in which courts at all levels have to make the sort of judgments required here. If section 7(1)(b) of the 1998 Act is to have any meaning, how can a court which is seized of the issue of whether property is liable to confiscation by the state not have a duty to consider whether such liability would be in breach of the owner's Convention rights? If it would be, the court cannot condemn the property: it would itself be acting in breach of Convention rights. It is not compelled by CEMA to do so because the concept of liability to forfeiture is capable of incorporating more recently enacted Convention rights. The argument that the condemnation and restoration procedures, taken as a whole, are sufficient to provide 'full jurisdiction' for the purpose of article 6 of the European Convention does not meet the point that seizure and condemnation are themselves acts of interference with the peaceful enjoyment of property and therefore acts incompatible with Convention rights if forfeiture is disproportionate. It is not sufficient to wait until an owner seeks a review and then exercises his right to appeal. The right to peaceful enjoyment is engaged from the moment of seizure and continues thereafter. The initial act of seizure may not be disproportionate because the Commissioners are entitled to investigate. But the interference should cease once an opportunity is available properly to consider whether it complies with Convention rights. The court should not be asked or expected to make an order which is not only in breach of those rights in itself but also legitimates continuing breach by the Commissioners unless and until the review process takes place. However, section 7 of the 1998 Act does not give the court any wider powers than it already has: see section 8(1). Here, the court's powers are 'all or nothing'. So the court can only refuse to condemn if to forfeit at all would be disproportionate. In this case, where only one passenger was making the sort of non-commercial but not necessarily permitted import contemplated by Lindsay and neither the car owner nor the car driver knew about it, the Crown Court was clearly entitled to find that any forfeiture was disproportionate. Intermediate cases where forfeiture would not be disproportionate if terms were imposed may have to be left to the more sensitive powers of the Commissioners and the Tribunal. Mrs Reed's import A prior question is whether Mrs Reed's goods were 'goods chargeable on their importation with customs or excise duty' under section 49(1) at all. If they were not, then the other goods and the car were not liable to forfeiture under section 141(1). This depends upon the interpretation and application of the Directive. The object of the Directive is to determine where goods moving across borders within the internal market should bear duty. The Preamble sets out the basic principles: " . . . any delivery, holding with a view to delivery or supply for the purposes of a trader carrying out an economic activity independently or for the purposes of a body governed by public law, taking place in a Member State other than that in which the product is released for consumption gives rise to chargeability of the excise duty in that other Member State; . . . in the case of products subject to excise duty acquired by private individuals for their own use and transported by them, the duty must be charged in the country where they were acquired; . . ." Article 6 provides that in general excise duty shall become chargeable at the time of release for consumption; article 7 provides that in the event of products already released for consumption in one Member State being held for commercial purposes in another Member State, excise duty shall be levied in the Member State in which those products are held; article 8 (quoted in para 10 above) provides that products acquired by private individuals for their own use and transported by them shall be charged excise duty in the Member State where they are acquired; and article 9 provides that without prejudice to articles 6, 7 and 8, excise duty becomes chargeable where goods are held for commercial purposes in another Member State from the one in which they were released for consumption. Article 9.2 deals with the considerations to be taken into account in deciding when goods are held for a commercial purpose, one of which is quantity, and sets minimum quantities to be used as guidance in determining this. Article 10 deals with distance selling. The problem, identified in Lindsay, is that in theory something might not be 'held for commercial purposes' under articles 7 or 9 but equally might not be 'acquired by private individuals for their own use and transported by them' under article 8. But it is common ground that these concepts are intended to be antithetical: there can be no clear water between them. The Directive is given effect in English law by, among other things, the Excise Duties (Personal Reliefs) Order 1992 (the 'PRO'). Article 3 provides that a Community traveller entering the United Kingdom shall be relieved from payment of any duty of excise on excise goods which he has obtained for his own use in the course of cross border shopping and which he has transported. Under article 2(1), 'cross border shopping' means the obtaining of excise goods duty and tax paid in the European Community provided that payment has not been and will not be reimbursed refunded or otherwise dispensed with; also under article 2(1): "'own use' includes use as a personal gift provided that if the person making the gift receives in consequences any money or money's worth (including any reimbursement of expenses in connection with obtaining the goods in question) his use shall not be regarded as own use for the purpose of this Order." The Divisional Court in Hoverspeed (see above) held that the PRO was incompatible with the Directive in two respects but also observed that the definition of 'own use' in the PRO did accurately reflect the Directive. The Court of Appeal in Hoverspeed, at the invitation of the parties although not required to do so for the resolution of the case before it, discussed the meaning of articles 8 and 9 of the Directive: see paras 60 to 65. The Court held, at para 65, that articles 8 and 9 are intended to be antithetical: they also held that if products are not covered by article 8 they are to be regarded as held for commercial purposes. They recorded that they were not concerned with the precise scope of the concept 'for his own use' and that the Commissioners accepted that it must receive a sensible interpretation. But they had earlier observed at para 63 that "There would be an odd lacuna (and indeed a considerably wider exception than article 8 permits) if goods transported by an individual not for his or her own personal use, but for supply to others (albeit for example on a purely reimbursement basis) fell outside the concept of 'product . . . held for commercial purposes in article 9." Ms Simor accepts that articles 8 and 9 are antithetical. But she argues that what is not held for commercial purposes under article 9 must be personal, rather than that what is not covered by article 8 must be commercial. The crucial distinction, as reflected in the Preamble, is between imports for private and imports for commercial purposes. The criteria in article 9.2 deal with how to decide what is commercial. The other texts of the Directive do not refer to personal 'use' but to personal 'needs' or 'requirements'. It can be a personal requirement for a private person to bring back goods as a favour to friends and family. The PRO's strict insistence that there must be nothing given in return would produce absurd results if strictly applied. In the EMU Tabac case [1998] QB 791; [1998] ECR I-01605, the European Court considered two questions referred by the Court of Appeal: "1. Does Directive 92/12/EEC and in particular Article 8 have the effect of precluding the charging of excise duty on goods in Member State A in circumstances where (ii) the goods were acquired for the use of a private individual in Member State A; (ii) they were acquired in Member State B by an agent acting on behalf of that private individual; (iii) transportation of the goods from Member State B to Member State A was arranged by the agent; and (iv) the individual did not himself travel with the goods from Member State B to Member State A? 2. Where a scheme has been commercially devised and marketed whereunder purchases made in Member State B for the personal use of a private individual in Member State A are made by an agent for that individual and those purchases are transported from Member State B to Member State A as a result of arrangements made by such an agent, does Directive 92/12/EEC have the effect of precluding the charging of excise duty on those purchases in Member State A?" The first question might be said to fit the facts of Mrs Reed's import. The second fitted the facts of the commercial enterprise in arranging so-called personal imports which was allegedly involved in the EMU Tabac case. The Court answered in effect the second question in the negative. Ms Simor argues that it did not answer the first. However, it was part of the Court's reasoning, at para 37, that article 8 is not applicable where the purchase and/or transportation of goods subject to duty is effected through an agent. The Advocate General had answered the first question in the negative and then answered the second a fortiori from the first. The object of the rules is to determine whether duty is payable in the country of origin or the country of destination. The general principle is the latter and article 8 is an exception in which three conditions must be fulfilled: the products must be acquired by private individuals; the products must be acquired by private individuals for their own use; and the products must be transported by private individuals. "The private individual must carry out sequentially a number of personal operations in order to benefit from the tax provisions in the Member State of purchase: . . . he must travel to that Member State and from there he, personally, must transport the goods acquired. It seems to me to follow logically from those requirements that the purchase, as such, should also be deemed to be limited to a purchase made by the buyer himself, not through an agent or middleman." (para 27) The involvement of people other than the purchaser in the intra-Community movement of goods is carefully regulated by other provisions in the Directive, including the provision for distance selling in article 10. If it had been intended that the purchaser could have been reflected by any natural or legal person to whom he had given a power of attorney in order to benefit from article 8 of the Directive, it would have said so. The person doing the transporting must also be the private individual purchaser. Now it could be said that in his reasoning in a case concerned with a commercial enterprise arranging so-called personal imports for private individuals who never left the comfort of their own armchairs the Advocate General may not have considered carefully enough the position of someone such as Mrs Reed. She travelled to France and bought the goods. She transported them back. Her 'own use' might be said to include doing a favour for family or friends who bought them from her for no more than they had cost her to buy. In other words, she was both the purchaser and the transporter within article 8, although she later handed over the goods for what they had cost but at no financial gain to herself. In this or another case a higher court might find it appropriate to refer these facts to the European Court. But in the face of clear reasoning by the Advocate General, relied upon by the European Court in reaching its conclusion, accepted by both a Divisional Court and the Court of Appeal in this country, and consistent with the wording of the PRO, in our view it would not be appropriate for this court to reach a different conclusion. Conclusion It follows that the answer to question 2 in the stated case is 'yes, they are liable to forfeiture'; but the answer to question 3 is that the issue of whether property is liable to forfeiture includes whether forfeiture would be so disproportionate as to be in breach of the particular claimant's rights under article 1, protocol 1 to the Convention and both can be resolved by the court. This is not strictly a question of discretion but a matter upon which the court is entitled to reach its own independent judgment. We have already indicated that the answer to question 1 in the stated case is 'no'. However, in the light of the answer to question 2 and 3 and the Crown Office findings, the appeal insofar as it relates to Mr Newbury's goods and Mrs Newbury's car is dismissed. - - - - - - - - - - - - - LADY JUSTICE HALE: For the reasons given in the judgment of the court, which is handed down today and copies of which are available to those who wish them, the answers are given to the questions raised in the case stated and, in the light of those answers, the appeal, in so far as it relates to Mr Newbury's goods and Mrs Newbury's car, is dismissed. PRIVATE MR BARLING: Your Lordships know the representation. We have done our best, Miss Simor and myself, to try to agree an order and we have got quite a long way down the road. Can I tell you what the state of play is. It might be easier to do that if I hand up one version, which is the order according to us, with one minor thing which we have now agreed to put in. (Draft order handed to the court) Your Lordships will see that, as far as questions 1, 2 and 3 are concerned, the first four paragraphs, that is all agreed and those reflect your Lordships' answers to the various questions. The only matter that remains for your Lordships to debate there is in paragraph 4. Paragraph 4 reflects almost, if not verbatim, the words in paragraph 35 of the judgment. The words there had "entitled", and my learned friend has raised the question whether "required" would be better. As far as we are concerned, it is really just a matter for your Lordships to decide which you would prefer to go in. LADY JUSTICE HALE: I have a view. MR BARLING: Shall I move on to the next point, paragraph 5? LADY JUSTICE HALE: Yes. MR BARLING: The claim was £161 in respect of the value of the goods seized from Mr Newbury - his tobacco and alcohol. An issue has arisen as to whether the court has power to award interest. Your Lordships may remember that, very much in passing, we glanced at some of the provisions of the schedule in relation to condemnation proceedings and so on. If I can put it this way, there is a big issue in relation to this. I may as well say at the outset that I am not in a position to do justice to the arguments as to that issue today. What we have simply done is to agree a value of the goods which included the claim for interest. That is, as it were, our position, because it effectively avoids that question. My learned friend may take the view that she wants interest hived off and shown separately, in which case my submission to your Lordships will be please may that be argued in full on another day, because, although the amounts here are trivial, it is a matter of considerable importance to my clients that the answer is properly arrived at after full consideration, with skeletons and so on. MR JUSTICE MOSES: But if you paid an amount that in fact includes interest in this particular case, without prejudice to the argument, then there is nothing left for Miss Simor to argue about. She is just worried about her next client. MR BARLING: With respect, that was the aim of agreeing the value in that way. MR JUSTICES MOSES: The whole thing become academic. MR BARLING: Indeed. There is a similar issue, which you do not see from looking at my version, but my learned friend's version of the order has a claim for compensation - effectively what is a judgment for damages in respect of loss of use of Mrs Newbury's car. Similar issues arise, but, in a sense, with bells and whistles on, in relation to damages, because obviously there is great concern that, if this feeds back into the condemnation proceedings, one may have a position where in effect magistrates' courts are going to be able to award damages for loss of use if they find the goods are not liable to forfeiture. In our submission that cuts across, first of all, the statutory code which your Lordships saw in Schedule 3 to the Act. There is a whole code dealing with how the issue of returning goods are dealt with and also how claims might be dealt with. LADY JUSTICE HALE: It obviously raises issues of law which we have not considered. MR BARLING: No indeed, my Lady. LADY JUSTICE HALE: They relate to the interpretation of section 8 of the Human Rights Act. MR BARLING: Indeed they do. Can I say that what we have indicated to my learned friend is this. In the ordinary course, if goods were held not liable to forfeiture, as a matter of practice what is done is that any claim for compensation is considered on its merits. There was a claim after the Crown Court. The claim was put in after the Crown Court hearing. That then went into abeyance because of this appeal, and it is now revived. My clients have undertaken that they will make the appropriate offer of compensation, having considered all the facts, within 14 days. Presumably that offer would be to Mrs Newbury because it was her car. She of course is not a party to this appeal anyway. So for that reason, if for no other, we would submit that it would not be appropriate for this court to make an order for damages. It can only be made in Mr Newbury's favour because he is the only party, but it is not his car. It is not his claim, in effect, for damages, as opposed to the issue of the liability for forfeiture. So we have given that undertaking, although I give it now again, to make the appropriate offer. I have also indicated that, if it would give my learned friend and her clients comfort, we have no objection to a seventh paragraph of the order saying, "Liberty to apply," unless your Lordships have any objection to it, obviously. So in a sense, if the matter was not resolved with Mrs Newbury in a way that is satisfactory to the defendant, we could come back and argue jurisdiction to award it and so on; or your Lordships might remit it to the single judge, or there would be all sorts of possibilities. But it is not an issue, in our submission, on which it would be appropriate to make any order today, and we anticipate that it will be dealt with and resolved in any event in the ordinary administrative way. Finally, there is the question of costs. Your Lordships probably have a view on that anyway now, but you may have noted in our letter of correction that we indicated that, so far as the matters argued before your Lordships are concerned, in a rough and ready way, we won on one of the two issues and my learned friend's clients won on the other issue. So our submission is that a fifty/fifty split would be appropriate, particularly given that question 1 was already, as it were, abandoned by my learned friend, inevitably. That would also serve this useful purpose: that, as we understand it, Mr Newbury is whatever you now call legally aided; he has a full representation order for this appeal. So if there were an order for costs in his favour or, indeed, in our favour, it would just be a question of expending money deciding which public pot contributed to which other public pot. A fifty/fifty split, which could be reflected in no order as to costs, we submit, would save those administrative costs and would actually reflect the justice of the findings. LADY JUSTICE HALE: So there would in any event have to be another bit in the order, which is a public funding assessment, which you have not yet provided for. MR BARLING: I am sure your Ladyship is right about that. LADY JUSTICE HALE: Yes, thank you, Mr Barling. Yes, Miss Simor. MISS SIMOR: On the damages point, we have agreed before this hearing that, provided there was a liberty to apply provision, we are happy with that order. But we submit that we must be able to come back to this court, and it must be the proportionate approach to deal with all these matters together. As regards the interest issue, there is one reason why interest does need to be in the order, and that is if payment is not immediate. If payment takes place in two or three months, the interest has to be an issue. In my submission it is a very simple point and it is something that this court should deal with. LADY JUSTICE HALE: We are not going to deal with it today? MISS SIMOR: There is no question that the court has power to award this interest. I was going to take your Lordships to the provision that makes it absolutely clear that you have power. LADY JUSTICE HALE: Interest on what? MISS SIMOR: On the goods. We wrote to Customs on 1st April. We asked them to refer us to the relevant provision which said that interest could not be awarded if there is any issue in this. If you go to section 28A of the Supreme Court Act in Volume II of the White Book, it says "... may make such other order in relation to the matter (including as to costs) ... Then if you go to rule 52.10, at 52.10(2)(d), it is clear that the appeal court may make an order as to interest. This is not a question of assessing damages. It is accepted that the interest to date is £27 whatever. The value of the goods is accepted. There is no need for any assessment. It is simply the question of the court exercising its power to make an award for interest, which it can do under rule 52.10(2)(d) and section 28A of the Supreme Court Act. So those are our submissions on interest. On the costs issue, in our submission this is an entirely unrealistic approach to this case. Had Customs given the goods back and the car back after the Crown Court case in August last year and appealed the commerciality point, it is unlikely there would have been a case. But that was not what happened. It was my professional duty to argue the commerciality point. The Legal Aid Board should not be without funds because of that argument. The appeal was brought by Customs. They lost and they should bear the costs of that. It is unrealistic, when the Legal Aid Board is so short of funds, to say that it is just a question of moving money between different Government bodies. Those are my submissions. MR BARLING: Can I just say that my learned friend prefaced her remarks on the interest point with the worry that she has to deal with it because we might not be paying for a long time. I have taken instructions on that. We can pay the sum within fourteen days and are happy to undertake to do so. So in a sense that deals with her worry about it. There is an issue also - this is part of the wider issue about interest - as to whether the CPR applies to condemnation proceedings. For the reasons I have already stated, it is basically an important matter of principle. It is not necessarily accepted that section 28A applies to interest. All those matters need to be gone into carefully because of the repercussions. I would just add that one of the factors, not least of all from my clients' perspective, is that there is effectively no appeal from your Lordships' decision on any of these matters anywhere, and therefore all the more reason that it is properly argued. So rather than doing it on the hoof, as it were, perhaps your Lordships would be minded to adopt our suggestion. It is an agreed amount in the sense that there is no argument as to the amount by my learned friend, and it will be paid within fourteen days, assuming the order is made. But if, beyond that, it was thought proper that the matter should be determined so that some of it should be characterised as interest, then we would ask you to adjourn and give directions for argument. LADY JUSTICE HALE: For proper argument, yes. MISS SIMOR: I forgot to hand up what was our version of the order. Perhaps I can just hand that up. (Draft order handed) I have removed the damages claim that was in the original order discussed, on the basis that there should be liberty to apply. LADY JUSTICE HALE: All it is is adding in "liberty to apply". If one made the liberty to apply generally applicable, that would cater for the problem. MR BARLING: It would theoretically cater for anything, as I understand it. LADY JUSTICE HALE: Yes, I am very suspicious of generalised liberties to apply. MR BARLING: The understanding would be that, if the matter had not been resolved with the car, that could come back and be argued. It is a matter for your Lordships as to whether you want to deal similarly with the interest point. If your Lordships are minded to give the liberty to apply, we would invite you to take our version. LADY JUSTICE HALE: Yes, I appreciate that. (Their Lordships conferred) If we take Mr Barling's draft, in paragraph 4 we will put "entitled" in the bottom line. There can be all sorts of reasons why the court was not "required" to do it. "Entitled" was what we said and "entitled" is what we meant. We will take paragraph 5, without a separate reference, from Mr Barling's draft. However, we will insert a paragraph giving a general liberty to apply. In our view, although of course costs may be approached on an issue by issue approach, in relation to what was actually at stake in these proceedings, which were the costs of Mr Newbury's goods and the car, Miss Simor won and in our view she should have her costs. MR BARLING: You mentioned the word "general". Was that liberty to apply generally? LADY JUSTICE HALE: It would apply obviously sub silentio to the question of compensation, but also to any question of interest. MR BARLING: So probably the sensible thing is just to put "liberty to apply". LADY JUSTICE HALE: Yes, that is what I was seeking to explain that I meant. MR BARLING: I am grateful. Miss Simor will know whether she needs any special order for --- LADY JUSTICE HALE: She probably needs an order for detailed public funding assessment. MR JUSTICE MOSES: I am not sure you do when you have got your costs. MISS SIMOR: I think it is to be assessed if not agreed. LADY JUSTICE HALE: Supposing that the Customs and Excise go bust: you would still need to have your detailed public funding assessment, would you not? In my experience, even if you have got the Government on the other side, you make an order. It may not be a realistic thing, but nevertheless that is the general proposition. If you do not need it, there is no problem, but just in case you do, you can have it. Have we dealt with everything? MR BARLING: I cannot think of anything else, my Lady. I am grateful. ----------------

Lord Justice Laws: INTRODUCTORY   This appeal is brought with permission granted by Jacob LJ on 15 December 2004 against a decision of Master Price given in the Chancery Division on 20 June 2004. The proceedings before the learned Master consisted in an inquiry into damages in a copyright action. In an earlier judgment dealing with liability only, given on 8 November 2002, HHJ Weeks QC sitting as a High Court Judge in the Chancery Division had held that the appellants (defendants in the action), to whom I may collectively refer as AON, had infringed the copyright owned by the first claimant ("USP") in a document known as the Collections Account Agreement ("CAA"). AON were also held liable to the second claimants for breach of confidence and contract, but these claims have no direct relevance to the issues in this appeal. On 13 February 2003 HHJ Weeks ordered an inquiry as to damages. Master Price, having conducted the inquiry, made an award in USP's favour of £126,720 plus interest. THE FACTS We have been supplied with a "Statement of Agreed Primary Facts" on which I have drawn and to which I will refer in describing the relevant events. The AON Group to which the appellants belong offer an extensive range of financial services. These include the supply and administration of what are called extended warranty schemes. The respondents (claimants in the action) entered the same market in 1998. Extended warranties are generally offered by retailers of household electrical goods for sale to their customers. Before 1997 the warranty schemes for the larger retailers were based on insurance and attracted insurance premium tax. In the 1997 budget the Chancellor of the Exchequer raised this tax to 17.5%. Insurance-based schemes became less attractive. In September 1997 two solicitors from the Isle of Man, Mr Cooper and Mr Chan, devised a scheme which was not insurance-based. It involved an offshore service company which contracted directly with the customer for the provision of any repairs under the warranty. The customer's money would be placed in a trust fund to meet the costs of the repair, and the surplus distributed eventually to the participants in the scheme. In November 1997 the second claimants, Unicorn, were incorporated and registered in the Isle of Man in order to market and implement this scheme. Its first prospective customer was Scottish Power. Scottish Power had an existing insurance-based scheme administered by LGH, the first defendant. But this scheme was due for renewal, and Scottish Power were interested in the new scheme which was presented to them by Unicorn in February 1998. In the same month, February 1998, Messrs Cooper and Chan drafted the essential documents that were required for the new scheme. These included the CAA. The CAA was integral to the establishment of the trust which was an essential characteristic of the scheme. It was envisaged, moreover, that the CAA would provide a template for future schemes. LGH were involved as administrators. As I have said they were already the administrators of Scottish Power's earlier insurance-based scheme. However Mr Borrill of the respondents indicated that Unicorn would not release the scheme documents to LGH unless the latter entered into a confidentiality agreement, which they did; accordingly on 19 February 1998 LGH were supplied with drafts of the scheme documents including the template CAA. The copyright in the original draft template CAA was first vested in Unicorn and was assigned to USP in 1999. Over a five week period after it was supplied to LGH in February 1998, its operative clauses were considerably transformed in the course of working up Scottish Power's scheme. Mr Ellery of Scottish Power's solicitors took the lead in redrafting the document so as to suit his clients' particular requirements. It is accepted that in its original form the template CAA was not satisfactory. It would have needed some alteration and development to be brought into practical effect for the purpose of implementing any trust-based scheme, and not only that developed for Scottish Power. HHJ Weeks was to say (judgment, page 13, line 18ff): "…Undoubtedly Unicorn had, and USP now has, the copyright in the draft CAA which was supplied to LGH on 19 February 1998 and handed out at the meeting on 24 February. Equally clearly, USP and Scottish Power, and possibly LGH, have the copyright in the final version of the CAA. It is common ground that when a work goes through successive stages in writing, copyright continues to subsist in the earlier versions. It is also common ground that one joint owner cannot exploit his copyright without the consent of the others,…" Sometime after the Scottish Power transaction there were discussions between AON and the respondents as to the possibility of co-operation in the marketing of extended warranty schemes. These, however, came to nothing. AON and the respondents essentially marketed different kinds of schemes. The respondents' schemes involved the creation of what is called an "SPV" or "Special Purpose Vehicle" which uses a trust mechanism. AON employed an "MPV" or "Multiple Purpose Vehicle", which does not have a trust mechanism. There was however some evidence that AON considered the possibility of trusts; although I should notice (for it is important to the way that AON's case is put) that there was evidence from Mr Witt of AON (he was the company secretary of LGH) that after April 1999 AON effectively turned their backs on trust-based schemes. At all events, however, in April 1999 Mr Brimacombe of AON saved an electronic copy of the CAA on AON's central computer. This was a version of the CAA as it had been worked up for Scottish Power. This, and a clone or clones of it, were the infringing copies complained of in these proceedings. The month of April 1999 ushers in the first series of events in relation to which the learned Master made a compensatory award in favour of the respondents. A company called Apollo 2000 Ltd ("Apollo") was a client of LGH. In April and early May 1999 LGH were considering a trust-based extended warranty scheme for Apollo. An in-house lawyer with LGH, Mr Ian D'Castro, used the infringing copy of the CAA to prepare draft documentation for Apollo. He also in April 1999 sent the infringing copy for the purpose of obtaining advice to a firm of solicitors in the Isle of Man called Cains. There was a question at the inquiry before the Master as to the extent to which, or the stage at which, the scheme devised for Apollo involved use of a trust. The respondents were saying that at least it did initially. The Master held in essence that the question did not really matter; there had in any event been infringements of copyright by the appellants in connection with the Apollo scheme. I should notice that the Master did not find that any infringing copies were sent to Apollo itself. In relation to Apollo, the Master held (judgment page 5) that "the right way to proceed to assess these damages is by way of a notional royalty". He proceeded to consider the respondents' case as regards other infringements which should properly be compensated by way of such a royalty. These concerned warranty schemes for Tesco, and also for a company called Otto. For reasons he gave the Master made no finding against the appellants in relation to Otto and it is unnecessary to say any more about that part of the case. The complaint relating to Tesco concerned events taking place in 2002. The appellants had offered a trust arrangement for an extended warranty scheme. They instructed solicitors, Messrs Collyer Bristow, to advise and draft documents. Mr Monson for AON submitted that the Master did not find any infringement in relation to Tesco, or any other "unspecified" infringement, so that his award of notional royalty was only in respect of Apollo. On reading the whole passage of the judgment from paragraph 6 to paragraph 15 inclusive, one might suppose that that is incorrect. The Master does not specifically describe the use of infringing copies in relation to Tesco; but he expressly excludes only Otto and at paragraph 15 says this: " 15. My conclusion therefore is that the claimant should receive £15,000 by way of compensation for the labour and skill involved in producing the template CAA as an appropriate notional royalty in respect of all of the uses to which the defendants have put it, apart from the question of Powerhouse…." However, it is clear from his judgment on costs that he did not find an infringement in relation to Tesco. The figure of £15,000, which the Master arrived at in carefully reasoned steps, is not in fact itself the subject of challenge by AON. AON's complaint is that the Master was wrong to award, as he did, the additional and much greater sum of £111,720 by way of damages for infringement in relation to what may be called the Powerhouse transaction. The respondents, by their re-amended respondent's notice, contend amongst other things that if the award of £111,720 is to be set aside then certain other sums should have been awarded; in particular, if the appellants' infringements in relation to Powerhouse ought to be met with an order for payment of a reasonable royalty, in common with those relating to Apollo, then the figure of £15,000 should be substantially increased since it was arrived at without regard to Powerhouse, which the Master dealt with separately. I turn to the facts relating to the Powerhouse transaction. Mr Stuart Turner was the Warranty and Insurance Manager of Powerhouse. In September and October 1999 he was reviewing Powerhouse's extended warranty scheme. He attended meetings with Mr Mian of LGH in September 1999, and Mr Borrill of the respondents in December 1999. So it was that at this period Powerhouse through their principal protagonist Mr Turner were negotiating both with AON and the respondents. At AON's request Powerhouse on 7 February 2000 entered into a wide-ranging confidentiality agreement by which they (and therefore Mr Turner) were prohibited from using any information supplied by AON other than for the purpose of taking forward the scheme being elaborated for Powerhouse by AON. After this, and following a request which had been made by Mr Mian of AON on 2 February 2000, Powerhouse sent AON information about the size of their warranty business. There was then another meeting between Mr Turner and the respondents, who by Mr Borrill on 10 February 2000 sent a proposal to Powerhouse. It included a provision for a one-off implementation fee of £40,000. The proposed scheme's costing structure also included operating profit figures which were, however, swiftly reduced after further discussion. At about this time Mr Turner informed AON and the respondents that they were in competition with each other, as the Master put it "in order to be able to play one off against the other in the context of the negotiations" (judgment paragraph 19). Mr Turner believed that the scheme being offered by the respondents had advantages because of its "robustness", but that AON's scheme was keener on price. He raised with AON the question whether a trust mechanism might be provided within their scheme, so as to impart the quality of "robustness". Mr Mian of AON agreed to seek advice. AON accordingly approached Messrs Cains, the Isle of Man solicitors. They provided advice which was sent to Mr Turner. It is common ground that this advice was based on the infringing copy of the CAA supplied to Cains the previous year in connection with the Apollo scheme. Powerhouse were not satisfied with Cains' advice. The solicitors provided further advice, communicated to Mr Turner on 23 February 2000. The next day Mr Turner prepared a memorandum for members of the Powerhouse board. In it he stated: "The major cause for concern surrounding the validity of a trust arrangement for our ring-fenced service fees held within the offshore service company has not yet been satisfactorily resolved… We need to take into account that no precedent… has been set in law and therefore no proof exists that the trust solution presented to Powerhouse by AON would have any legal weight. It would seem only wise to secure further independent advice…" Accordingly it was resolved that Mr Turner should obtain further advice from Powerhouse's solicitors, Messrs Biddle & Co, and I shall refer shortly to some of Biddle's correspondence. On about 24 February 2000 Mr Turner asked Mr Mian for a copy of AON's CAA. It was not immediately supplied and Mr Turner continued to press for it. At length Mr Mian provided it on 7 March 2000, and I shall come to that. I should make it clear that the Master did not find, and it is not suggested, that AON had in February 2000 made any further infringing copy of the CAA and sent it to Powerhouse, or to Cains to facilitate their giving advice. Mr Pinson of Cains gave evidence that he had not received a copy of the CAA in February 2000: he already had a copy as a result of the disclosure made in April 1999. On or before 1 March 2000 Mr Turner spoke to Mr Reardon of Biddle & Co. Mr Turner was clearly not satisfied that AON's scheme would necessarily work. He wanted Biddle's views on Cains' advice. Mr Reardon apparently told him that AON's scheme was feasible, but this advice (as the Master found) must inevitably have been tentative. On 1 March 2000 there took place a telephone conversation between Mr Turner and Mr Borrill whose outcome is the genesis of AON's claim, and the Master's award, of £111,720 damages. Its terms are therefore of great importance in the case. However the Master's findings as to the content of the conversation are not, with respect, sufficiently exact, and I will reproduce this passage from the Agreed Statement of Facts: "…In the conversation Mr Turner told Mr Borrill inter alia that 'LGH has cracked it' and that 'LGH's collections account agreement would do the trick'; and that as a result of the Cains advice and the promise of the CAA the defendants' scheme was now sufficiently robust. The factors which Mr Borrill said caused him to reduce his price included the content of the Cains' advice, the fact that LGH had sent this advice to Powerhouse, Mr Turner's apparently genuine belief that the defendants' scheme was sufficiently robust and/or as robust as the claimants' scheme, the fact that Powerhouse had gone so far as to take advice from Biddles, the fact that Powerhouse were requiring Mr Mian to provide a physical copy of the CAA and the fact that Mr Mian had promised to provide Mr Turner with a copy of the defendants' CAA." As a result of what Mr Turner said to him, Mr Borrill agreed to reduce USP's price further (it had already been reduced once after the 10 February proposal). The upshot of the agreed reduction was that USP would make £111,720 less profit over the lifetime of the scheme. The Master made these observations about what Mr Turner said to Mr Borrill on 1 March: "It has to be appreciated that Mr Turner was a skilled negotiator and as such he would have played his cards quite carefully to his best advantage. He agreed that he may well have used poetic licence, and it would be surprising if he had not done so. He would hardly have revealed his personal doubts about the robustness of the defendants' scheme, since that would have undermined his own position. It has also been suggested that he misrepresented the defendants' price but I do not see how that is made out on the evidence. It is certainly the case that Mr Turner revealed the costings which he had produced on the basis of the competing quotes he had from the defendants and the claimants. However, I do not think that there is any evidence that he misrepresented the position or suggested the defendants had made a concession which they had not done." As I have said, Powerhouse were pressing AON for a copy of the CAA which, of course, they knew had been the basis (or part of the basis) of Cains' advice. Mr Mian at length supplied it to Biddle & Co, with a copy to Mr Turner, on 7 March 2000. As I understand it, this copy was identical to the one in Cains' possession. Both were generated from, or at any rate were the same as, the electronic copy which Mr Brimacombe had put on AON's computer in April 1999. HHJ Weeks considered the similarities between the original template CAA and the infringing copy. He said this (page 14, lines 14ff): "I do not think it necessary or appropriate therefore to go into a line by line comparison of the two documents. It is clear to me that the substance of the draft is reproduced in the final version and that, by using the final version in an attempt to advance their case with Powerhouse, LGH wrongly appropriated the labour and skill of Cooper Chan and so infringed the copyright of Unicorn which had been assigned to USP." Although (and I am coming to this) the Master made no award against AON in respect of any loss connected with Powerhouse other than for what might be called the 1 March price drop, there is some correspondence which post-dates 1 March which is of some importance given what I regard as the true issue in this appeal, as I will in due course explain it. On 7 March 2000, having that day received the infringing copy of the CAA from Mr Mian, Mr Reardon of Biddle & Co wrote to another firm of solicitors, Dickinson Cruickshank & Co, who were also recruited on behalf of Powerhouse. Among other documents he enclosed the CAA. He said: "Aon have made the point that this [CAA] would need to be tailored to the specific situation with Powerhouse. Aon have also emphasised the confidentiality and commercial sensitivity of the [CAA] which has been disclosed only for use by Powerhouse legal advisers in advising Powerhouse. I would be grateful if you could consider the enclosures and advise whether, as a matter of principle, it would be possible adequately to protect the position of Powerhouse customers in the event of the insolvency of the off-shore service company. At this stage, Powerhouse are looking for clear advice that they can safely go forward with the type of scheme being promoted by Aon (which may be a more cost effective alternative to the [SPV] scheme promoted by USP)." There is a note from Dickinson Cruickshank in reply, which includes this: "We have not seen the entirety of the arrangement and, certainly, no proposed documents (apart from the example draft [CAA])… We, like Cains, have seen no actual proposed documentation." Mr Reardon wrote to Mr Turner on 16 March, advising that: "[a] trust of the nature proposed by Aon, if properly drafted and constituted, would be effective under English law to protect the trust funds… In conclusion it is our view that, in relation to English law, with careful document drafting under the Aon arrangements, monies in the Trust Fund can be protected from claims by creditors of the offshore service company…" Later on 24 March 2000 the respondents agreed a further price reduction on the basis that the implementation fee would come down from £40,000 to £25,000 and would be liable to be rebated if the respondents' scheme generated fees in excess of a stated level. On this basis the respondents were awarded the Powerhouse contract. In fact the fees indeed exceeded the stated level, but Powerhouse went into liquidation. THE MASTER'S DECISION The question the Master had to decide, as he put it in paragraph 27 of his judgment, was whether USP (as owner of the copyright in the CAA) had a good claim against AON for damages for infringement arriving out of the respondents' conceding reductions in their price on 1 March and on 24 March 2000. After citing authority and in particular Kuwait Airways Corporation against Iraqi Airways [2002] 2 AC 883 to which I will come, the Master said this (paragraphs 30-33): "30 The starting point is therefore the question of causation. In my judgment on the findings I have made the availability of a trust mechanism was important to Powerhouse in the context of the negotiations. In order to demonstrate the availability of a trust mechanism in the context of their proposals the defendants made use of the infringing copy they had sent to Cains in April 1999 and subsequently infringed the defendants' copyright again when they sent a copy of the CAA to the claimants on the 7 March 2000. It is necessary to distinguish these two stages of the negotiation in consideration of this issue. On the 1 March 2000 when the first price reduction was agreed the only infringements in issue were the infringements by Mr Brimacombe when he made an electronic copy and the subsequent infringement involved in sending the document to Cains. These two infringements enabled the defendants to obtain the two pieces of advice from Cains in the context of the negotiations with Powerhouse, although those pieces of advice did not persuade Mr Turner on their own. However the availability of the CAA which had been copied enabled Mr Mian to promise a copy to Mr Turner. The advice from Cains together with that promise strengthened his negotiating position and enabled him to persuade Mr Borrill that the claimant was vulnerable to competition from the defendants. But for the infringement I have mentioned I do not consider that Mr Turner would have been in a position to do this. The defendants argue that it was not the infringements that caused this chain of events but the fact of legitimate competition involving the concept of a trust mechanism over which the claimants have no monopoly, a fact quite apart from the infringement of copyright in the CAA. In a sense this is true but it only operates if one conceptualises what happened at too high a level of abstraction. The reality is that it was the infringements that I have mentioned which put the defendants in a position to rely on the trust concept in the bargaining with Mr Turner and which he could then use against Mr Borrill. The fact that the defendants could at relatively little expense have avoided this by devising their own scheme is nothing to the point… 31 The defendants rely upon Work Model Enterprises Limited –v- Eco System Limited [1996] FSR 356 in this context. That case involved an admitted infringement of copyright by a competitor who copied the claimant's brochure. It was held that the infringement did not cause the lost sales which were the result of legitimate competition. This neatly illustrates the principle of causation but it is not in my view applicable on the facts. In this case it was the infringements which enabled the claimants to lay claim to be able to put into place a trust mechanism, and it was that which led to the prejudice to the claimants' negotiating position. 32 The defendants further argued that Mr Turner's conduct of the negotiations involved misrepresentations and breaches of Powerhouse's confidentiality agreement with the defendants, so that there was a break in the chain of causation. In this respect Mann J has held that there was a breach of the confidentiality agreement in imparting the Cains advice to the claimants, and this must be accepted as correct. Mr Turner also prepared an analysis of costings based on information supplied to him and I accept that in imparting these analyses to the claimants he was again in breach of the confidentiality agreement. I do not however accept that there was ever any misrepresentation by the way he represented his impression of the robustness of the defendants' scheme although he may have used poetic licence to the extent that he did not reveal his reservations. However, all this is part of the course [sc 'par for the course'] in the context of commercial negotiations. Even were it to be categorised as wrongful, it does not in my view break the chain of causation: see for example Stansbie v Troman [1948] 2 KB 48. In that case it was the defendant who created the opportunity for the burglar to enter the house which he should have guarded against. In my judgment in this case it was the defendants' infringements of the claimants' copyright which facilitated Mr Turner's actions in the context of the negotiations, which involved breaches of the confidentiality agreement. All this was moreover, in my view, a perfectly foreseeable consequence of the initial and subsequent infringements of the copyright in making an electronic copy and sending this to Cains for advice. It was foreseeable that once the defendants began to make use of the CAA and to infringe the claimants' copyright this would cause loss to the claimant. It matters not whether the precise concatenation of events is foreseeable: see Jolley v Sutton LBC [2000] 1 WLR 1082. The general risk which was foreseeable was that infringement of copyright would lead to losses to the claimants by undermining their special competitive position. In effect, the claimants' actions were steps taken acting reasonably in mitigation of their losses in reducing their price in response to the tortious actions of the defendant. 33 My conclusion therefore is that the defendants are liable in respect of the initial price reduction which occurred on the 1 March 2000…." The Master went on to hold that the later price reduction, including the agreement for rebate of the implementation fee, did not sound in damages: "By that stage the force of the trust mechanism as a negotiating tool had been expended" (paragraph 33). In the result, then, the Master awarded an agreed sum of £111,720 by way of damages to reflect the price reduction of 1 March 2000. THE APPEAL AON's first complaint is that the Master's award of a notional royalty of £15,000 and damages for loss of profit represents a species of double recovery. It is said that the loss of profit allegedly suffered in relation to Powerhouse flowed only from the infringements committed in the context of Apollo: those infringements were compensated by the notional royalty, and thus the loss of profit damages compensates usp again for the same infringement. In my judgment this argument is misconceived. The notional royalty of £15,000 was awarded, as the Master put it in paragraph 15 of his judgment (which I have read), "in respect of all the uses to which the defendants have put [the CAA] apart from the question of Powerhouse". It must, plainly, be elementary that an infringing copy may be put to several uses each of which, other things being equal, may give rise to a damages claim. The royalty was awarded, however, only for the use relating to Apollo. The use relating to Powerhouse was something else besides. The real question here is whether damages in respect of the Powerhouse price reduction were properly recoverable at all; and it is to this question that I now turn. The issue requires the court to consider the very basis upon which damages for breach of copyright are awarded. It will make for clarity if I first explain how Mr Monson for AON puts his case. He submits, correctly, that the normal measure of damage is the amount by which the copyright is depreciated, by the infringement, as a chose in action: see for example per Goff LJ as he then was in Paterson Zochonis v Merfarken [1986] 3 AER 522, 538b, citing Lord Wright MR in Sutherland Publishing [1936] Ch 323, 336. Here, however, the claim is not for depreciation of the copyright arising from an infringer's unauthorised use. The claim is for damage said to be consequential upon the unauthorised publication of the CAA to Cains, originally in April 1999. Mr Monson submits, again correctly, that (as is generally the case with claims in tort for consequential loss) it must be shown that the loss contended for has been caused by the wrongdoing in question, is not too remote, and is foreseeable. The Master rightly observed that Gerber v Lectra [1995] RPC 383 (Jacob J) and [1997] RPC 443 (Court of Appeal) shows that the usual rules of causation and remoteness apply in this area. Against that background Mr Monson submits, first, that the respondents' claimed loss was not a foreseeable consequence of any infringing act by AON. Since no infringing copies were made at the time of the Powerhouse negotiations before 7 March (which was, of course, after the alleged damage – the 1 March price drop – occurred), the respondents' case must be that their loss is attributable to the earlier infringement of April 1999 when the infringing copy was sent to Cains in the context of the Apollo scheme, and its foreseeability or otherwise must be assessed as at that date. But in that case, says Mr Monson, the 1 March price drop cannot be said to have been foreseeable: there was, if I may put it in my own words, a chasm of time and circumstance between the infringing act in April 1999 and the claimed loss in March 2000. On this aspect Mr Monson also submits that the respondents cannot save the day by recourse to a read-over into the law of copyright of the notion of foreseeability of risk of harm from the law of negligence: yet this, it is said, is what the Master did (paragraph 32) by reference to the personal injury case of Jolley v Sutton LBC [2000] 1 WLR 1082. Mr Monson next submits that the "chain of causation" is broken by three events or circumstances: (1) the fact that between April 1999 and January 2000 they had made a positive decision not to offer trust-based schemes to clients so that (Mr Monson's skeleton argument, paragraph 6.8) "the continued existence of an infringing copy of the CAA in the hands of Cains and on the appellant's computer in February 2000 was merely fortuitous": (2) the real cause of the price drop on 1 March 2000 was what Mr Turner said to Mr Borrill about AON's proposed trust scheme, but those representations were made in breach of the confidentiality agreement entered into by Powerhouse on 7 February 2000, so that what Mr Turner said was not merely an intervening cause, but one constituted by wrongdoing towards AON; and (3) Mr Turner's representations to Mr Borrill also miss-stated his true state of mind about the "robustness" of AON's trust-based scheme. I have to say that in my judgment none of these arguments touches the real point in the case. I return to the question: what is the basis upon which damages for breach of copyright are awarded? The question cannot be answered without consideration of the nature of the wrongdoing which breach of copyright represents. The nature of the wrong is clear enough. In a case where the copyright work is a written document, it consists in the unauthorised use of the actual text of the document. It does not consist in pirating the idea or ideas to be found in the text. The point is put clearly and simply in Halsbury's Laws (vol. 9(2), paragraph 56): "Ideas as such are not the subject matter of copyright, but only the form in which ideas are expressed." This is exemplified by the decision of Jacob J (as my Lord then was) in Work Model Enterprises Ltd v Eco System Ltd [1996] FSR 356, and many other cases. With respect I need not give the details. The proposition is perfectly elementary. That being so, the true point in this appeal is not to be found in Mr Monson's elaborate arguments about foreseeability and breaks in the chain of causation. It is that on the facts relating to Powerhouse the respondents have suffered no damage arising from the unauthorised deployment of the actual text of the CAA, as opposed to the idea or ideas which it contains. Certainly the 1 March price drop does not constitute any such damage (even assuming – a large assumption – that if the CAA had played no part in the advice given to Powerhouse the respondents would have won the contract at the pre-1 March price). The utility of the CAA for Mr Turner's purposes rested in the trust-based concept which it exemplified. Nothing in the exchange between Mr Turner and Mr Borrill on 1 March turned on the actual text of the CAA, despite the comment 'LGH's collections account agreement would do the trick'. Mr Turner and Mr Borrill were not discussing the words. What mattered was the idea. So much is forcibly demonstrated, in my judgment, by the solicitors' correspondence which I have cited, though it took place after 1 March. I have in mind in particular the references to "the type of scheme being promoted by Aon", "We, like Cains, have seen no actual proposed documentation", and "a trust of the nature proposed by Aon, if properly drafted and constituted". In fact the point goes further. It will be recalled that the relevant copyright was originally in the template CAA, drafted by Messrs Cooper Chan. It was first vested in Unicorn and assigned to USP in 1999. There can, as it seems to me (and the point was put to counsel in the course of argument), be no question of the copyright-protected text of the template being causative of any loss. As I have already stated, in its original form the template CAA was not satisfactory. It would have needed some alteration and development to be brought into practical effect for the purpose of implementing any trust-based scheme. So much, I understand, was common ground. It is a short step to the conclusion that in truth the parties are at one in accepting that use of the relevant protected text cannot be said to have been the genesis of the damage claimed. The Master, with respect, does not seem to have been alive to the critical point in the case. I conceive that his essential findings are to be found in paragraph 30 which I have read: "The advice from Cains together with that promise [sc. to supply the CAA] strengthened [Mr Turner's] negotiating position and enabled him to persuade Mr Borrill that the claimant was vulnerable to competition from the defendants… The reality is that it was the infringements that I have mentioned [sc of April 1999] which put the defendants in a position to rely on the trust concept in the bargaining with Mr Turner and which he could then use against Mr Borrill." This altogether loses sight of the difference between the text and the idea which it represents. I should add that nothing I have said contradicts HHJ Weeks' statement, which I have read, that "by using the final version in an attempt to advance their case with Powerhouse, LGH wrongly appropriated the labour and skill of Cooper Chan and so infringed the copyright of Unicorn which had been assigned to USP". The judge's reference is to the transmission of the infringing copy on 7 March. On the Master's findings, as I have made clear, that infringement caused no damage: though I shall have to consider it in the context of the respondent's notice. In the circumstances, the appeal must in my judgment be allowed on the simple ground that the claimed loss is not attributable to any breach of copyright: not because it was unforeseeable or otherwise too remote for the reasons urged by Mr Monson, but because in principle, and for the reasons I have given, it lies beyond the scope of protection which the law of copyright affords. In a sense, this true basis for the appeal's succeeding was just around the corner from Mr Monson's skeleton. He cited passages from two opinions of Lord Hoffmann which should have pointed the way to the real point in the case. First, Kuwait Airways Corporation against Iraqi Airways [2002] 2 AC 883 at paragraph 128: "There is therefore no uniform causal requirement for liability in tort. Instead, there are varying causal requirements, depending upon the basis and purpose of liability. One cannot separate questions of liability from questions of causation. One is never simply liable; one is always liable for something and the rules which determine what one is liable for are as much part of the substantive law as the rules which determine which acts give rise to liability… [T]he question of causation is decided by applying the rules which lay down the causal requirements for that form of liability to the facts of the case." Then in South Australia Asset Management Corp v York Montague Ltd [1996] 3 WLR 87, 92 – 94: "Before one can consider the principle on which one should calculate the damages to which a plaintiff is entitled as compensation for loss, it is necessary to decide for what kind of loss he is entitled to compensation… Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful." This reasoning demonstrates the intimacy between the nature of the wrong alleged and the damage which by law may be attributed to it. It serves also to dispel the notion (if anyone entertains it) that the law's different approaches to causation, according to the kind of case before the court, is in any sense random; the question is always a constant one, namely what is the loss for which the defendant should justly be held responsible. The nature of the cause of action which the claimant pleads and proves will often determine the question's answer, and will always condition it. In this case, with respect, the Master's mistake was to forget the nature of the cause of action in copyright. THE CROSS-APPEAL The cross-appeal articulated in the re-amended respondent's notice proceeds upon the premise that the appeal is successful: that is, that the award of £111,720 damages for the 1 March 2000 price drop is set aside, as I have held it should be. In that case, the respondents say that they should be awarded damages of £40,000 for loss of the full implementation fee which had been put at that figure. They submit also that the royalty awarded by the Master, £15,000, should be increased to take account of the admitted infringement of 7 March 2000 when Mr Mian supplied the CAA to Biddle & Co with a copy to Mr Turner. Before dealing with those arguments I should confront another assertion made in the respondent's notice (it was in fact the subject of the re-amendment), to the effect that the Master's award of £111,720 damages should be upheld on a further ground, namely that Cains must have made an additional infringing copy in February 2000 in order to prepare their advice for Powerhouse. Mr Leaver QC for the respondents did not press this at the hearing. It is obviously possible that such a further copy was made, but it is not in my judgment proved that it was. More important, however, the point cannot, it seems to me, make any difference to the outcome. If the Master's award of damages is bad because it conflates damage flowing from use of the copyright text with damage flowing from use of the ideas in the text, it is no less bad if another copy of the CAA was created along the road to Mr Turner's deployment of the ideas contained in it. The same consideration gives the lie to the claim for damages of £40,000 representing the value of the implementation fee. I have stated the relevant facts. For convenience I repeat this much only, that on 24 March 2000 the respondents agreed a further price reduction on the basis that the implementation fee would come down from £40,000 to £25,000 and would be liable to be rebated if the respondents' scheme generated fees in excess of a stated level. Mr Leaver submitted (skeleton argument paragraph 63) that if the Master's conclusion as to the 1 March price drop is disturbed, then "the value of the CAA as a negotiating tool had not been exhausted by [24 March]". But this is simply a non sequitur. In any event, if the 1 March price drop cannot attract damages because it cannot be attributed to any use of the copyright text as such, the same is true of the 24 March price drop – including, therefore, Mr Borrill's concessions on the implementation fee. Mr Leaver submitted that because Powerhouse had the CAA text on 7 March, it must be harder for AON to contend that losses thereafter suffered by the respondents were not attributable to the use of the actual text. But the correspondence with Biddle & Co, which I have set out, plainly shows that the words of the CAA were not the driving force of anything. Accordingly there is nothing in the cross-appeal relating to the implementation fee. In my judgment, however, the royalty is another matter. The basis of the Master's award of £15,000 related to the infringement committed in connection with Apollo, and not Powerhouse. Mr Monson submitted that the award must also have reflected the 7 March infringement relating to Powerhouse, and so there is no call for an increase in the royalty notwithstanding the appeal's success (if my Lords agree) on the damages claim. I have already explained why I disagree, by reference to the language of the Master's judgment (paragraph 15). The royalty needs to be uplifted to take account of the 7 March infringement. The only remaining question is, by how much. Mr Leaver (skeleton argument paragraph 60) contends for an additional £50,000. The figure comes from Mr Borrill's evidence. Its purported justification is that in the Powerhouse context USP and AON were head-to-head competitors and any licence to use the CAA (let alone any sale of the copyright in it) would have been at a substantial price. Mr Monson submits that if (contrary to his first case) the figure of £15,000 is to be increased at all, it should be by a much more modest amount. He draws attention to the fact that there was evidence from Mr Chan that he would have charged about £20,000 for producing the CAA. He says that that sum would have included sale of the copyright, not just a licence. But he reminds us that the template CAA itself required substantial amendment. Mr Witt gave evidence that Messrs Collyer Bristow estimated the cost of producing trust documents in the context of the Tesco scheme at £5,000. This is, of necessity, a rough and ready exercise. We are required to put a value on a transaction which never took place – it is a notional royalty; and therefore, of course, the evidence is subjunctive: what this or that party would have done in circumstances which were not actually in contemplation. Whether one estimates a figure for a general licence to use the CAA, or a figure which might have been negotiated for a licence to release the CAA to AON and Powerhouse for the purpose of negotiations in February 2000 in which the copyright owners were of course themselves competitors, I am clear that the existing figure of £15,000 is inadequate. I would uplift it by £20,000 to a total award by way of notional royalty of £35,000, and to that extent would allow the cross-appeal. Jacob LJ: I agree. I would just add this summary of my opinion as to why the main appeal succeeds. Copyright in a literary work is infringed if the work is copied exactly or substantial (see s.16(1)(a) and (3) of the Copyright Designs and Patents Act 1988). It is the text of the work which is protected from copying. The head of damage claimed here in no way turns on the fact that the exact text was copied. It is not attributable at all to the precise nature of the text used by the defendants. So it did not flow from the fact that the exact text was taken – it was not caused by the infringement. Lord Justice Waller: I agree.

Sir Simon Tuckey: This is an appeal by the claimant in these proceedings, Spy Academy Ltd, with the permission of Rix LJ from an order for security for costs made on 15 September 2008 by HHJ Simon Brown QC in the Birmingham Mercantile Court. Security of £20,000 was ordered, to be paid within 14 days, failing which there was to be judgment for the defendant, with costs, without further order. On the claimant's failure to provide the security, on 7 October 2008 the judge summarily assessed the total costs payable to the defendant in the sum of £15,048. The proceedings arise out of a licensing agreement made in June 2006 under which the claimant licensed to the defendant, a large United States electronics and optical product manufacturer, the right to use its Spy Academy brand to re-brand a range of the defendant's products, then marketed under the brand name Matrix Zone. The parties hoped that re-branding with the Spy Academy stories, images and other enticements for the youth market into which these products were sold would increase sales and bring substantial spin-off benefits to the claimant from the exposure of its Spy Academy brand to a mass market. The licence was to run for ten-and-a-half years in the United States and three years in Canada, Mexico and Latin America. It is unnecessary to analyse the agreement in detail but clause 3.6 required the defendant to: "use its reasonable endeavours artistically, creatively and entrepreneurially to maximise the value of the products it creates or sales under this Agreement." Clause 12.2.5 provided that "the Licensee…will test one of its current "Matrix Zone" products using the new The Spy Academy brand, name, images and logo and (subject to sales not falling below current "Matrix Zone" levels for the same product) will re-brand its entire on-going and future "Matrix Zone" range as The Spy Academy within 9 months from the start of the test. The test will commence within four months of the start of this agreement. If the re-branding of the entire "Matrix Zone" range does not occur within nine months from the start of this agreement, the contract will be deemed cancelled and all rights will revert back to the original rights' holder in such situation, the Licensor will notify the Licensee in writing giving 30 days notice." It is the claimant's case that the defendant failed to honour its obligations under the agreement and, without any warning, announced that it had discontinued the re-branded range of products. This led the parties to agree, in September 2007, that the licence would be terminated but expressly on terms that this did not affect the parties' accrued rights and liabilities at the date of the termination. The claimant contends that the defendant's prior breaches of the agreement have caused it considerable loss, although its claim is limited to just under £50,000. The defendant contends that sales of the test product referred to in clause 12.2.5 did not reach previous levels and so its obligation to re-brand its entire Matrix Zone range never arose. This contention is hotly contested by the claimant, who has produced e-mails which suggest -- and I say no more than that -- that he might be right. The defendant further contends that, as the re-branding of the entire range did not in fact occur within nine months, the contract was deemed cancelled irrespective of whether sales of the test product were successful or not. But, as Rix LJ observed when granting permission, it is reasonably arguable from the terms of the contract that the termination of the contract through cancellation is there for the protection of the licensor and the original rights holder and not for the protection of the licensee, the defendant, which has, ex hypothesi, failed to carry out its obligations to re-brand within nine months. So that, in a nutshell, is the dispute between the parties. It is not one about which one can say at this stage that one or other of the parties is bound to win. But I agree with Rix LJ that the claim is a perfectly bona fide claim with a perfectly reasonable prospect of success. Mr Quirk, who appears for the defendant today, did not take issue with this assessment. This leads me to the procedural history which preceded the hearing before the judge. The present claimant is an English company, the creature of Mr Haydn Price, its managing director and shareholder. It was formed as a special purpose vehicle to license The Spy Academy intellectual property rights to the defendant. It had and has no assets apart from its claim against the defendant, and Mr Price has accepted that it is impecunious. Mr Price owns at least two other companies, Spy Academy Holdings Limited ("Holdings") and Pablo Star Limited. Holdings, he says, has no assets and is about to be struck off the Register. Pablo Star is also in a parlous state, although it is involved in protracted litigation, which Mr Price says has good prospects of success. Mr Price is acting in person for the claimant in Pablo Star and this litigation. He started this claim in the name of Holdings on 15 October 2007. The defendant applied to strike the claim out because the wrong claimant had been named, and the Particulars of Claim disclosed no cause of action. At a hearing on 11 March 2008, HHJ Brown substituted the present claimant for Holdings under the slip rule and ordered the claimant to file Amended Particulars of Claim to clarify the case he was making, which he did. The defendant applied again to strike the claim out on the basis that it was vexatious and an abuse of process. That application was not proceeded with when the defendant restored the claimant company to the Register of Companies, from which it had been struck off. But on 24 June 2008 the defendant applied for the first time for security for costs. What happened next is unfortunate. At a hearing which neither party attended, HHJ Alton QC ordered that the application for security should be heard on 15 September 2008, that, if the claimant wished to rely on evidence in opposition to the application, it should be filed and served by 4pm on 29 August 2008 and that neither party should be entitled to rely on evidence which had not been filed and served in accordance with her order. Before this order was served, Mr Price told the court that the claimant's address for service was "Haydn Price" at a Birmingham address. That address was an accommodation address. The court sent HHJ Alton's order to this address, but the letter was addressed to the claimant company, a name which the address provider did not recognise, with the result that the letter was not sent on to or seen by Mr Price. Some time after 29 August he was alerted to what had happened and promptly prepared, filed and served on the court and the defendant a long statement dated 7 September. When the matter came before the judge on 15 September, the defendant, represented by a local solicitor, objected to the admission of this statement, which it is apparent the judge had not seen or read. Mr Price attempted to explain what had happened but the judge does not appear to have understood. In refusing to admit the statement, he simply said that Judge Alton's order had been served on the right address. So it had, but it had not been addressed to the right person, which is why Mr Price did not receive it. At all events the hearing proceeded before the judge for a relatively short time, in which Mr Price attempted to deal orally with the merits of the claim and why he said that an order for security should not be made. The judge then gave a short judgment in which he said that the claim did not look of much merit and that the defendant might well have a valid defence to it. He concluded simply by saying: "I am satisfied that the justice of this particular instance is that a company which is facing another limited company without any demonstrable assets is entitled to security for the costs of defending these fairly convoluted proceedings. It would be very unjust on the defendant if it fought the case over three or four days and then found that it could not recover any of the costs of having to do so." It is apparent from that passage and from the whole of this very short extempore judgment that the judge did not refer specifically to any of the reasons which Mr Price advanced, albeit briefly, as to why the order should not have been made. Mr Quirk submits that the judge's judgment cannot be criticised for his assessment of the merits, so much of the evidence in Mr Price's statement which went to the merits made no difference and had no effect on the result of the hearing. I am not able to accept this submission because accepting, as I do, Rix LJ's assessment of the merits, it does seem to me that to say of the claim that it does not look of much merit and that there may well be a valid defence to it does not suggest that the judge was looking at the merits neutrally in the way which Mr Quirk has today conceded he should have done. Mr Quirk also argues that, albeit shortly, Mr Price had been able to make the points which were contained in his statement orally. All in all, he says that the judge's decision not to admit the statement cannot be characterised as a serious procedural error and did not make it unjust. The decision not to admit the statement was within the wide ambit of the judge's discretion. I am afraid I cannot accept those submissions. With the benefit of hindsight I accept, I think the judge should have admitted Mr Price's statement. Through no fault of his own Mr Price had not received Judge Alton's order and, if the judge had understood this fully, which I doubt he did, I think he would have admitted the statement. Furthermore, Mr Price was a litigant in person and his statement developed much more cogently his reasons for opposing the application for security than he was able to advance orally. The impact which those oral submissions made on the judge can, I think, be measured by the fact that he does not refer to them in the short judgment which he gave. I am sure that if he had seen and read the statement prepared by Mr Price he would have referred to his objections to the making of the order which Mr Price had developed at some length. For those reasons, I think the judge's decision was flawed; that his refusal to admit the statement did amount to a serious procedural error and rendered his decision unjust. The consequence is that it now becomes necessary for us to decide, on the information we have, whether or not an order for security for costs should be made in this case. In other words, it is for us to exercise the discretion afresh. Obviously the precondition for making such an order (reason to believe that the claimant would be unable to pay the defendant's costs if ordered to do so) is satisfied. The issue is whether, "having regard to all the circumstances in the case", it is just to make the order. So far as is relevant to this case, the authorities establish that the factors to be taken into account when exercising this discretion include whether the claim is bona fide and not a sham, whether the claimant has a reasonably good prospect of success, whether the application for security was being used oppressively so as to stifle a genuine claim, whether the claimant's want of means has been brought about by any conduct by the defendant and whether the application for security is made at a late stage in the proceedings. It must also, obviously, take into account the prejudice to a defendant who, if successful, will be faced with the prospect of recovering nothing unless security for costs has previously been ordered. I have already dealt with the merits of the claim in this case. It seems to me, in the circumstances, that the claimant can say here that its want of means has been brought about by the conduct of the defendant, since it is a company formed for the sole purpose of this transaction, which failed to generate revenue because of the defendant's breaches of contract. The claimant can also rely on the fact that the application for security was not made at the outset. There may have been good reasons for not doing so earlier, but the fact is that the proceedings had been on foot for nine months before the application was made. But the argument before us has mainly focused on the issue as to whether the application is being used oppressively to stifle a genuine claim. Here the defendant relies upon what Gibson LJ said in the case of Keary Developments v Tarmac Construction [1995] 1 AER 534 at page 540 in which the court said: "Before the court refuses to order security on the ground that it would unfairly stifle a valid claim, the court must be satisfied that, in all the circumstances, it is probable that a claim would be stifled… …the court should consider not only whether the plaintiff company can provide security either from its own resources to continue the litigation, but also whether it can raise the money needed from its directors, shareholders or other backers or interested investors. As this is likely to be peculiarly within the knowledge of the plaintiff company, it is for the plaintiff to satisfy the court that it would be prevented by an order for security from continuing the litigation…" Mr Quirk submits that the claimant has not discharged and cannot discharge the onus of establishing that it is unable to raise funds from other sources and that therefore it cannot rely upon this factor. The claimant's statement of 7 September 2008 dealt with this quite shortly. But in his skeleton argument for the purposes of today's hearing which, as we are considering the matter afresh, we can take into account, he deals with the matter more fully, he accepts that as the claimant's managing director his own circumstances are relevant. Explaining that he owns the companies to which I have referred, he says: "I further can confirm to the court on behalf of [the claimant] that there is no prospect of funds being available and forthcoming from any outside source to fund such security and that as the sole shareholder for all the relevant companies I am personally in no position to provide the level of security [the defendant] seeks having only recently finished an IVA and having no realisable assets at present. I do not own a house and or other tangible assets. The money [the claimant] used to pay the £1550 costs order to [the respondent] was borrowed from a friend for 6 months and that friend now needs her money back to pay unforeseen bills." There is an e-mail that confirms this. "My previous investors do not want to know, my bankers have demanded their money back and Pablo Star is also fighting off a winding up petition. I was also evicted from my home of many years. I would like to point out that these wider financial problems have solely been caused by the large amount of money Pablo Star is owed…" He also relies on the fact that, in the Pablo Star litigation to which I have referred, this court as recently as 28 May (two months ago) Rix LJ said: "I turn to the question of stay on the payment of costs and the question of security for costs. It is common ground that Pablo Star is not worth powder or shot. It is not entirely common ground that other companies with which Mr Haydn Price is involved may be in exactly the same position but the fact of the matter is that no-one can find any money anywhere. Whether Mr Price himself can raise any money is perhaps not well attested in the evidence, although, late in the day, Mr Price has addressed that matter with the help of some documentary support, but he has only put it forward today in court. It does seem, however, that Mr Price and his companies have fallen on ill days in the last few years. His companies are worthless; they are close to being wound up or struck from the register; he has lost his home; he has no money in his account; he has tried to borrow from friends as he has shown in some material that he has put before the court and has failed. Mr Price has produced some documents with the skeleton argument and Mr Quirk has analysed those documents with skill, making the point that many of them do not show what the state of affairs is at the present time and go back as long ago as 2007. But, as Mr Price points out, it is always difficult for a party in his position to prove a negative. Having listened carefully to Mr Quirk's arguments on this aspect of the case, I am not persuaded that there is any realistic chance of the claimant being able to raise money to provide security personally. I appreciate that the cases show that the onus is on him to show that he cannot, but, looking at the totality of the material which is now before us, I think he has satisfied that onus. It follows that any worthwhile order in favour of the defendant would have the effect of stifling the claimant's claim. This factor is not determinative of the matter but obviously points strongly against making an order for security. All in all, balancing the factors to which I have referred and exercising the discretion afresh, I do not think it would be just to make an order for security in this case. It follows that I would allow the claimant's appeal against the judge's order for security and set aside the judgment given in default of compliance with that order and the consequential orders for costs which the judge made. I have so far not referred to the fact that, at the time when the judge made his order, the claimant had an outstanding Part 18 application for further information. That application, it appears (although not clearly) was dismissed by the judge without considering its merits in the wake of his dealing with security for costs. At all events Rix LJ gave permission to appeal the dismissal of that application. As a consequence of allowing the appeal against the order for security, I would also allow the appeal against the dismissal of the Part 18 application and remit that application to be heard on its merits in the Birmingham Mercantile Court. Lord Justice Sedley: I agree. Like Sir Simon Tuckey I think the judge made a procedural mistake which had substantive consequences for the claimant, making it necessary for this court to reappraise for itself the application for security for costs. Doing this, I agree that, again, for the reasons my Lord has given, this is not a case in which security should be ordered. I would add my own appreciation of the balanced and well-focused arguments that have been advanced by Mr Quirk on behalf of the respondent/defendant in seeking to sustain the judge's order. Order: Appeal allowed

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Bondfield Construction Company Limited, 2022 ONCA 302 DATE: 20220414 DOCKET: C68507 Feldman, van Rensburg and Coroza JJ.A. BETWEEN Her Majesty the Queen Appellant and Bondfield Construction Company Limited, J.M.R. Electric Ltd., and Toromont Industries Ltd. Respondents Daniel Kleiman and Alessandra Hollands, for the appellant Robert E. Hutton and Ciara L. Pittam, for the respondent J.M.R. Electric Ltd. Susan L. Crawford, for the respondent Toromont Industries Ltd. No one appearing for the respondent Bondfield Construction Company Limited Heard: November 2, 2021 by video conference On appeal from the judgment of Justice Christine E.J. Malott of the Ontario Court of Justice, dated December 2, 2019, allowing an appeal from the convictions entered by Justice of the Peace Maureen Ryan-Brode, dated May 5, 2017. van Rensburg J.A.: A. OVERVIEW [1] This is an appeal by Her Majesty the Queen in Right of Ontario (the “Crown”), with leave, from a judgment allowing appeals from convictions of offences under the Occupational Health and Safety Act , R.S.O. 1990, c. O.1 (the “OHSA”), that were prosecuted by the Ministry of Labour. [2] The charges arose after a field service technician on a construction project was severely burned by an arc flash while cleaning an energized part of a switchgear cabinet using a paintbrush with a metal band. After having worked on de-energized cabinets, on returning from his lunch break, the worker inadvertently opened the wrong cabinet to clean, causing his paint brush to come into contact with live input stabs [1] at the rear of the cabinet. The work was being performed in a high-voltage electrical room to which the door had, at times, been propped open, permitting access by various tradespeople. [3] The appeal engages the interpretation of certain provisions of the regulation Construction Projects , O. Reg. 213/91, enacted under the OHSA, dealing with Electrical Hazards. The central issue is the meaning of “energized exposed parts of electrical equipment” in two regulatory provisions: s. 184(1), which provides that only authorized persons shall enter or be permitted to enter a room containing exposed energized electrical parts, and s. 190(4), which requires that the power supply to electrical equipment be disconnected, locked out of service, and tagged if work is to be done on or near energized exposed parts. [4] The justice of the peace (the “trial justice”) convicted the three respondents of offences under the OHSA in relation to breaches of ss. 184(1) and 190(4) of O. Reg. 213/91, and also convicted the respondent Toromont Industries Ltd. (“Toromont”) of an offence relating to s. 187 of the regulation (respecting the use by its employee of a tool capable of conducting electricity so close to energized electrical equipment that it could make electrical contact). The trial justice acquitted the three respondents of offences relating to s. 182(1) of the regulation (respecting the professional qualifications required to connect, maintain or modify electrical equipment or installations). [5] On appeal, a judge of the Ontario Court of Justice (the “appeal judge”) overturned the convictions and entered acquittals on the offences related to ss. 184(1) and 190(4), after concluding the actus reus of these offences had not been established. She directed a new trial of the offence related to Toromont’s breach of s. 187, after finding that the trial justice failed to consider the “reasonable belief in a state of facts that, if true, would have rendered the act or omission innocent” aspect of its due diligence defence. The appeal judge concluded that it was unnecessary to consider the other grounds for the conviction appeals, in particular other challenges to the trial justice’s assessment of the due diligence defences, and the sentence appeals. [6] I would allow the Crown’s appeal in part. I have concluded that the appeal judge erred in her interpretation of s. 190(4), when, after concluding that this provision applies to energized electrical equipment that is “not concealed or covered”, and observing that the electrical parts were behind circuit breakers with covers, she found that the actus reus for the s. 190(4) offences was not made out. Although the appeal judge applied the same erroneous interpretation to the word “exposed” in s. 184(1), I would not interfere with her conclusion that the Crown failed to establish the actus reus of this offence. I would, however, not adopt all aspects of the trial justice’s interpretation of these provisions. I will explain why I agree with her conclusion that the actus reus for the s. 190(4) offence was established, and why, in respect of s. 184(1), I would conclude that the actus reus of that offence was not established. [7] As for s. 187, contrary to the appeal judge’s conclusion, and as conceded by Toromont, the trial justice did not fail to address the reasonable mistake of fact aspect of Toromont’s due diligence defence to that charge. Because of her conclusion on this issue, the appeal judge declined to address the other errors alleged by Toromont in respect of its due diligence defence and sentence for the s. 187 offence. [8] I would accordingly set aside the acquittals for the offences in relation to s. 190(4), and uphold the acquittals for the offences in relation to s. 184(1). I would remit the issues not determined by the appeal judge in relation to the ss. 190(4) and 187 offences, namely, the respondents’ due diligence defences and sentence appeals, to another appeal judge of the Ontario Court of Justice for determination. B. BACKGROUND FACTS [9] On May 28, 2013, Stephane Audet, a field service technician, was injured during the construction of the Southwest Detention Centre (the “SWDC”) in Windsor, when the conductive tool he was using to clean a switchgear cabinet made contact with an energized part at the back of the cabinet. The respondent Bondfield Construction Company Limited (“Bondfield”) [2] was in charge of the project and had contracted the respondent J.M.R. Electric Ltd. (“J.M.R.”) for electrical installations. J.M.R., in turn, had contracted Toromont to supply a custom switchgear and two emergency generators for the project, and to commission, test and train workers on the equipment. Audet was employed by Toromont. [10] The switchgear involved in the incident was the electric power system for the SWDC, which had the ability to distribute power to the entire building or to isolate the power in certain areas. The equipment was located in two adjacent rooms on the upper level of the project: an electrical room, housing the switchgear and two transformers, and a generator room, housing the two generators. The electrical room was accessed from a main corridor through a double door and the generator room was, in turn, accessed through the electrical room. [11] J.M.R. was responsible for controlling access to the electrical room by restricting entry to authorized persons. J.M.R. posted warning signs on the doorway and entrance to the electrical room, and installed a lock on the double doors. Two of J.M.R.’s master electricians and the Bondfield site superintendent had keys for the door. The J.M.R. master electricians visited the electrical room several times each day. Multiple trades entered and passed through the room, which was also occasionally used for storage. There was evidence, accepted by the trial justice, that the door was occasionally propped open, leaving no controls on entry into the electrical room. [12] The switchgear assembly measured approximately 40 feet in length and 9 feet in height. It had an “A” side and a “B” side, that could be joined or separated by a “middle section” to operate concurrently or independently. The switchgear was completely enclosed on all sides and the top with sheet metal, except for ventilation openings and inspection windows. Doors and removable covers provided access to the interior, which contained various electrical devices including circuit breakers – electrical switches designed to open and close electrical circuits to control and direct the distribution of energy. The circuit breakers were housed in modular cabinets accessed by loosening and removing thumb screws on the cabinet’s door and then opening the door. The circuit breakers could be moved in and out of their cabinets on a drawer slide. [13] Once the switchgear and generators were installed, Toromont sent field service technicians to the project to commission and test the generators, which involved verifying their installation according to the manufacturers’ specifications and testing the functionality of different components, including the interconnections between the generators and the switchgear. [14] Audet and a second field service technician were assigned to commission and test the two emergency generators at the SWDC. They were authorized by J.M.R. to enter the electrical and generator rooms for this purpose. While both were experienced technicians, neither was a licensed electrician or electrician apprentice. [15] In the second week at the project, commencing on May 27, 2013, the two technicians started to run troubleshooting tests on the equipment. In the course of this testing, a number of false alarms activated in the electrical room. It was determined that the false alarms were caused by metal filings in the switchgear cabinets that had been produced when electricians drilled holes to install the conduits for the communication wiring connecting the switchgear and generators. On May 28, the technicians agreed that Audet would clean the affected switchgear cabinets in order to remove the metal filings. [16] Before Audet began working on the switchgear cabinets, the circuit breakers had been racked out to prevent the transmission of energy, and locked so that they could not be reconnected to the power supply. [3] The power had been shut down on the “A” side and middle section of the switchgear, while the “B” side remained energized. This meant that the stabs at the rear of some of the cabinets (not the ones Audet was supposed to enter) were still energized. However, all of the cabinets were racked out, locked and tagged in the same manner. The markers did not identify whether a cabinet was energized, only that it had the potential to be energized and was not to be racked back in. To determine which cabinets he was authorized to enter, Audet referred to a schematic diagram. [17] In the morning, Audet, while wearing proper personal protective equipment (“PPE”), conducted a voltage test on the cabinets he was intending to clean to confirm that they were in fact de-energized. He then removed most of the PPE and proceeded to clean the cabinets, using a vacuum and a paintbrush with a metal band. When he resumed work after his lunch break, Audet intended to clean one of the de-energized cabinets, but inadvertently entered an energized cabinet. As Audet reached to the rear of the cabinet to clean the metal filings, the conductive metal band on his paint brush made contact with an energized input stab, causing an electrical fault within the cabinet and throughout the switchgear. The result was an arc flash, that is, an electrical explosion, producing a large ball of fire that erupted from the cabinet, inflicting severe burns on Audet and causing extensive damage to the switchgear. [18] Following an investigation by the Ministry of Labour, the three respondents were charged with offences under ss. 23(1)(a) and 25(1)(c) of the OHSA. The charges related to their alleged failures, as an employer in the case of Toromont and J.M.R., and as a constructor in the case of Bondfield, to ensure that certain measures and procedures prescribed by O. Reg. 213/91 were carried out at the worksite. These included the measures and procedures prescribed by ss. 184(1) and 190(4) of the regulation, and in the case of Toromont, s. 187. C. RELEVANT STATUTORY AND REGULATORY PROVISIONS [19] Sections 23(1)(a) and 25(1)(c) of the OHSA prescribe the statutory duties of constructors and employers: 23 (1) A constructor shall ensure, on a project undertaken by the constructor that, (a) the measures and procedures prescribed by this Act and the regulations are carried out on the project; 25 (1) An employer shall ensure that, (c) the measures and procedures prescribed are carried out in the workplace [20] The relevant provisions of O. Reg 213/91 are found under the title “Electrical Hazards”, a part that comprises ss. 181 to 195.3 of the regulation. All three respondents were charged with having failed to comply with ss. 184(1) and 190(4). In particular, it was alleged that, contrary to s. 184(1), they had permitted unauthorized persons to enter a room with exposed energized electrical parts, and that, contrary to s. 190(4), they had not ensured that the power supply was disconnected before work was to be done on or near exposed energized electrical parts. [21] Sections 184 and 190 provide as follows (I include these sections in their entirety to provide necessary context): 184. (1) No person, other than a person authorized to do so by the supervisor in charge of the project, shall enter or be permitted to enter a roo m or other enclosure containing exposed energized electrical parts. (2) The entrance to a room or other enclosure containing exposed energized electrical parts shall be marked by conspicuous warning signs stating that entry by unauthorized persons is prohibited. 190. (1) This section applies if work is to be done on or near energized exposed parts of electrical equipment or of an electrical installation or conductor. (2) An employer shall, (a)  establish and implement written measures and procedures for complying with this section to ensure that workers are adequately protected from electrical shock and burn; and (b)  make a copy of the written measures and procedures available to every worker on the project. O. Reg. 627/05, s. 7. (3) The worker shall follow the written measures and procedures. (4) Subject to subsection (9), the power supply to the electrical equipment, installation or conductor shall be disconnected, locked out of service and tagged in accordance with subsection (6) before the work begins, and kept disconnected, locked out of service and tagged while the work continues. (5) Hazardous stored electrical energy shall be adequately discharged or contained before the work begins and shall be kept discharged or contained while the work continues. (6) The following rules apply to the tagging of the power supply under subsection (4): 1.  The tag shall be made of non-conducting material and shall be installed so as not to become energized. 2.  The tag shall be placed in a conspicuous location and shall be secured to prevent its inadvertent removal. 3.  The tag shall indicate, i.  why the equipment, installation or conductor is disconnected, ii.  the name of the person who disconnected the equipment, installation or conductor, iii.  the name of the person’s employer, and iv.  the date on which the equipment, installation or conductor was disconnected. 4.  The tag shall not be removed unless it is safe to do so. (7) A worker, before beginning work to which this section applies, shall verify that subsections (4) and (5) have been complied with. (8) If more than one worker is involved in work to which this section applies, a means shall be provided to communicate the purpose and status of, (a)  the disconnecting, locking out and tagging of the electrical equipment, installation or conductor; and (b)  the discharging and containment of any hazardous stored electrical energy. (9) Locking out is not required under subsection (4) if, (a)  in the case of a conductor, it is adequately grounded with a visible grounding mechanism; (b)  in the case of equipment or an installation, (i)  the power supply is less than 300 volts, the equipment or installation was not manufactured with provision for a locking device for the circuit breakers or fuses, and a written procedure has been implemented that is adequate to ensure that the circuit is not inadvertently energized, or (ii)  the power supply is 300 or more volts but not more than 600 volts, the equipment or installation was not manufactured with provision for a locking device for the circuit breakers or fuses, a written procedure as to how work is to be done has been implemented and the work is supervised by a competent worker to ensure that the circuit is not inadvertently energized. [Emphasis added.] [22] Section 187 of the regulation, which applies to an offence of which Toromont was convicted at first instance, is as follows: 187. Tools, ladders, scaffolding and other equipment or materials capable of conducting electricity shall not be stored or used so close to energized electrical equipment, installations or conductors that they can make electrical contact. D. TRIAL DECISION [23] The trial justice convicted the respondents under ss. 23(1)(a) (in the case of Bondfield) and 25(1)(c) (in the case of Toromont and J.M.R.) of failing to ensure that the measures and procedures under ss. 184(1) and 190(4) were carried out. She also convicted Toromont of failing to ensure that the measures and procedures under s. 187 were carried out. In the course of her reasons, she concluded that the actus reus for each of these offences was made out. What follows is a brief summary of her reasons on this point. I will not address the trial justice’s treatment of the due diligence defences, which are not pertinent to this appeal, except briefly in relation to s. 187. (1) The offences under s. 190(4) [24] Section 190(4) requires that before the work begins, and while it continues, the power supply to the electrical equipment shall be disconnected, locked out, and tagged. The defence argued that s. 190(1) sets out necessary preconditions for s. 190(4), and that these preconditions did not exist in this case. First, they submitted that, contrary to s. 190(1), work was not to be done “on or near energized exposed electrical parts” because the part Audet contacted, which was located behind fastened cabinet doors, was not “exposed”. [25] In rejecting this argument, the trial justice stated that the word “exposed” in s. 190, in the context of a dangerous high-voltage electrical room, means “easily accessible to an unauthorized person”, and that to hold otherwise would be to deprive any such person of the protection contemplated by the OHSA. She concluded, “I find that an energized part of electrical equipment in a cabinet that is fastened by two thumb screws and easily accessible is exposed within the meaning of the section”: at para. 28. [26] The defence’s second argument was that the language “if work is to be done” refers to where work is intended to be done, and that because Audet knew he was not to work on energized parts, s. 190(4) did not apply. The trial justice rejected this argument. She held that such an interpretation would restrict the application of the section to instances where workers intentionally work on energized equipment and remove from its ambit those who inadvertently work on energized equipment. Instead, she viewed the phrase “if work is to be done” as importing a temporal component, which is “consistent with section 190(4) which requires that the power supply to the electrical equipment be disconnected, locked out and tagged before the work begins”: at para. 31. [27] The trial justice found as a fact that on May 28, 2013, Audet was assigned to work near energized equipment and as a result inadvertently worked on energized equipment: at para. 32. She found that “the equipment was easily accessible by simply undoing two screws and therefore exposed to untrained people in the vicinity”: at para. 32. Since “work was to be done on or near energized exposed parts of electrical equipment” and the power supply to the equipment had not been disconnected, locked out and tagged, the actus reus of the s. 190(4) offence was established. (2) The offences under s. 184(1) [28] Section 184(1) of the regulation mandates that only authorized persons may enter or be permitted to enter a room or other enclosure containing energized electrical parts. The trial justice found that this section applied to the electrical room where the accident took place because, based on her interpretation of “exposed” in s. 190, the room contained exposed energized electrical parts. [29] The trial justice held that s. 184(1) requires that the Crown establish that a defendant “failed to take measures and procedures to ensure that unauthorized persons did not enter the electrical room”: at para. 60. She rejected the defence argument that evidence of the presence of an unauthorized person in the electrical room at the time of the specific offence is required in order to establish the actus reus of the offence. [30] The evidence was that the electrical room was used as a hallway to the generator room and as a storage area for equipment, and that the room was very busy with many tradespeople coming and going: at para. 53. The trial justice was satisfied on the evidence that at times on or about May 28, 2013, the door to the electrical room was propped open, leaving no controls on entry into the room: at para. 63. She therefore concluded that the actus reus of the s. 184(1) offences had been established: at paras. 63-64. (3) The offence under s. 187 [31] The trial justice found that, contrary to s. 187 of the regulation, Toromont allowed its employee to use tools capable of conducting electricity so close to energized electrical equipment that they could make electrical contact. This finding was specifically in respect of the paintbrush with a metal band that Audet had been using. The Crown thus made out the actus reus of this offence as well. (4) The due diligence defences [32] For the purpose of this appeal, it is sufficient to note that, after considering the evidence and arguments of the parties, the trial justice concluded that none of the respondents had established a due diligence defence in respect of ss. 184(1) and 190(4), and that Toromont had not established such a defence in respect of s. 187. (5) The sentences [33] The trial justice sentenced Bondfield to a fine of $150,000 for the offence in relation to s. 190(4) and $25,000 for the offence in relation to s. 184(1); J.M.R. to a fine of $50,000 in relation to the s. 190(4) offence and $25,000 for the s. 184(1) offence; and Toromont to a global penalty of $210,000, allocating $170,000 to the s. 190(4) offence, $10,000 to the s. 184(1) offence, and $30,000 to the s. 187 offence. E. APPEAL DECISION [34] The respondents appealed their convictions and sentences on a number of grounds. Among other things, they argued that the trial justice erred in her finding that the Crown had proved beyond a reasonable doubt that the electrical parts were “exposed”, as required to prove the actus reus of the offences in relation to ss. 184(1) and 190(4). The appeal judge accepted their arguments on this point. She concluded that the trial justice’s interpretation of the word “exposed” in the context of a dangerous high-voltage electrical room as meaning “accessible to an unauthorized person” was wrong. Instead, the appeal judge accepted the respondents’ argument that, in accordance with the ordinary plain meaning of the word, “exposed” means “not concealed or covered”. [35] Applying this definition of “exposed”, and based on the evidence, the appeal judge concluded that the equipment had not been “exposed” at the relevant time. Further, even accepting the trial justice’s definition of “exposed”, the appeal judge reasoned that the equipment was not exposed because it was not easily accessible to unauthorized persons. The appeal judge rejected the argument that the energized parts (the input stabs at the rear of the cabinet) were in fact exposed at the time of the incident, as Audet “had taken active steps to defeat all precautions in place and expose the area himself, despite not being scheduled to work there, not conducting a voltage test, not wearing his protective equipment and using a conductive tool”: at p. 11. [36] The appeal judge concluded that the preconditions for ss. 184(1) and 190(4) were not met, and as such the Crown had not proved the actus reus of the offences beyond a reasonable doubt. In light of this conclusion, she set aside the convictions and entered acquittals for all of the respondents in relation to ss. 184(1) and 190(4). She noted that it was unnecessary to consider the other grounds of appeal argued by the respondents, including with respect to due diligence and their sentence appeals. [37] The appeal judge, apparently accepting an argument raised by Bondfield, [4] set aside Toromont’s conviction in relation to s. 187 on the basis that the trial justice erred in not considering one of the branches of due diligence articulated in R. v. Sault Ste. Marie , [1978] 2 S.C.R. 1299, in particular, whether Toromont reasonably believed in a mistaken set of facts, which, if true, would render the act or omission innocent. She ordered a new trial on the s. 187 charge. It was therefore unnecessary to consider the other grounds of appeal raised by Toromont, including its sentence appeal. F. ISSUES ON APPEAL TO THIS COURT [38] The Crown moved for leave to appeal to this court pursuant to s. 131 of the Provincial Offences Act , R.S.O. 1990, c. P.33. In granting leave, Juriansz J.A. framed the first issue on appeal as follows: “Did the appeal court err by holding that the Crown failed to prove the actus reus of the offences related to ss. 184(1) and 190(4) of O. Reg. 213/91?” The interpretation of these provisions, including their use of the word “exposed”, is central to this issue. [39] Juriansz J.A. found that a number of the grounds of appeal that the appeal judge determined were unnecessary to consider are closely related to this central issue, namely: (a) whether proof of the presence of an unauthorized person is an essential element of the actus reus in s. 184(1); (b) whether the phrase “if work is to be done” in s. 190(1) creates a precondition before there is a requirement to disconnect, lock out of service, and tag the power supply to the electrical equipment, installation or conductor; and (c) the impact of worker error, if any, in determining whether the actus reus of the offence related to s. 190(4) has been proven. He directed that the respondents might advance these related arguments on the appeal to this court. [40] The second issue on appeal, as identified by Juriansz J.A., was whether the appeal judge erred in holding that the trial justice failed to analyze whether Toromont reasonably believed in a mistaken set of facts which, if true, would render its contravention of s. 187 innocent. [41] At the hearing of the appeal before this court, Toromont conceded the second issue. Toromont accepts the Crown’s position that the appeal judge erred in law in overturning its conviction under s. 187 of O. Reg. 213/91 on the basis that the trial justice had not addressed this aspect of the due diligence defence. I agree. When her reasons are read as a whole, it is clear that the trial justice, as she stated she had done, addressed and dismissed both parts of Toromont’s due diligence defence. I would accordingly allow the Crown’s appeal on the second ground. [42] Only the first issue remains to be determined on its merits in this appeal: whether the appeal judge erred by holding that the Crown failed to prove the actus reus of the offences related to ss. 184(1) and 190(4) of O. Reg. 213/91, because of the meaning she attributed to the word “exposed”. In relation to s. 184(1), the respondents also renew their argument, advanced at first instance, that proof of the presence of an unauthorized person is an essential element of the actus reus in s. 184(1). [43] The parties agree that, if the Crown is successful in its appeal, the remaining issues that the appeal judge did not address – in respect of the respondents’ due diligence defences and sentence appeals – should be remitted to another appeal judge of the Ontario Court of Justice for determination. G. POSITIONS OF THE PARTIES [44] The central issue on this appeal is the proper interpretation of ss. 190 and 184 of O. Reg. 213/91. This is a question of law, which is subject to review on a correctness standard. Findings of fact are reversible only where a palpable and overriding error has been established: Housen v. Nikolaisen , 2002 SCC 3, [2002] 2 S.C.R. 235, at paras. 8, 10. [45] Dealing first with s. 190(4), the Crown submits that the trial justice’s finding that Audet was assigned to work near exposed energized equipment relied on a purposive interpretation to the word “exposed” as meaning “easily accessible” in the specific context of a dangerous high voltage electrical room, and is correct. The Crown contends that the appeal judge’s interpretation of “exposed” as “not concealed or covered” would render the provision virtually meaningless, as electrical work almost always involves some effort by a worker to expose potentially energized parts of electrical equipment, an installation or a conductor, which are usually covered or concealed during regular use. The Crown submits that the appeal judge unduly restricted the application of s. 190 to situations where work is to be performed on energized electrical equipment that is already exposed, independent of a worker’s actions. [46] The Crown relies on the purpose of the OHSA, which is designed to protect workers from injury resulting from both advertent and inadvertent acts in the workplace, and submits that the intent of s. 190(4) is to require that the power supply to exposed energized equipment be disconnected, locked out of service, and tagged before the work begins, regardless of how the energized equipment may be or become exposed. [47] In the alternative, the Crown submits that, if “exposed” means “not concealed or covered” (the meaning given by the appeal judge), there is no question that Audet was working on exposed, energized equipment at the time he was injured. [48] The Crown submits that, once it is accepted that the parts Audet was working on or near in the electrical room were “exposed”, and the power source had not been disconnected, the actus reus of the s. 190(4) offence was made out. [49] As for the s. 184(1) offences, the Crown acknowledged in oral argument that the conclusion that the actus reus was made out depends on the acceptance by this court of the trial justice’s definition of “exposed” in this section as “easily accessible”. The Crown also asserts that the trial justice did not err in concluding that s. 184(1) does not require evidence of the presence of an unauthorized person in the electrical room, and that there was no error in the trial justice’s finding that the door to the electrical room was propped open, such that the actus reus of the s. 184(1) offence was made out. [50] The respondents seek to uphold the appeal judge’s definition of “exposed” as “not concealed or covered”. They assert that this definition is consistent with the purposes of the OHSA, which include the prohibition of access to dangerous electrical equipment. They argue that the trial justice’s interpretation of the term “exposed” at one point in her reasons as “not easily accessible to unauthorized persons ” (a narrower definition than the one the Crown seeks to uphold) cannot be correct as it is often difficult to determine who is an “unauthorized person” on a construction project. [51] In the alternative, the respondents submit that the court may have regard to the technical definition of “exposed” in relation to live parts in the Ontario Electrical Safety Code , 27th ed. (Toronto: Electrical Safety Authority and CSA Group, 2018), as “live parts that can be inadvertently touched or approached nearer than a safe distance by a person”. [5] On this definition, the energized parts were not “exposed” because they could not be inadvertently touched when they were located in an electrical room, at the back of enclosed cabinets with warning labels, and accessible only through the deliberate act of undoing two thumb screws, removing the cabinet door, and reaching back into the cabinet. [52] With respect to the requirement in s. 190(1) that “ work is to be done on or near energized exposed electrical equipment”, the respondents renew the argument made to the trial justice that it is a precondition for the application of s. 190(4) that the worker must have intended to work on energized, exposed electrical parts. Section 190 applies only to work that was assigned or planned to be performed on energized exposed parts. The work that was to be done by Audet was on de-energized equipment, and, as the appeal judge observed, he had taken active steps to defeat all precautions in place, including exposing the area himself. [53] Toromont further submits that accepting the Crown’s proposed interpretation of the term “exposed” as “easily accessible” for the purposes of ss. 184(1) and 190(4) would lead to an absurd result for the construction industry. Toromont argues that requiring a project’s entire electrical power system to be disconnected each time the electrical room is accessed by authorized personnel, which occurs multiple times per day, is “plainly absurd” and cannot reflect the intent of the legislators. [54] As for s. 184(1), while the appeal judge allowed the appeal of the convictions in respect of this section based on her definition of “exposed”, the respondents submit that the trial justice also erred in finding that the Crown had established the actus reus of the charge under s. 184(1) when she held that the proof of the presence of an unauthorized person in the room containing exposed energized electrical parts was not an essential element of the actus reus . Since there was no evidence that an unauthorized person was in the electrical room when the offence was alleged to have been committed, this alone ought to have led to acquittals for all of the respondents under s. 184(1). H. DISCUSSION [55] The central issue is whether the Crown established the actus reus of the offences in ss. 190(4) and 184(1) of the regulation, which depends on how each section is interpreted, and in particular the meaning of the word “exposed” in relation to energized electrical equipment as used in each section. I will begin with a brief summary of the principles of interpretation. Then I will turn to interpreting the two regulatory provisions, and explain why the actus reus was made out for the offences under s. 190(4), but not made out for the offences under s. 184(1). (1) The Principles of Interpretation [56] The proper approach to the interpretation of legislation is well-known and summarized in Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27, at para. 21: “the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament”. This approach applies to any question of statutory or regulatory interpretation, including in respect of the OHSA and its regulations: see, e.g., R. v. Dofasco Inc. , 2007 ONCA 769, 87 O.R. (3d) 161, at para. 12, leave to appeal refused, [2008] S.C.C.A. No. 24; Blue Mountain Resorts Ltd. v. Ontario (Labour) , 2013 ONCA 75, 114 O.R. (3d) 321, at para. 45. However, these interpretive factors “need not be canvassed separately in every case, and in any event are closely related and interdependent”: Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 31. [57] Although all of the interpretive principles must be kept in mind when approaching the interpretive exercise, the starting point for analyzing questions of statutory interpretation is to examine the words of the provision in their grammatical and ordinary sense: R. v. Conception , 2014 SCC 60, [2014] 3 S.C.R. 82, at para. 14. Sources for the meaning of particular terms may include both dictionary and judicially constructed definitions: see R. v. C.D.; R. v. C.D.K. , 2005 SCC 78, [2005] 3 S.C.R. 668, at para. 28. [58] The purpose of the legislation is also central to the interpretive exercise. The OHSA is public welfare legislation “intended to guarantee a minimum level of protection for the health and safety of workers”: Dofasco , at para. 16. As such, provisions of the OHSA and its regulations must be interpreted generously and “[n]arrow or technical interpretations that would interfere with or frustrate the attainment of the legislature’s public welfare objectives are to be avoided”: Ontario (Ministry of Labour) v. Hamilton (City) (2002), 58 O.R. (3d) 37 (C.A.), at para. 16, leave to appeal refused, [2002] S.C.C.A. No. 146; see also Ontario (Labour) v. Quinton Steel (Wellington) Limited , 2017 ONCA 1006, at para. 19. [59] A generous interpretation, however, should not be confused with a limitless one: Blue Mountain Resorts Ltd. , at para. 26. While the OHSA aims to protect workers from both deliberate and inadvertent conduct, including accidents that result when workers make mistakes or are careless or reckless, it is important to remember that the OHSA seeks to achieve a reasonable level of worker protection, not an entirely risk-free work environment: Dofasco , at paras. 24-26; Ontario (Ministry of Labour) v. Sheehan’s Truck Centre Inc. , 2011 ONCA 645, 107 O.R. (3d) 763, at para. 30. (2) Section 190(4) [60] Section 190 sets out a number of measures that must be taken to ensure worker safety. These apply, pursuant to s. 190(1), “if work is to be done on or near energized exposed parts of electrical equipment or of an electrical installation or conductor”. One of the measures is prescribed under s. 190(4): “the power supply to the electrical equipment … shall be disconnected, locked out of service and tagged [in the prescribed manner] before the work begins, and kept disconnected, locked out of service and tagged while the work continues”. [61] I begin by referring to the submission, made by the Crown in oral argument on this appeal, that the meaning of this section is that no work is to be done on live electrical equipment. I disagree. There is no general prohibition against such work. As Toromont points out, provisions such as s. 182 restrict work connecting, maintaining or modifying electrical equipment or installations to persons qualified as electricians or otherwise permitted to do so. In addition, s. 191 of the regulation sets out the precautionary measures to be taken when “it is not reasonably possible to disconnect the equipment from the power supply before working on or near energized exposed parts”, anticipating that there will be occasions where work is performed on live electrical parts. As such, it is not sufficient that Audet was working on live electrical parts at the time of the accident. Meaning must be given to the wording of the section, which engages the competing definitions of the word “exposed” in the context of s. 190. [62] There is no definition in the regulation, or for that matter in the OHSA, for the term “exposed”, whether in relation to energized electrical parts or at all. The parties refer to a range of dictionary definitions, including the definition accepted by the appeal judge (“not concealed or covered”) and the dictionary definition accepted by the court in R. v. Proboard Ltd. , 1990 CarswellOnt 4324 (Ct. J. (Prov. Div.)), in determining whether a machine had an exposed moving part pursuant to another OHSA regulation (“laid open; rendered accessible or liable to action”). [6] They also point to the technical definitions of “exposed” in the Electrical Safety Code . They advance arguments about the purpose of the regulation and the OHSA, and they argue for and against broad and narrow meanings to be given to the term. Essentially, the Crown’s position is that an exposed electrical part is any part that is easily accessible, irrespective of how it is exposed, while the respondents assert that electrical parts must already have been exposed, in the sense of uncovered or capable of being inadvertently touched, before the section can apply. [63] It is sometimes helpful to consider dictionary definitions of a term, but in this case, such definitions shed little light on the meaning of the term “exposed” in context. I agree, however, that because “exposed” is used here in the technical context of electrical hazards and safety measures, it is helpful to consider the technical definitions of the term in the Electrical Safety Code . The Electrical Safety Code is a technical document that describes safety standards for the installation and maintenance of electrical equipment. It offers two definitions that depend on whether “exposed” is used in relation to “wiring methods” or “live parts”. “Exposed” in relation to wiring methods means “not concealed”; whereas “exposed” live parts (which is the same as “energized” parts) are “live parts that can be inadvertently touched or approached nearer than a safe distance by a person, and the term is applied to parts not suitably guarded, isolated, or insulated”. [64] As the Electrical Safety Code definitions illustrate, the meaning of the term “exposed” in relation to electrical parts depends on the context in which it is used. One cannot lose sight of the fact that the issue in this case is not the interpretation of a single word in isolation, but the interpretation of two regulatory provisions, both of which are contained within a regulation that addresses Electrical Hazards, under a statute whose purpose is to protect worker health and safety. [65] Accordingly, the point of departure is to examine the full text of s. 190, in order to understand the purpose of the provision and the context in which the obligation under s. 190(4) arises. In my view, it is an error to interpret the term “exposed” in isolation, without looking at the context in which the term is used. [66] Section 190(1) states that the section applies “if work is to be done on or near energized exposed parts of electrical equipment”. It goes on in the following subsections to prescribe various measures for worker safety. These include the obligation of an employer to establish and implement measures and procedures for complying with the section “to ensure that workers are adequately protected from electrical shock and burn”, and to make a copy available to every worker on the project: s. 190(2); the requirement that workers follow the written measures and procedures: s. 190(3); the requirement, subject to certain exceptions, that before the work begins and while it continues, the power supply to the equipment be disconnected, locked out of service and tagged: s. 190(4); and the requirement, before the work begins and while it continues, to adequately discharge or contain hazardous stored electrical energy: s. 190(5). [67] I pause here to address a point made in argument in relation to Toromont’s submission that for work “to be done” on or near energized electrical equipment, a worker must have been directed or authorized to work on energized equipment. I agree with the trial justice that, if the measures under s. 190 applied only to work intentionally done on energized electrical equipment, the section would be deprived of its meaning. Rather, I agree with her that “if work is to be done” imports a temporal requirement, in the sense that it prescribes various preventive measures that must be in place before work begins on energized electrical equipment, and while it continues. Among other things, s. 190(4) requires that, before the work is performed, the power supply will have been disconnected, locked out and tagged, and that it will remain that way while the work continues. [68] In other words, the section contemplates that, where work is planned on or near exposed parts that are ordinarily energized, while the work is underway the electrical parts will not be “energized”. [69] When considered in the context of s. 190 and what it requires, as well as its purpose, it is not difficult to attribute meaning to the term “exposed”. The intention is to protect workers who are working on or near exposed electrical parts from the risk of shock or burn. The only reasonable interpretation of this section, which is faithful to its wording, is that the prescribed measures must be taken whether the electrical parts are already exposed before the work begins, or whether the parts will be exposed in the ordinary course of the work, that is, as the work is “to be done”. In addition, the “on or near” wording in s. 190(1) makes it clear that the prescribed preventive measures are to be taken to prevent a worker’s inadvertent exposure to electrical hazards, including by coming too close to live parts that are “near” where work is to be done, even if the work was not to be done “on” such parts. [70] When looked at this way, it is clear that the appeal judge’s definition of the term “exposed” in s. 190(1) is incorrect. In using a dictionary definition of “exposed” as “not concealed or covered”, she ignored the context of s. 190. Her interpretation would mean that the measures prescribed by s. 190 would only be required in respect of electrical parts that were already uncovered when the work began. Indeed, adopting this definition, s. 190 would not have applied to the work Audet was assigned to perform, notwithstanding that in order to carry out the work, he had to reach inside the cabinets and clean the area of the input stabs, which were ordinarily energized. [71] There can be no question that work was to be done by Audet on (and near) energized exposed electrical parts, such that the power supply to the cabinets he was assigned to access, as well as those nearby, had to be disconnected before the work began and while the work continued. Instead, while all of the circuit breaker cabinets were identically racked out (i.e., disconnected from the input stabs at the back of the cabinet) and tagged, the power supply to the input stabs was disconnected only for the circuit breaker cabinets on which Audet was assigned to work, and not for those nearby. [72] In my view, in order to give this section its intended meaning, which is consistent with its goal of protecting workers from electrical hazards, where a worker will be working on or near live electrical parts, and in the course of this work live parts will be “exposed” to the worker, whether because the parts are already exposed or because the work itself entails exposing electrical parts, s. 190(4) requires that the electrical power supply be disconnected before the work begins and while it continues. Where it is not reasonably possible to disconnect the equipment from the power supply, s. 191 of the regulation prescribes different and additional precautionary measures that must be in place, including that the worker possess the qualifications prescribed by s. 182(1). [73] The appeal justice was wrong to treat the removal of the cover on the front of the circuit breaker cabinets as Audet having taken active steps to “defeat all precautions in place and expose the area himself”. In order to clean inside the circuit breaker cabinets, Audet had to remove the cabinet covers. The removal of a cover by loosening thumb screws was not, as the respondents suggest, akin to removing a guard from a piece of equipment. The cover did not act as protection against accidental exposure during the course of the worker’s work. It simply enclosed the live electrical parts within the circuit breaker cabinet. The parts were exposed to workers who had been assigned to work inside the circuit breaker cabinets, because their work entailed the removal of the cabinet covers. [74] It follows that it is an error to focus only on the circuit breaker cabinet that Audet unintentionally entered. Rather, what must be considered is the work that was “to be done” by Audet that day. He was to work on electrical parts that were ordinarily energized and that would be exposed during the course of his work. While doing this work, he would be vulnerable to the hazards of electrical shock and burn that the preventive measures in s. 190 are meant to address. [75] A number of the measures prescribed by s. 190 were in place to prevent electrical shock and burns to workers before the work began. The circuit breaker cabinets had been “racked out” (that is, disconnected from the power source), locked in place, and tagged. The work required Audet to reach into the cabinet, which housed parts that were ordinarily energized. As the trial justice observed, the tagging and locking out did not serve as a warning to Audet, because all of the cabinets were tagged and locked out in the same way, whether or not the power supply to the cabinets had been shut down. While the measures that were taken protected Audet from electrical shock or burn if he only worked on the de-energized cabinets, he was not protected from inadvertent injury from electrical parts that remained energized near where he was to work. [76] For these reasons, I am satisfied that the actus reus of s. 190(4) was made out on the facts of this case. Before Audet began his work, it was clear that work was to be done by him both on and near exposed energized parts of electrical equipment, such that the precautionary measures set out in s. 190 were required. The circuit breaker cabinets were racked out, locked and tagged, but the power supply to only some of the cabinets was disconnected. While working “on” the de‑energized cabinets, Audet was working “near” energized cabinets. He inadvertently entered the wrong cabinet, which remained connected to the power supply, not by removing a lock or guard, but by simply removing the thumb screws. (3) Section 184(1) [77] Section 184(1) provides that “no person, other than a person authorized to do so by the supervisor in charge of the project, shall enter or be permitted to enter a room or other enclosure containing exposed energized electrical parts”. Section 184(2) requires the entrance to such a room or enclosure to be marked by conspicuous warning signs stating that entry by unauthorized persons is prohibited. [78] The trial justice relied on her interpretation of “exposed” in relation to s. 190 (“easily accessible to unauthorized persons”) to conclude that the high voltage electrical room where the circuit breaker cabinets were located contained exposed energized electrical parts. She found that, at times on or about the date of the accident, the door to the electrical room had been propped open, leaving no controls on entry. As such, she concluded that the actus reus of the s. 184(1) offences was made out. Invoking a different interpretation of the term (“not concealed or covered”), the appeal judge concluded that the parts were not “exposed” because they were concealed behind cabinet doors, and the parts Audet accessed accidentally were still not “exposed” because he had taken active steps to defeat all precautions in place and expose the area himself. Because the room did not contain any “exposed” energized electrical parts, the actus reus of the offences was not made out. [79] There are two issues here. First, did the appeal judge err in concluding that the actus reus of the offence had not been made out because the electrical room did not contain “exposed” energized electrical parts? Second, does the Crown have to prove that there was an unauthorized person in the room in order to make out the offence, or is it sufficient, as the trial justice found, that access was permitted because the door was propped open? [80] As discussed earlier in these reasons, the OHSA and its regulations must be interpreted generously so as not to interfere with the attainment of the legislature’s public welfare objectives: Hamilton (City) , at para. 16. Whereas s. 190 has, as its focus, the protection of a worker whose work is to be done on or near exposed energized electrical parts, the focus of s. 184 is on unauthorized workers who may be in the vicinity. The purpose of this provision is to protect workers, but particularly unauthorized workers, from the hazards of exposed energized electrical parts, both by restricting their access to the room or enclosure in which the exposed electrical parts are contained and by requiring that warning signs be posted at the entrance to such a room or enclosure. [81] It must be remembered that this provision is contained in a regulation that applies to construction projects. In this case, multiple trades, whose work was entirely unrelated to exposed energized parts, were required to perform tasks in the vicinity of the electrical room. The trial justice noted that the vice-president of J.M.R. testified that this was “progressive construction” and that “it was not an ideal situation to have an up and running electrical room when other tasks needed to be completed in that room”: at para. 51. Indeed, the trial justice noted that while Audet was cleaning the switchgear cabinet, he was frequently interrupted by electricians or painters who required access to the same area to perform their work: at para. 62. [82] The appeal judge erred in her conclusion that the high voltage electrical room did not contain exposed energized parts, such that the actus reus of s. 184(1) could not be established. As I explained in the context of s. 190, Audet worked on or near exposed energized parts when he performed his work on the day of the accident. Without restricting the application of s. 184, it is clear that at the very least, on these facts, the high voltage electrical room contained exposed energized parts when Audet worked on or near such parts, and that s. 184 required that only authorized persons enter or be permitted to enter the electrical room at that time. [83] On the appeal, counsel for Toromont explained its position that there were no exposed energized parts in the electrical room at the time of the accident, on the basis of its proposed interpretation of “exposed”, but acknowledged that there may be circumstances where there are exposed energized parts in the room. On this appeal, it is not necessary to decide the full range of circumstances in which this electrical room, or any “room or other enclosure”, might contain exposed energized parts. In this case, it is sufficient that Audet worked on or near exposed energized parts on the day of the accident and, at least at the time that he was performing this work, s. 184 required that access to the electrical room be controlled. [84] The trial justice rejected the respondents’ argument that the actus reus of s. 184(1) requires evidence of unauthorized persons having been in the room at the time of the alleged offence, which, according to the charges listed in the Information, was “on or about the 28th day of May, 2013”. I agree. The plain language of s. 184(1) states that unauthorized persons may not “enter or be permitted to enter”. The interpretation urged by the respondents deprives this language of its meaning. The legislature, having used the disjunctive “or”, must have intended for the phrase “be permitted to enter” to have a different meaning than “enter”. I find that to establish the actus reus , it will suffice that the entrance to the room or enclosure is not controlled to restrict access by unauthorized persons, thus “permitting” unauthorized persons to enter, irrespective of whether an unauthorized person in fact enters the room. In other words, evidence of actual entry by unauthorized persons into the room or enclosure that contains exposed energized parts is a sufficient, but not a necessary, element of the actus reus of the offence. [85] The essential elements of the actus reus of the s. 184(1) offence are therefore: (1) a person, other than a person authorized to do so by the supervisor in charge of the project, enters or is permitted to enter a room or other enclosure; and (2) the room or other enclosure contains exposed energized electrical parts. The issue respecting the actus reus in this case is whether the Crown established that both of these essential elements were present at the time of the alleged offence. In other words, the factual issue is whether any unauthorized persons were permitted to enter the electrical room at the time Audet was doing his work on exposed energized electrical parts. [7] Following the trial justice’s reasoning, was the door to the electrical room propped open at that time? [86] Although the trial justice found as fact that the door to the electrical room had been left open “at times on or about” the date of the accident, the Crown did not lead any evidence to establish that the twin elements of the actus reus converged: first, that the room contained exposed energized electrical parts and, second, that while it contained such parts, the respondents failed to prohibit unauthorized persons from the room. Although the door to the electrical room had been propped open at times, leaving no controls on entry into the room, the Crown failed to establish that this ever occurred while the room contained exposed energized parts – that is, while Audet was performing his cleaning work on or near exposed energized parts. Further, the Crown led no evidence that there were any exposed energized parts in the room at any time other than when Audet performed his work that day. Therefore, on this record, the temporal link between the two essential elements has not been established, and the actus reus has not been made out. [87] In oral argument, the Crown acknowledged that for the actus reus of the offences under s. 184(1) to have been proven on the evidence before the court, it would be necessary to accept a broad definition of “exposed” as “easily accessible”. In other words, the Crown’s position is that the electrical room contained exposed energized electrical parts because the live parts could be easily accessed by removing the front covers from the circuit breaker cabinets. Therefore, the room always contained “exposed” energized parts and any lapse in the prohibition of unauthorized persons from the room would have contravened s. 184(1). The Crown noted in oral argument that this was the basis on which it argued the s. 184(1) offences at first instance, and acknowledged that it had not asserted that s. 184 was contravened only at the moment that the circuit breaker cabinets were accessed by Audet. According to the Crown, its “main concern” was for the s. 190 offences, and the s. 184 offences were “peripheral charges” that were “not causally connected” to what happened to Audet that day. [88] I note that, arguably, the respondents acted as though s. 184(1) applied to the high voltage electrical room at all times. According to the trial justice’s reasons, the electrical room was locked, and efforts were made to control unauthorized access. The site superintendent for Bondfield gave evidence that access was controlled by J.M.R. The trial justice recounted that “[h]e testified that the electrical room was high voltage and therefore dangerous and access needed to be restricted”: at para. 50. J.M.R.’s representative gave evidence that he came by the electrical room a few times a day to check that the door was locked, and that no one would be in the electrical room unless authorized: at para. 51. A J.M.R. electrician confirmed that access to the room was via a key, and that if a J.M.R. foreman saw the door ajar, they would lock it: at para. 54. This was a high-voltage electrical room that was effectively treated as being “out of bounds” for unauthorized persons. [89] Nevertheless, the onus is on the Crown to prove beyond a reasonable doubt the actus reus of the offence under s. 184(1), including that, on or about May 28, 2013, while there were “exposed” electrical parts in the electrical room, the respondents failed to ensure that measures and procedures were in place to limit access to that room to persons authorized by the supervisor in charge of the project. The Crown failed to establish that while Audet performed his work on the switchgear that day, access to the room was not controlled. It also failed to establish that the room contained exposed electrical parts at any time other than when Audet performed his work. Therefore, I am not satisfied that the actus reus was made out by the Crown, and I would dismiss the Crown’s appeal in relation to the s. 184(1) offences. I. DISPOSITION [90] For these reasons, I would allow the appeal in part. I would set aside the acquittals for the offences in relation to s. 190(4) of O. Reg. 213/91. I would uphold the acquittals for the offences in relation to s. 184(1) of the regulation. I would remit the issues not determined by the appeal judge in relation to the ss. 190(4) and 187 offences, namely, the respondents’ due diligence defences and sentence appeals, to another appeal judge of the Ontario Court of Justice for determination. Released: April 14, 2022 “K.F.” “K. van Rensburg J.A.” “I agree. K. Feldman J.A.” “I agree. Coroza J.A.” [1] A stab is a thick, conductive, metal bar located at the back of the switchgear cabinet. Input stabs transmit energy into the breaker, and output stabs transmit energy from the breaker into the building. [2] Bondfield did not participate in the appeal to this court. The court was advised by Bondfield’s in-house counsel that “as a result of the ongoing Companies’ Creditors Arrangement Act proceedings and the terms of the Amended and Restated Initial Order dated April 3, 2019, Bondfield [would] not be participating in the appeal.” [3] When “racked in”, conductive spring-loaded fingers on the breakers connect to stabs at the rear of the cabinet, allowing for the transmission of energy, while “racking out” ensures that the fingers are separated from the stabs at the rear of the cabinet, preventing the transmission of energy. [4] The appeal judge suggested this was an argument made by Toromont. However, Toromont’s counsel on appeal to this court advised that the argument had in fact been raised by Bondfield’s counsel. [5] The Ontario Electrical Safety Code is the Canadian Electrical Code, Part I (CSA C22.1-18) , as amended by the Ontario Amendments to the Canadian Electrical Code Part I, C22.1-18 : see Electricity Safety Code , O. Reg. 164/99, s. 1. [6] In Proboard , the court determined whether a machine had an “exposed moving part” pursuant to s. 28 of Industrial Establishments Regulation , R.R.O. 1980, Reg. 692 (now s. 24 of Industrial Establishments , R.R.O. 1990, Reg. 851, enacted under the OHSA). [7] Although Audet said there were various people in the electrical room when he was working on the switchgear cabinets, there was no evidence that any of these people were “not authorized by the supervisor in charge of the project”.

KURIAN, J. Leave granted. On 03.03.2017, this Court passed the following order- Aggrieved by the inadequacy of companypensation awarded by the Motor Accident Claims Tribunal for short the Tribunal and the High Court, the petitioners have filed this Special Leave Petition. Taking numbere of the fact that the deceased was aged 52 years, the Tribunal in the award dated 22.10.2008, declined to grant any addition for future prospects in the salary and adopted the multiplier as 6.31. An amount of Rs.15,000/- was granted towards loss of companysortium to the wife and Rs.2,500/- towards funeral expenses. The companypensation Signature Not Verified Digitally signed by amount was to carry interest at the rate of NARENDRA PRASAD Date 2017.12.07 173745 IST Reason 7.5 per cent per annum. The claimants petitioners, number satisfied with the companypensation, approached the High Court. As per the impugned Judgment dated 24.03.2015, the appeal was disposed of. The learned Judge took numbere of the decision of this Court in Sarla Verma Smt. and others Delhi Transport Corporation and another1 in adopting the multiplier and observed that going by the said decision, the multiplier to be applied is 11. However, taking numbere of the fact that the deceased would have retired at the age of 60 years, fixed the multiplier as 8. In the matter of companysortium, it was observed that deceased died number in the prime of his youth but at his middle age, and hence the widow was granted companysortium of Rs.25,000/-. No addition was made towards future prospects. It is shocking and disturbing that the learned Judge declined to follow the principles laid down by this Court in unmistakeable terms in Sarla Verma supra as far as multiplier is companycerned. We do number want to say anything more. Therefore, in this case, the multiplier is taken as 11. As far as companysortium is companycerned, this Court in Rajesh and others v. Rajbir Singh and others2 has held that companysortium is the right of the spouse to the companypany, 2009 6 SCC 121 2013 9 SCC 54 care, help, companyfort, guidance, society, solace, affection and sexual relations with his or her mate. It was also held in the above case that the children are also entitled for award of companypensation for loss of love, care and guidance. This emotional element has numberhing to do with the expected life span. Having observed that it was time to revisit companypensation granted under the companyventional heads, it was held that the widow was entitled to loss of companysortium to the tune of Rs.1,00,000/-. Towards loss of love, care and guidance for minor children, an amount of Rs.1,00,000/- was also awarded. It was also held in Rajesh supra that in case, the deceased is above the age of 50 years, the enhancement of 15 per cent was to be given towards loss of future prospects. Close to Rajesh supra , there was another decision of this Court, again of the strength of three Judges, in Reshma Kumari and others v. Madan Mohan and another3, rendered on 02.04.2013. While Rajesh supra went a step ahead of Sarla Verma supra in awarding 15 per cent enhancement towards loss of future prospects, the decision in Reshma Kumari supra reaffirmed the principles laid down in Sarla Verma supra which declined any addition towards future prospects after the 2013 9 SCC 65 age of 50 years. It may be numbered that there was numberreference of Reshma Kumari supra in Rajesh supra , apparently, since the said judgment had number been reported by the time Rajesh supra was rendered. On 02.07.2014, a two-Judge Bench of this Court in National Insurance Company Limited v. Pushpa and others4, taking numbere of the companyflicting positions as far as addition of future prospects after the age of 50 years, in Reshma Kumari supra and Rajesh supra , has made a Reference of this aspect to a larger Bench. We are informed that the Reference is still pending. Under the above circumstances, we are inclined to pass an interim Order on companypensation as far as the undisputed areas are companycerned and then post this petition after the Reference is answered by the larger Bench. Therefore, by way of an interim measure, it is ordered that the petitioners shall be entitled to enhancement of companypensation by fixing the multiplier as The widow shall be entitled for loss of companysortium to the tune of Rs.1,00,000/- and the children together are entitled to companypensation of Rs.1,00,000/- towards loss of love, care, guidance and protection. The companypensation shall carry interest at the L.P. Civil No. 16735 of 2014 rate of 9 per cent from the date of filing of the claim petition. The Insurance Company shall re-work the companypensation as above and deposit the amount with the Tribunal within three weeks. On such deposit, it will be open to the claimants to withdraw the same.

SPECIAL LEAVE PETITION CIVIL NO. 11940 OF 2003 WITH SPECIAL LEAVE PETITION CIVIL NO.11771 OF 2003 K. BALASUBRAMANYAN, J. These two petitions arise from the claim for an interim injunction by the petitioner before us in a suit filed by him. The suit was for a permanent injunction restraining the respondents, the defendants in the suit, from interfering with the possession of the suit land allegedly held by the petitioner including the school buildings companystructed thereon and number to demolish or take any steps for removal of the companystructions. An interim injunction along the same lines to enure during the suit was sought. That application was opposed. Respondent No.3, in turn sought an injunction restraining the petitioner plaintiff from putting up any companystruction outside an area of 16,000 Sq. ft. The trial companyrt granted an interim injunction in favour of the petitioner but companyfined it to an area of 16,000 Sq. ft. and the companystruction thereon and also restrained him from putting up any companystruction outside it but included in the plaint schedule. The petitioner appealed against those orders and the Additional District Judge allowed the appeals and modifying the order of injunction granted by the trial companyrt, made the injunction operative in respect of the entire plaint schedule property and the structures thereon. The respondents originally filed a revision invoking Section 115 of the Code of Civil Procedure for short the Code before the High Court challenging the order of the first appellate companyrt. In view of a decision rendered by that High Court that numberrevision under Section 115 of the Code companyld be entertained against an order of injunction since the order was purely interlocutory in nature, the respondents herein sought a companyversion of their revision into a petition under Article 227 of the Constitution of India. This prayer was allowed by the High Court which decided to treat the proceedings as one under Article 227 of the Constitution of India. It is challenging that order that the petitioner before us has filed Special Leave Petition C No.11771 of 2003. Proceeding on the merits thereafter, the High Court modified the order of the first appellate companyrt and restored the order of the trial companyrt and thereby companyfined the interim order of injunction to an area of 16,000 Sq. ft. and the structures thereon. Feeling aggrieved by this modification, the petitioner before us - the plaintiff in the suit, has filed SLP C No.11940 of 2003. Since both matters arise from the same proceedings, they are taken up together for final disposal. SLP C No.11771 of 2003 All that the High Court has done is to treat the petition filed before it under Section 115 of the Code as a proceeding initiated under Article 227 of the Constitution of India. The respondents had filed the revision originally and during the pendency of that revision the High Court appears to have taken a view that an order in an appeal arising from a proceeding under Order 39 Rules 1 and 2 of the Code, companyld number be challenged under Section 115 of the Code since the order was in the nature of an interlocutory order. In such a situation, in our view, the High Court rightly decided to permit the revision petitioners before it, to companyvert the same as a proceeding under Article 227 of the Constitution of India. After all, the companyrt companyld have done it on its own, even without a motion in that behalf by the petitioner. We see absolutely numberground to interfere with the said order on the grounds raised in this special leave petition. Hence, this special leave petition is dismissed. SLP C No.11940 of 2003 Leave granted. In this appeal, the appellant - plaintiff who had filed a suit, inter alia, for a permanent injunction restraining the defendants in the suit from interfering with his possession of the plaint schedule property and the structures thereon allegedly put up by him, challenges the order of the High Court by which that companyrt set aside the order of the first appellate companyrt and restored the limited order of interim injunction granted by the trial companyrt. The trial companyrt, after hearing both sides had companyfined the interim order of injunction to an extent of 16,000 Sq. ft. and the structures thereon and had declined relief to the plaintiff in respect of the rest of the plaint area, and the companystructions allegedly put up by him outside the 16,000 Sq. ft, which alone was the subject matter of an admitted lease. In appeal, the lower appellate companyrt modified the order passed by the trial companyrt and made the injunction operative in respect of the whole of the suit property including the disputed portion and the structures in the entire property including the ones allegedly put up in the disputed portion. The High Court found that numberprima facie case was made out by the plaintiffthe appellant before us, for an injunction in respect of the property outside the 16,000 Sq. ft. and the structures thereon and the appellate companyrt was number justified in modifying the order of the trial companyrt. The High Court set aside the order of the appellate companyrt and restored the order of the trial companyrt. Thus, the High Court companyfined the order of injunction to an area of 16,000 Sq. ft and the structures thereon. This Court by order dated 12.7.2003, stayed the operation of the order of the High Court as also any action for demolition until the matter was heard in this Court. On 14.7.2003, while issuing numberice on the petitions for special leave to appeal, this Court also ordered that until further orders, the order dated 12.7.2003 shall companytinue to remain in operation. Thus, the order passed by this Court on 12.7.2003 companytinues to be in operation, meaning thereby that the proposed demolition of structures outside the area of 16,000 Sq. ft. remains stayed. We find that in the schedule property including the disputed portion, an educational institution is functioning. It is seen that there are a number of litigations between the parties, including a suit for specific performance of an agreement to lease filed by the appellant against Respondent No.3 before us apparently in respect of the area outside the 16,000 Sq. ft. The suits are all pending. Taking numbere of the salient fact and numberother fact that an educational institution is being run in the property in question including the disputed portion and taking numbere of the fact that from 12.7.2003 the order of stay of demolition granted by this Court has been in operation, we feel that it is number necessary or appropriate to go into the merits of the disputes between the parties at this stage. We feel that it would be appropriate to companytinue the order of this Court dated 12.7.2003 and to keep it operative till the disposal of the suit, with a direction to the trial companyrt to try and dispose of the suit as expeditiously as possible, preferably within a period of six months from the production before it of a companyy of this order by either of the parties. We have thought it fit number to go into the merits of the companytroversy vehemently projected before us by companynsel on either side, only in our view, that the status quo should be maintained in view of the fact that an educational institution is said to be functioning in the property. Learned companynsel for Res.No.3 submitted that under the companyer of this order, the appellant is attempting to put up companystructions in the disputed property and it is just and necessary to prevent him from doing so. We think that this prayer deserves to be granted, especially, in the companytext of the fact that we are trying to maintain the status quo until the suit is finally disposed of. We, therefore, restrain the appellant - the plaintiff in the suit, from putting up any further companystruction and from altering or modifying any existing companystruction until the disposal of the suit. In other words, there will number only be an injunction against the defendants for demolishing the companystructions in the entire plaint schedule property including the disputed portion, but there would also be an injunction restraining the appellant from making any further companystruction and from altering or modifying any existing companystruction in the plaint property including the disputed property. We also make it clear that the fact that we are permitting the structures in the disputed portion of the property to companytinue to exist, will number companyfer any right on the plaintiff, if he is number able to establish his case for relief in the suit. There is a further submission on behalf of Respondent No.3 that the appellant has number paid the rent for the premises which was admittedly leased out to him. Counsel for the appellant submits that there is numberarrears, as claimed.

Mr Stephen Morris QC: Introduction By these judicial review proceedings, Mr Mark Wildie ("the Claimant") challenges a decision dated 28 November 2012 ("the Decision") of Wakefield Metropolitan District Council ("the Defendant") granting planning permission in respect of land off Haw Park Lane, Wintersett, Wakefield ("the Site"). The Site is in the Green Belt. By the Decision, the Defendant granted, subject to a number of conditions, planning permission for: "Change of use of land from agricultural field to 20 pitch caravan and camping site, including residential use of land for managers mobile home, construction of a shed, improvements to vehicular access, provision of hard standing, dustbin/recycling area (part retrospective)" .... That permission was granted to Mrs Jackie Avison of Goodwin Farms Limited, the owner of the land at the Site ("the Interested Party"). There were two aspects to her application for planning permission for the change of use of the Site: first, for use as a 20 pitch caravan and camping site and, secondly, for residential use of a manager's mobile home. The Defendant's planning officer recommended approval for the first aspect, but refusal in respect of the second aspect. However, by the Decision, the Defendant approved the application in full. The Claimant challenges the Decision on two grounds: failure to give adequate reasons ("Ground 1") and failure properly to interpret or take account of Green Belt policy under the National Planning Policy Framework ("the NPPF") ("Ground 2"). In February this year, the Defendant indicated that it agreed to the making of a consent order for the quashing of the planning permission, on the basis of Ground 1 alone. The Interested Party however does not agree and disputes both Grounds. Pursuant to an Order of King J in June 2013, this is the rolled up hearing of permission, and if granted, the substantive judicial review. Mr Zack Simons appeared for the Claimant, and Mr Robert C Smith appeared for the Interested Party. The Defendant did not appear. The Legal and Policy Framework Before turning to the factual background, I set out the relevant legal framework, comprising the legislative context, relevant legal principles and matters of planning policy. Planning permission and reasons (1) The duty to give reasons The duty upon the Defendant to provide reasons in this case is set out in Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (2010 SI No 2184) ("the Order"), which provided, at the relevant time, as follows: "(1) When the local planning authority gives notice of a decision or determination on an application for planning permission or for approval of reserved matters - (a) where planning permission is granted, the notice shall- (i) include a summary of their reasons for the grant of permission; (ii) include a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and (iii) where the permission is granted subject to conditions, state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision;..." By contrast, Article 31(1)(b) provided that, where planning permission is refused, then the notice should "state clearly and precisely their full reasons for the refusal". (These statutory provisions have since been amended twice). The content of this statutory duty to provide reasons has been considered specifically in two cases: R (on the application of Ling (Bridlington) Ltd) v East Riding of Yorkshire Council [2006] EWHC 1604 (Admin) and subsequently by the Court of Appeal in R (on the application of Siraj) v Kirkless Metropolitan Council [2010] EWCA Civ 1286 (approving the judgment in Ling.) Following the hearing, the very recent judgment of Haddon-Cave J in R (on the application of Cherkley Campaign Limited) v Mole Valley District Council [2013] EWHC 2582 (Admin) has been drawn to my attention. It too refers to the duty to give summary reasons (in a case where a planning officer's recommendation was not followed). The principles to be derived from these cases can be stated as follows: (1) Only summary reasons are required for the grant of permission; this is in stark contrast to the requirement for full reasons where permission is refused: see Ling §47. (2) Such summary reasons do not present a full account of the local planning authority's decision making process; rather they are a summary of the outcome of that process: Siraj, §14. (3) Summary reasons are not to be equated with fuller reasons required in a Secretary of State's decision letter: Siraj, §14. (4) When considering whether summary reasons are adequate, it is necessary to have regard to the surrounding circumstances of the case in question: Siraj §15. (5) Where members of the local planning authority follow the recommendation of a planning officer to grant permission, then a relatively brief summary of reasons may well be sufficient; on the other hand, where the members grant permission contrary to the advice of a planning officer to refuse, a fuller summary of reasons may well be necessary or appropriate. Siraj §§15 and 16, and Ling §50. (6) In the latter case, the reason why such a fuller summary may be necessary is as stated by Sullivan LJ in Siraj §15 as follows: "a member of the public with an interest in challenging the lawfulness of planning permission will not necessarily be able to ascertain from the officer's report whether, in granting planning permission, the members correctly interpreted the local policies and took all relevant matters into account and disregarded irrelevant matters" (7) Where members grant permission contrary to an officer's recommendation, the reasons should contain a summary explanation of the reasons for the grant of permission: Ling §48. (8) Further, in such a case, the reasons should also contain a summary explanation of the reasons why members disagree with the reasoning in the officer's report which led to that recommendation. In my judgment, this is implicit in §§16 and 17 of Siraj, where Sullivan LJ considered that a relatively brief summary is sufficient, where there is no indication of disagreement with the reasoning in the officer's report. The implication is that where there is disagreement, the fuller summary reasons should include reasons for that disagreement. Further, in the Cherkley Campaign case, supra, Haddon-Cave J accepted (at §45) the proposition that, in such a case, there must be a rational and discernable basis for members to reject the officers' advice. Haddon-Cave J went on (at §185) to criticise the absence, in that case, of any explanation for the disagreement with the planning officer. (9) Article 31 does not require a summary of the reasons for rejecting objections to the grant of permission: Ling, §48. "Objections" here, in my judgment, refer to third party objections made in the course of the planning application process, and not the planning officer's reasons for recommending refusal. (10) A summary of reasons does not require a summary of reasons for reasons: Siraj §24 and Ling §49. (2) Consequences of failure to give reasons As in any case where a ground for judicial review is established, the remedy to be granted consequential upon a finding of inadequate reasons is a matter for the Court's discretion. Where there is a breach of the duty to give summary reasons for the grant of planning permission, three possible remedies arise for consideration: a quashing order in respect of the decision granting planning permission; an order directing the planning authorities to state its reasons; or a declaration that the planning authority has acted in breach of its statutory obligation to give a summary of reasons. As a matter of general principle, the remedy for breach of an administrative law duty to give reasons should normally be the quashing of the decision, rather than an order for the provision of reasons. Fordham: Judicial Review Handbook (6th edn) §62.5 and De Smith's Judicial Review (7th edn) § 7-112. The policy underlying that normal rule is, first, that the rationale for the duty to give reasons is that it acts as incentive for careful and disciplined decision making and, secondly, it avoids the risk of 'after the event' reconstruction of reasons by the relevant decision maker. Further, as a result of the lapse of time between the original decision and the judicial review proceedings, it may be impracticable for such reasons to be given. It is only in limited circumstances that the absence or inadequacy of reasons can be remedied by the provision of further reasons. I have been referred to three cases specifically: R v Westminster City Council ex parte Ermakov [1996] 2 All E R 302 (CA), and two cases dealing specifically with the duty to give reasons for planning permission: R (on the application of Macrae) v Herefordshire District Council [2012] EWCA Civ 457 (CA) and R (on the application of Prideaux) v. Buckinghamshire County Council [2013] EWHC 1054 (Admin). Ermakov In ex parte Ermakov, Hutchinson LJ explained (at 315h to 316d) the rationale for the general rule that where there is a breach of a duty to give reasons, the applicant is prima facie entitled to have the decision quashed as unlawful. First, the function of allowing further evidence of an authority's reasons is to elucidate and confirm the original reasons, and not to allow fundamental alteration or contradiction of those original reasons. Secondly, the applicant for judicial review does not need to show that he has suffered prejudice by dint of the absence of reasons. He is prima facie entitled to have the decision quashed, if the reasons given are not adequate. To allow subsequent evidence of reasons both encourages a sloppy approach to reasons by the decision maker and also might permit the remedying of flawed original reasoning. Thirdly, however, a court might refuse to quash the decision where it is clear that, on reconsideration, that decision would be the same. Macrae In Macrae, planning permission was granted for the construction of a dwelling in open countryside. The council's planning officers had recommended that planning permission should be refused. The council's grant of permission included summary reasons. At first instance the judge held that the claim had not been brought promptly, that the grant of planning permission was not substantively unlawful or irrational, and that the reasons given were inadequate, but that the council's views could be ascertained from the minutes of the meetings. On appeal, the appellant challenged the finding on promptness and the finding that the reasons could be ascertained from the minutes. The appellant did not contend that the summary reasons were adequate, nor, significantly, that the council's decision was substantively unlawful or irrational. The Court of Appeal overturned the judge's decision on promptness, and then went on to consider the reasons issue. At §26 Sullivan LJ emphasised that the underlying statutory purpose of requiring summary reasons "was to avoid the need for claimants to pursue a paper chase and to examine extrinsic evidence in order to ascertain what the reasons for granting planning permission really were". Then, at §27, he cited his own judgment in R (Wall) v Brighton and Hove City Council [2004] EWHC 2582 (Admin) at §57, where he had said: "there would have to be very powerful reasons for not quashing a decision notice which did not include the local planning authority's summary reasons for granting planning permission. To allow extrinsic post hoc evidence as to what the local planning authority's reasons were in such cases would perpetuate the very problems that Parliament intended the substituted article 22(1) to address." He held that the judge was wrong to hold that the reasons could be ascertained from the minutes of the meeting. At §§30 and 31, Sullivan LJ then considered what relief should be ordered consequential upon the finding that the summary reasons were inadequate. He said (§30): "Since the judge's decision the house had been built and it is now occupied by the interested party, his wife and two small children; a third child will soon be added to their family. Since there has been no challenge to the judge's conclusion that the grant of planning permission was not unlawful ... or otherwise irrational ... it is in my view quite inconceivable that if we were now to quash the planning permission the respondent on redetermination would refuse to grant a retrospective planning permission and would think it expedient to commence enforcement notice proceedings to secure removal of the house. In these circumstances I accept Mr Giles' submission that an order quashing the planning permission would be a disproportionate remedy. ..." (emphasis added) Then, at §31, Sullivan LJ decided that an order that the council provide a summary of its reasons would not be appropriate, given the lapse of time. He concluded that the appropriate remedy was a declaration that the summary reasons did not comply with the statutory requirement and that, in the "somewhat unusual circumstances", this was sufficient vindication of the appellant's position. Pill LJ agreed (at §§39-41). It was not appropriate to quash because the prospect of the grant of permission was strong and the prospect of enforcement proceedings virtually non-existent. Further, the council should not be required to give further reasons, because it would not be sensible to try to reassemble the 19 members of the council, some two years later and there was a risk of distorted, or ex post facto, reasoning being given. He emphasised the importance of the statutory duty to give reasons being discharged at the time of the decision, relying on the dual purpose reasoning of Henry LJ in Flannery v Halifax Estate Agencies [2000] 1 WLR 377. Nevertheless on the facts of the case a declaration would vindicate the appellant's rights. Prideaux In Prideaux, there was a challenge to the grant of planning permission by the council for an energy from waste facility at a farm. There were three grounds of challenge: the first two challenges failed. The third ground was failure to provide adequate reasons, which Lindblom J dealt with at §§159 to 168. This was a case where the council had followed the officer's recommendation. The reasons in the notice of decision were brief, stating the conclusion that the need for the facility outweighed the significant adverse impact, and that the development was "considered to be generally in compliance with" the relevant policies in development plans and other documents (§74). Lindblom J held that there was no breach of Article 31 at all, stating (at §165): "Terse as they are, the summary reasons given for the grant are also lawful. Elaborate reasons are not required. Brevity is usually a virtue, so long as the essential rationale of the decision is apparent. Here it is." He pointed out that the council members plainly agreed with the officer's report, and that report was itself sufficiently detailed. Then, at §168, Lindblom J went on to consider the position if he had found the summary reasons to be inadequate: "If I had found the summary reasons in the decision notice fell short of what was required I would have held that this did not cause the claimant or anyone else substantial prejudice. The reasons why planning permission was granted in this case may readily be seen in the officers' report, which sets them out at considerable length. In these circumstances, it could not be said that anybody has been prejudiced by a deficiency in the reasons stated in the County Council's decision notice. The remedy then, rather than an order to quash the planning permission, would have been mandatory relief requiring the reasons to be made good...." (emphasis added) From these authorities, I conclude as follows: (1) The normal remedy for failure to provide adequate reasons is to quash the underlying substantive decision. Such a remedy serves the dual purpose of encouraging rigorous decision making and avoiding the risks associated with "after the event" reconstruction of reasons. (2) Alternative remedies include an order for a statement of the reasons or, merely, a declaration that the authority breached its statutory duty to provide summary reasons. (3) Quashing might be refused where it is clear that, upon reconsideration, the substantive decision would be the same. (4) The relevant prejudice to the applicant for relief is the inability to understand whether there may be grounds to challenge the substantive decision. (5) Prejudice to the beneficiary of the decision may be a relevant factor in the exercise of discretion on remedy. Relevant Planning Policy By s.70(2) Town and Country Planning Act 1990, in dealing with a planning application, a planning authority must have regard, inter alia, to the provisions of the development plan and any other material considerations. S.38(6) of the Planning and Compulsory Purchase Act 2004 provides that where "regard is to be had to the development plan for the purpose of any determination ... the determination must be made in accordance with the plan unless material considerations indicate otherwise". Here the Defendant was required to apply its development plan and further to have regard to other material policy considerations, which here include national policy on the Green Belt. Local Development plan - Wakefield Core Strategy The Wakefield Metropolitan District statutory local development plan includes the Wakefield Core Strategy, adopted in April 2009. The Wakefield Core Strategy expressly incorporates national Green Belt policy (in the NPPF) in two policies: at CS1 Location of Development and CS3: Scale and Distribution of Additional Housing. In both policies, development is required to conform to national Green Belt policy. Green Belt and the NPPF: "very special circumstances" Since March 2012, national policy in relation to the Green Belt has been contained in the National Planning Policy Framework ("NPPF"). Paragraph 17 NPPF sets out 12 "core planning principles", the fifth of which states that planning: "should take account of the different roles and character of different areas, promoting the vitality of our main urban areas, protecting the Green Belts around them, recognising the intrinsic character and beauty of the countryside and supporting thriving rural communities within it" Chapter 9 of NPPF is headed "Protecting Green Belt Land". Paragraphs 87 to 89 provide: "87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances: 88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt, by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations 89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. [the paragraph then sets out exceptions to this] 90. Certain other forms of development are also not inappropriate in Green Belt ... [the paragraph then enumerates the "other forms"]." These paragraphs of the NPPF replaced, without material difference, Green Belt policy set out in the Government's Planning Policy Guidance Note 2: Green Belts ("PPG 2"), at paragraphs 3.1 and 3.2. In the present case, it is common ground that both aspects of the proposed development - the 20 pitch caravan/camping site and the residential use of the mobile home - constituted inappropriate development, on the basis that they did not fall within the "other forms of development" identified in paragraph 90. Thus the Defendant had to be satisfied that the "very special circumstances" test in the second sentence of paragraph 88 was established. Case law on Green Belt, inappropriate development and "very special circumstances" Whilst the application of planning policy in any particular factual circumstances is a matter of planning judgment, the interpretation of planning policy is a matter of law for the Court. A planning authority must proceed on the basis of a correct understanding of the development plan. Policy statements must be interpreted objectively in accordance with the language used, read in its proper context: see Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 at §§17, 18 and 21. As regards inappropriate development in the Green Belt and the proper interpretation of the "very special circumstances" test, to be found in §§87 and 88 NPPF (and in its predecessor PPG2), there are a number of relevant authorities. The three principal authorities are the decisions of Sullivan J (as he then was) in Doncaster Metropolitan Borough Council v. Secretary of State for the Environment, Transport and the Regions [2002] EWHC 808 (Admin) esp at §§64, 67-70, 74 and in R (on the application of Chelmsford BC) v First Secretary of State [2003] EWHC 2978 [2004] 2 P & CR 34, esp at §§42, 54-62, 65-67, 69 and 71, and the subsequent Court of Appeal decision in Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692 [2009] PTSR 19 per Carnwath LJ at §§15-32 and in particular §§21 and 25-27. I have also been referred to South Buckinghamshire District Council v Secretary of State for Transport, Local Government and the Regions [2003] EWCA Civ 687 per Pill LJ at §§30 and 31, and Taylor Wimpey (South West Thames) Limited v Secretary of State for Communities and Local Government [2011] EWHC 2090 (Admin) and, since the hearing, the recent decision of Haddon-Cave J in the Cherkley Campaign case, above These cases, and in particular the relationship between the Doncaster, Chelmsford and Wychavon cases, appear to raise some detailed issues as to precisely the correct approach to the "very special circumstances" test, which are material to the issues on Ground 2. In particular, there may be a question as to the extent to which reasoning in the Chelmsford judgment is undermined by the criticism made by Carnwath LJ in Wychavon. However, as explained in paragraphs 96 to 100 below, I have decided that it is not necessary or appropriate for me to determine Ground 2. Accordingly, I do not enter upon examination of these detailed issues. For present purposes, the following summary of the "very special circumstances" test suffices. First, the correct approach to the very special circumstances test is to ask the following question (adapting the wording of §70 in Doncaster (as approved by Carnwath LJ in Wychavon §26)): "Given that inappropriate development is by definition harmful, the proper approach [is] whether the harm by reason of inappropriateness and the further harm, albeit limited, caused to the openness and purpose of the Green Belt was clearly outweighed by the [countervailing benefit arising from the development] so as to amount to very special circumstances justifying an exception to the Green Belt policy" Thus, in considering whether to allow development in the Green Belt, the decision maker must consider, first, the "definitional" harm arising from the inappropriate development as well as such further harm to the Green Belt as is identified as being caused by the development in that case, and then secondly consider countervailing benefits said to be served by the development; and then consider whether those benefits clearly outweigh the harm so as to amount to very special circumstances. Secondly, in order to qualify as "very special", circumstances do not have to be other than "commonplace" i.e. they do not have to be rarely occurring. Thirdly, the test is not one of whether the harm to the Green Belt (definitional or specific) is "significant or unacceptable", either of itself or following the balancing exercise. I add that, whilst principally a case on the content of the "very special circumstances" test, Doncaster is also a case on the adequacy of the reasons given for a finding of very special circumstances. Although this is a case of an inspector's decision and so does not directly relate to the Article 31 duty upon a local authority, nevertheless it does demonstrate the need for sufficient reasons so as not to be left in doubt as whether the very special circumstances test has been correctly applied: see Doncaster, §§74 and 75. Remedies: Partial quashing The question arises whether, as a matter of principle, there is power to quash a grant of planning permission in part only, and if so, in what circumstances. This is not necessarily the same question as to whether it is possible to sever an invalid condition from an otherwise valid grant of planning permission. As to whether, in general, an administrative decision, found to be unlawful in some respects but not in others, can be quashed only in part, Fordham supra, states (at §43.1): "A successfully impugned measure (enactment, rule or decision) may be held not to be unlawful in its entirety. It may be possible for the measure to be overturned or declared unlawful as to the offending parts, with the remainder of it upheld and subsisting" At §43.1.6 Fordham gives examples of cases where a decision has been quashed in part. The only planning case there referred to is R (on the application of Guiney) v Greenwich LBC [2008] EWHC 2012 (Admin), recording that it was not possible in that case. The Encyclopaedia of Planning Law §P72.21 states under the heading "Severance of invalid conditions": "In holding a condition to be invalid, the court has no power to mutilate the authority's decision by removing the condition and allowing the permission to stand (Pyx Granite .... per Hodson LJ) unless the condition is severable from the permission. The test of severability is to ask whether the condition goes to the root of the permission, or whether it deals with some ulterior, collateral or trivial matter: see e.g. Kingsway Investment (Kent) Ltd v Kent CC [1971] A.C. 72 HL; Hall & Co Ltd v Shoreham UDC [1964] 1 WLR 240 ... " The paragraph goes on to state, somewhat tentatively: "There would appear to be no power to set aside a part of a planning permission: R (on the application of Guiney) v Greenwich LBC [2008] EWHC 2012 (Admin)." On this issue, the Claimant submitted as follows. First, the conventional approach to severance must be modified in its application to a grant of planning permission. Secondly, there is "little or no scope" to quash only part of a planning permission, citing Guiney §50. This is supported by the fact that, in contrast to the position relating to severance of invalid planning conditions, there is no other case authority dealing with the partial quashing a planning permission. Thirdly, the approach of "separating the bad from the good" applicable to contract or statute is not apt for planning permission. Planning permission is, in the words of Lord Guest in Kingsway (at 107A-B) "an animal sui generis" and is "entire". Fourthly, in any event, any question as to the interdependability of different parts of a planning permission involves matters of planning judgment, which are within the province of the decision maker. The Interested Party submitted as follows. First the House of Lords decision in Kingsway was a case concerning the severance of an invalid planning condition, and not partial invalidity of the planning permission. Further, when the speeches of all their Lordships are considered, the decision is not authority for the proposition that, in a planning permission case, an invalid condition can never be severed from the permission. Secondly, in both cases (partial invalidity of the permission and severance of an invalid condition), partial quashing is permissible and the test is whether the "good is so inextricably mixed up with the bad" that the entire permission must be quashed. Thirdly, Guiney is not authority for the proposition that partial quashing of a planning permission is not possible. It was a decision on the facts of that case. Having considered in detail the speeches of each of their Lordships in Kingsway and of the judgment in Guiney, I conclude as follows this issue. First, in principle, there is power in the court to make a quashing order in respect of part only of a decision: see Fordham, supra, §43.1. This principle can be applied to a grant of planning permission. Guiney is not authority to the contrary, and does not establish the proposition that it is not possible in law partially to quash planning permission. As regards the first reason given at §50 in Guiney, in my judgment the decision of the House of Lords in Kingsway does not establish that, in principle, there is "little or no scope" for severing planning permission. Kingsway was a case concerning severance of a condition from a permission. (I doubt that there is any basis in principle for distinguishing between (a) severing within the planning permission and (b) severing a conditions from the planning permission). In any event, Kingsway is not authority for the proposition that an invalid condition can never be severed from the permission. In particular, the speech of Lord Guest (at 107A) does not represent the majority view on that issue. (In any event Lord Guest (at 107B-C) also agreed with Lord Morris). Rather a majority of their Lordships (and previous case law there cited) support the proposition that severance is possible: see Lord Reid at 90A-91E, Lord Morris at 102E-103C, Lord Donovan at 114F, and Lord Upjohn at 112E-114E. De Smith, supra, §§5.145 and 5.146, and fn 505, supports this analysis of Kingsway. As regards the second, and more detailed reason given in Guiney (at §§50 and 51), the decision there not to quash partially was one of mixed fact and law and was very much taken on the particular facts of the case. That second reason did not set out any principle applicable to all cases. (I note too that in that case the choice was between partial quashing and not quashing at all). Secondly, in my judgment, the test as to whether a planning permission can be partially quashed is whether the good part is "so inextricably mixed up" with the bad part that it is not possible to save the good part, or put another way, how dependent were the other aspects of the development upon that part which has been found to be invalid. Thirdly, in considering whether to quash in part only, it is relevant to consider what the planning authority would have done had it known at the time that the grant of permission in respect of part of the development was invalid: see Kingsway per Lord Morris at 103B-C and Lord Upjohn at 113G-H, and De Smith, supra. Any such decision by the authority would have been a matter of planning judgment. Factual Background The Site and the parties The Interested Party and Goodwin Farms operate a family farm, at Santingley Grange, Wintersett, of some 165 acres of arable and grazing land. The Site is a field forming part of that farm, half a mile from the main farmstead and located adjacent to the village settlement areas in Wintersett. The Claimant is a neighbour who lives at Stoneleigh Cottages, off Ferry Top Lane, Wintersett, situated some 200 metres from the Site. The previous planning application On 25 February 2012 the Interested Party submitted a first application (ref 12/0466/FUL) for planning permission in respect of the Site. That application was limited to the grant of permission for a residential use of 1 mobile home for a caravan and campsite warden/farm worker, with associated operational development. At that point in time, the Interested Party was not seeking to expand the camping activities at the Site to an extent which required planning permission. On 11 June 2012, the Defendant's planning officer, Mr Herbert Tos ("the Planning Officer") produced a report considering this application in some detail. The Interested Party's arguments in support of permission included the need for the provision of security and tourist service and the need to improve the safety and welfare of livestock on the farm. The Planning Officer concluded that these arguments did not amount to very special circumstances justifying inappropriate development. Safety and security issues were not sufficient to justify the proposed dwelling, and the presence of staff could be achieved by other means. Further there was no sufficient evidence to support the claim of agricultural diversification. Accordingly, he recommended refusal of the application. As a result, the Interested Party withdrew the application. The instant planning application On or around 5 July 2012, the Interested Party put a mobile home on the Site. Then on 30 July 2012, the Interested Party submitted a further application for planning permission, for: "Change of use from agricultural field to 20 pitch caravan and camping site including managers' mobile home (part retrospective). Resubmission of Application Number 12/0466FUL" This time the application was not only for a change of use to allow a residential manager, but also for planning permission for a 20 pitch caravanning/camping site, which would be open to all members of the public. I understand that the application was "in part retrospective", because by that time some aspects of the proposed development were in place or had been constructed. The Design, Access and Planning Statement The Interested Party submitted a detailed Design, Access and Planning Statement in support of this application. It pointed out, inter alia, that there were only two other commercial touring sites within Wakefield MDC area and that farm diversification is heavily supported by national and local planning policy. It also referred to Good Practice on Planning for Tourism which states that "for many types of holiday parks, a residential managerial presence is often essential to achieve quality of service to the customer, security for the property and to meet the obligations of health and safety regulations". Further, aware that the Planning Officer had previously not been convinced of need for a residential manager, the Statement addressed some of his concerns, emphasising that the risk of crime was very significant and that such crime would impose costs upon the business at the Site. The Planning Officer's Report On 30 October 2012 the Planning Officer produced his report on this application ("the Report"). The Report recorded that the mobile home was in situ, and that planning permission was not required for the structure but for the use of the land for residential purposes. In summary, the Planning Officer identified both aspects of the proposal as "inappropriate development" in the Green Belt and stated that it could only be justified if "very special circumstances" outweighed the harm to the Green Belt. He considered, distinctly, the two aspects of the application: the 20 pitch site and the residential manager in the mobile home. In respect of each, he identified the additional harm to the Green Belt and whether the claimed considerations said to amount to very special circumstances outweighed the harm to the Green Belt. In the case of the 20 pitch site, he concluded that there were very special circumstances; in the case of the residential use for the manager's mobile home, he concluded that there were not. Accordingly he recommended that planning permission be granted for the 20 pitch site, but be refused for the residential use for the manager's mobile home. It is necessary to look at the Report in a little more detail. The Report set out, verbatim, the terms of paragraph 87 and the second sentence of paragraph 88 of the NPPF. Then, on the question of "harm", the Officer addressed the two aspects of the application distinctly, stating: "It is considered that the harm to the Green Belt caused by the proposed camping/caravanning site would include visual impact of the associated infrastructure within the land and the effect on the appearance of the land due to fluctuating numbers of caravans/tents and associated vehicles/cars parked at the site. The harm to the Green Belt caused by the proposed residential use of land includes visual impact of the provision of necessary infrastructure to serve the occupation of the site and permanent visual impact of the proposed mobile home together with associated cars/vehicles." Having identified the "harm", the Planning Officer then went on to consider whether "very special circumstances" justified granting the application, dealing with the two aspects separately. First, in respect of the 20 pitch site, the Report stated: "Consideration of very special circumstances - caravan/camping site The applicant's case can be summarised as follows: The proposal would assist in achieving diversification of the farm business The scheme would benefit the local economy and encourage tourism in the local area; There is an unmet need for caravan and camping provision in the district Officers consider that the scheme would be in line with the aspirations of the district to encourage local business and it would benefit the tourist economy by adding to the offer for any visitors to the area. The scheme would also aid diversification of the local agricultural business and would help to generate additional income in the local economy, Having considered the above benefits of the scheme in the context of the Green Belt policy it is concluded that there are very special circumstances and outweigh the harm by reason of inappropriateness and visual harm of the development as identified above. Given the above it is concluded that the proposed change of use of land to a caravan/camping site and associated infrastructure would not be contrary to the guidance of NPPF and policy SC1 of the Core Strategy It is however recommended that the use of the site takes place only for 10 months within any one year to prevent a permanent residential use of any of the plots to be established and to retain the character as short stay caravan/camping site." Secondly, in respect of the residential use of the mobile home, the Report stated: "Consideration of very special circumstances - residential use of land associated with the caravan/camping site The applicant's case can be summarised as follows: The proposal would secure diversification of the farm business and also benefit local economy/tourism; The presence of a warden at the site will be necessary seven days a week from early morning to late evening to attend any visitors arriving/leaving the site; A manager's presence is required at the site in case of any emergency and to control access to the site; The proposed camping site will be operating all year, including winter months; The intended on-site accommodation would provide security for the site and enhance level of safety within the local area, including safety of the farms' livestock; There is an unmet need for caravan and camping provision in the district; On site accommodation is recommended by the Good Practice Guide on Planning for Tourism." I refer to these foregoing considerations as the Interested Party's "seven considerations" The Report continued: "Officers accept that the operation of the site will require a presence of a warden/staff at the site to direct visitors, control access and provide overall management of the caravanning site. It is however considered that this could be achieved by other means (by provision of a small site hut/office for instance) and considering that the applicant lives in proximity of the site, does not justify the provision of an on-site mobile home in the Green Belt. Furthermore, given that a staff presence can be achieved at the site for much of the day/evening without a residential use at the site, it is considered that the need for presence in case of an overnight emergency on a small touring camp site is likely to be very limited and does not justify the provision of a permanent mobile home on the site. It has already been recommended that the operation of the camp site is limited to 10 months of the year. In any event, there will no doubt be seasonal fluctuations in respect of occupancy rates. These factors further reduce the case for the provision of a permanent mobile home on the site." After recording the applicant's arguments based on security at the site and security of livestock, the Report continued: "It is acknowledged that an on-site residency of the site manager would undoubtedly add to the level of natural surveillance in the areas and the comments in this respect provided by the Police Architectural Liaison Officer confirm the above. Notwithstanding the above and the examples of theft and vandalism in the local area, it is considered that the locality of the application site is not more vulnerable to crime than any other rural area within the district. Given the above and the fact that a reasonable level of security at the proposed site can be provided without a residential occupation of the land, it is considered that the above arguments do not amount to very special circumstances which clearly outweigh the harm by reason of the inappropriateness and the visual impact of the mobile home." (emphasis added) The Report then referred to CS8 of the Core Strategy addressing the encouragement of tourism, and continued: "It is considered that the support for the caravan/camping site in accordance with the above policy does not necessarily imply that a residential use of land associated with the above proposal must also be supported. In this case, it is considered that the business can operate without a permanent mobile home on the site. The advice contained in the Good Practice Guide on Planning for Tourism is noted and has been taken into account when assessing the proposal. The guide recognises a need for some developments to include an on-site staff accommodation. However, for the reasons already given, it is not considered that the need for a permanent mobile home on the site has been demonstrated." The Report then drew together its conclusions on very special circumstances in respect of the two aspects: "Summary of consideration of very special circumstances It is considered that there are very special circumstances to justify the proposed change the use of the land to a caravan/camping site in accordance with the guidance of NPPF and policy SC1 of the Core Strategy. It is considered that this use can operate successfully without a permanent residential use of the site. It is therefore concluded that in this instance there are no very special circumstances to justify this part of the development within the Green Belt contrary to the guidance of the NPPF and policies CS1, CS3 of the Core Strategy." Accordingly, the Officer recommended a split decision with approval (subject to conditions) for the 20 pitch site aspect of the development, and refusal of the proposed residential use of the land "as it is considered that no satisfactory justification for this part of the proposal has been made which clearly outweighs the harm to the Green Belt". At the end of the formal recommendation, there is a "Note", which is in the same terms as the Note in the Decision Notice, set out in paragraph below. It appears, from its inclusion in the Report, that at that stage that wording was intended to cover permission in respect only of the 20 pitch site. The Decision Meeting on 8 November 2012 and the Minutes At its meeting on 8 November 2012, the Defendant's Planning and Highways Committee ("the Committee") resolved that it was minded to approve the grant of planning permission, for a temporary period of three years, for the whole of the proposed development. The minutes of that meeting ("the Minutes") recorded that decision and stated: "Notwithstanding Officers advice, Members felt that the proposed development in (2) above was appropriate to this location and would not result in any significant or unacceptable harm to the Green Belt." Officer recommendation was for a split decision" In the Minutes, the "proposed development in (2) above" was identified specifically as that part of the application seeking residential use of the mobile home. These minutes were formally approved as a correct record at the Committee's subsequent meeting on 29 November 2012. The formal decision notice On 28 November 2012, the Defendant issued its formal decision notice granting planning permission ("the Decision Notice"). The Decision Notice recorded the grant of planning permission, as set out in paragraph 1 above, and subject to conditions. Explanatory reasons were given for the conditions: condition 11 stated: "The use of the land for the purposes of siting of the mobile home shall be only for the benefit of the touring caravan and camping site's manager and her/his family to provide security and to manage the touring caravan and camping site. Reason: To provide justification of very special circumstances for an inappropriate development within the Green Belt in accordance with the guidance of the NPPF." At the end of the Decision Notice, under "Notes", it was stated as follows: "Having taken into account the submitted details and all material planning considerations, including those raised in the consultations and representations received, it is considered that the proposed use of land for a 20 pitch touring caravan/camping site, the siting of a mobile home and associated infrastructure is supported by very special circumstances and therefore is acceptable at this location and would not result in any significant or unacceptable harm by reason of its design, appearance, impact on local amenity and highway safety, effect on the openness of the Green Belt, drainage and flood risk, landscaping, drainage, crime prevention, ecology, minerals' extraction subject to the indicated planning conditions" (emphasis added) As pointed out above, this same wording was included in Planning Officer's Report, where it applied only to the 20 pitch site. However, as included in the Decision Notice, these same words on their face apply to both aspects of the proposal, including residential use of the mobile home. The use of the same words is difficult to understand, and may suggest that no distinct reasons are being given in this Note for the specifically different position adopted by the Committee. The Decision Notice contains no reference to the Report or to the reasons therein relating to the residential use of the mobile home. Procedural background On 4 February 2013, the Claimant sent pre-action protocol letters to the Defendant and the Interested Party, setting out, in some considerable detail, his challenge to the Decision, including the two grounds now relied upon. By letter dated 19 February 2013 the Defendant responded, agreeing to the quashing of the planning permission on the basis of Ground 1 only and invited the Claimant to draw up a consent order. The Defendant indicated that it did not concede Ground 2, and in particular that the challenge to the Report failed to take account of the disapproval, by the Court of Appeal in Wychavon, of the Chelmsford case. On 22 February 2013, the claim form was issued. The Claimant sought the Interested Party's consent to an order quashing the Decision. On 8 March 2013, the Claimant served the claim form on the Defendant and on the Interested Party. On 13 March 2013, the Interested Party informed the Claimant that she was contesting the claim. On 20 and 21 March 2013, the Claimant and Defendant signed an agreed consent order. The consent order agreed to the quashing of the Decision in its entirety. In an accompanying agreed "statement of matters", they agreed that the planning permission should be quashed specifically on Ground 1. It was further stated that "the parties reserve their position as to Ground [2]". On 25 March 2013 the Interested Party filed its acknowledgement of service enclosing summary grounds for contesting the claim. Following the signing of this agreed consent order and the Interested Party's indication of contesting, the Defendant was kept informed of the progress of the proceedings. On 28 March 2013, the Claimant sent a copy of its full statement of facts and grounds to the Defendant and to the Interested Party. In accordance with its terms, the order of 11 June 2013 of King J directing a rolled up hearing, was served on the Defendant, as well as the Interested Party. By email dated 17 June 2013 to the Court, the Defendant stated that it would not attend the court hearing, as it had previously indicated its consent to the quashing of the planning permission. Thereafter, the Claimant sent to the Defendant, by email dated 5 August 2013, an electronic link to the trial bundle and, by email dated 8 August 2013, a copy of its skeleton argument for the present hearing. On 13 August 2013, the Defendant acknowledged receipt of the skeleton argument as a party to the proceedings and repeated that it would not be in attendance at the hearing The Issues The Claimant challenges the Decision on two grounds: Ground 1: the Defendant gave no adequate reasons as to why the Application was justified by "very special circumstances. Ground 2: the Defendant failed properly to interpret or take account of Green Belt policy. The Claimant's case is, first, the reasons for the Decision were inadequate, and that, on this ground, the Decision should be quashed in its entirety; on that basis, he does not press his case on Ground 2. Secondly, and alternatively, if the reasons are not inadequate, or if the Decision is not quashed, or not quashed in its entirety, then the court should go on to find in his favour on Ground 2 and quash the decision in its entirety on that basis. The Interested Party's case is first that the reasons were not inadequate; secondly, and alternatively that, even if the reasons were inadequate, the Decision should not be quashed; rather the appropriate remedy is an order for reasons to be given or for a declaration of breach of the statutory duty to give reasons. Thirdly, even if a quashing order is appropriate, the Decision should only be partially quashed i.e. in so far as it relates to residential use of the mobile home. Fourthly, and in any event, the court should not consider Ground 2, because the Defendant has not appeared to contest it. In the light of these contentions, the issues which arise for determination are as follows: Ground 1: (1) Were the summary reasons given by the Defendant inadequate? (2) If so, is the appropriate remedy, a quashing order, an order for further reasons, or a declaration of breach of duty? (3) If the appropriate remedy is a quashing order, should the Decision be quashed in full or only in part? Ground 2: (1) Can the Court consider Ground 2 at all, given the Defendant's position? (2) In the light of the answers in relation to Ground 1, should the Court consider Ground 2? (3) If the Court considers Ground 2, was the Decision unlawful for failure to interpret Green Belt policy in respect of (a) the 20 pitch site and (b) the residential use of the mobile home? Ground 1: Reasons Issue (1): Adequacy of reasons Parties' submissions The Claimant submitted that the summary reasons given by the Defendant were inadequate, in breach of Article 31 of the Order, in all the circumstances of the case. This was a case where the Committee refused, at least in part, to follow the recommendation of the Planning Offer, and so a fuller summary of reasons was necessary. In this context, the Claimant emphasised the importance, in a Green Belt case, of the "very special circumstances" test being applied with rigour. The reasons in relation to the permission for residential use of the mobile home were inadequate in circumstances where the Planning Officer had considered that issue in some considerable detail in the Report, expressing views consistent with those detailed in his report on the previous application. As regards the Minutes, the reasons recorded there gave no indication of whether the Committee considered that the proposal amounted to "inappropriate development" at all; nor, if it did so amount, whether, and if so, what weight was to be given (a) to definitional harm or (b) "any other harm" to the Green Belt; what circumstances were to be weighed against those harms to the Green Belt, and whether those circumstances were "very special" and why they were "very special". The Minutes made no reference at all to the "very special circumstances" test. Further they gave no indication as to what respects, and on what basis, the Committee disagreed with the Planning Officer. As regards the Decision Notice, whilst reference was made to "very special circumstances", again no indication was given as to what respects, and on what basis, the Committee disagreed with the Planning Officer, what circumstances were considered to be very special, and why. This was particularly relevant to residential use of the mobile home, as the Planning Officer had ruled out each of the seven considerations put forward by the Interested Party. Nor was there any indication of why any potential harm to the Green Belt was "clearly outweighed" by other considerations. In summary, at the very minimum, the Defendant was required to identify the circumstances which were capable of being "very special", the reasons why they were "very special" in the case, and briefly, why they disagreed with the Planning Officer's conclusions. It had not done so. As a result, the mischief identified in Siraj §15 was present: the Claimant could not ascertain whether the Committee had interpreted the Green Belt policy correctly and taken into account all relevant matters. Indeed there was no evidence that the Committee had even turned their minded to consider whether "very special circumstances" existed, or, if they had, whether they had addressed their minds to the correct legal test to be applied. The reference, in the Minutes and in the Decision Notice to the concept of "significant or unacceptable harm" gave rise to a real risk that the Committee in fact adopted or applied the wrong test. Whilst the Claimant submitted that the inadequacy was particularly relevant to the residential use aspect of the permission, his case was that there was an overall failure to give adequate reasons, which applied to the decision as a whole. The Interested Party submitted that "summary reasons" were not intended to present a full account of the local planning authority's decision making process. He accepted that the Minutes and the Decision Notice could have been better drafted, but this is not a question of precise interpretation; it is sufficient for the reader to be able to understand how and why permission has been granted. The Claimant can understand from the reasons given why planning permission was granted and can ascertain whether the Defendant correctly understood and applied the "very special circumstances test". In the present case, whilst the reasons given were brief, when read in light of the Report it is obvious that the issue of "very special circumstances" was properly considered and that the Committee accepted the Report as regards the 20 pitch site, but did not accept the Report's view that in this instance there was no need for a residential manager. The Interested Party submitted that the following statement could be spelt out from the Minutes "Members feel that the proposed residential use was appropriate for this campsite, contrary to the view of the Planning Officer". In the Report, the Planning Officer had identified seven considerations, which he considered were capable of amounting to very special circumstances, if, as matter of fact, a residential manager was necessary. In fact, the Planning Officer had concluded that a residential manager was not necessary. Had he concluded to the contrary on this issue of "fact", the Planning Officer would have found that very special circumstances existed. The Committee, on the other hand, concluded to the contrary on this issue of fact; and it follows therefore, that those seven considerations, potentially identified by the Planning Officer, had been found to exist by the Committee and were the "very special circumstances". In this way, the Committee necessarily accepted the seven considerations identified by the Planning Officer, and merely disagreed on that one issue - whether the business could be operated without a residential manager. The Committee's decision was based on nothing more than a factual finding as to the requirement to have a residential manager. Analysis First, and strictly, it is the summary reasons given in the Decision Notice which are relevant: see Article 31(1)(a) of the Order. At the very least it is these reasons which are the starting point for consideration of this issue. Secondly, this is a case where the council did not follow the advice of the planning officer. Whilst it is the case, that the Committee did in part follow the Planning Officer's recommendation, nevertheless the part which it did not follow (relating to the residential manager) was a very substantial element of the planning application. On this aspect, the Report contained detailed reasons for recommending refusal. In these circumstances, when the Committee was taking a decision contrary to those detailed reasons, the Committee was required to give sufficient reasons to enable the Claimant and any other party to understand why that advice had not been followed, and to ascertain whether the Committee had interpreted and applied the relevant policy correctly. Accordingly, in principle, this was a case where fuller summary reasons might well be necessary, and the question is whether a member of the public can ascertain, from the Report or the Decision, whether the Committee correctly interpreted the relevant policies and took all relevant matters into account and disregarded irrelevant matters: see paragraph 9 above, propositions (5) to (8). This meant that some explanation, however brief, had to be given by the Committee as to what the very special circumstances were, why they amounted to very special circumstances, and, further, why the Committee did not accept the reasons given by the Planning Officer for reaching the opposite view in relation to the residential manager. Thirdly, turning to the Decision Notice itself, the relevant reasons are contained, principally, in the paragraph in Note 1 set out at paragraph 56 above. There it is stated that it is considered that both elements of the proposed development "is supported by very special circumstances and therefore is acceptable at this location and would not result in any significant harm". Whilst there is reference to "very special circumstances", what those circumstances are, were not identified. These reasons are minimal. (By contrast, in Siraj, four specific factors were expressly identified in the summary reasons (§9), and from §§23 and 24 of his judgment, it is clear that Sullivan LJ regarded their specific identification (even in a "follow" case) as an important element of reasons which he found to be sufficient). It is the case that in the section dealing with conditions, the Decision Notice does refer, in its reasons for Condition 11, to "inappropriate development" and to the need for justification by very special circumstances, and, further, the framing of the Condition 11 itself appears to suggest that the residential manager is required to provide security and to manage the site. Even if the Minutes can properly be taken into account, as forming part of the required "summary reasons", in my judgment, they do not expand upon or clarify the reasons for the decision. Whilst, in contrast to the Note in the Decision Notice, they do refer distinctly to the residential use aspect of the permission and to the fact that the Committee is not following the planning officer's recommendation, in my judgment, on their face, the Minutes contain not only no explanation of, but no reference at all to, very special circumstances, nor of the Committee's reasons for disagreeing with the Report. Moreover the reference to residential use being "appropriate" and to the concept of "significant or unacceptable harm to the Green Belt" raise doubts as to whether the correct approach had been taken by the Committee to the "very special circumstances" test. I turn to the Interested Party's submission that, because the Committee found "as a fact" that a residential manager was required, it follows that the "very special circumstances" it found were the seven considerations she had put forward in the application. First, the Interested Party put forward seven considerations as very special circumstances. Five of those considerations related specifically to the asserted need for a residential manager. The Report rejected those considerations and recommended refusal of permission. The Committee in turn rejected that recommendation. In my judgment, it does not follow, necessarily, merely from this sequence of events (and without any further explanation) that the Committee accepted any one or more of the seven considerations put forward by the Interested Party as being "very special circumstances" justifying development in the Green Belt. For my part, I doubt very much whether, in a case where the planning officer's recommendation is not followed, it is appropriate effectively to do no more than to refer the reader back to that officer's report to try to work out, by way of inference, the reasons for the contrary conclusion. Even if it is appropriate, it does not answer the question why the council differed. At most, in some circumstances, there might be an inference from "the rejection of the rejection" that the considerations advanced in the first place were the relevant "very special circumstances" found by the council. However, in the present case, that inference cannot be drawn and certainly would not necessarily be drawn by an interested party. First, the express reasons given in Note 1 and in the Minutes are suggestive of the application of a different approach (significant and acceptable harm); secondly, it is not clear whether the Committee accepted all of the seven considerations or only some of them, and, if so, which. Secondly, there is no express statement that the Committee did "find as a fact" that a residential manager was necessary (and that the alternatives put forward in the Report were not acceptable). Such reasons as are given in the Decision Notice and the Minutes suggest a conclusion that a residential manager was "acceptable" or "appropriate". If indeed the Committee did so expressly decide, then given that they were differing from the Report, this should have been included in the summary reasons. Thirdly, and, most importantly, no reasons at all are given as to why the Committee concluded that a residential manager was necessary (if it did so conclude) or appropriate, and why in this respect they did not accept the Report. In the Report, and indeed in his earlier report, the Planning Officer had given detailed reasons as to why he did not consider that there was a need for a residential manager: a small site office could be provided; the applicant lived nearby; very limited need for presence to deal with an overnight emergency; seasonal fluctuations in occupancy; no greater risk of crime; and reasonable level of security could be provided in any event. In its reasons, the Committee does not deal with any of these matters, nor even say why it disagrees with the Officer's reasons. As a result, it is not possible to ascertain (a) whether the Committee rejected some or all of the Planning Officer's reasons for recommending refusal nor (b) whether the Committee accepted some or all of the "seven considerations" advanced by the Interested Party. In circumstances where the Planning Officer has given, in the Report, detailed reasons for concluding that very special circumstances did not exist and where he had effectively reached this conclusion on two distinct occasions, this was a case where fuller summary reasons were necessary and the Committee was required to give a summary of its reasons why they did not accept his recommendation nor his reasons. It did not do so. As to Condition 11, even if its wording can be read as identifying two matters as "very special circumstances", there remains no explanation as to why those matters amount to "very special circumstances" and why the Committee disagreed with the reasons in the Report. A consideration of all relevant material leads to the conclusion that it is not possible in this case for the Interested Party (or indeed any relevant third party) to ascertain from the reasons given for the Decision whether the Defendant properly interpreted or applied the "very special circumstances" test, and what considerations it did or did not take into account. Accordingly, I conclude that, in breach of its duty under Article 31(1)(a)(i) of the Order, the Defendant failed to give an adequate summary of their reasons for granting permission in the Decision. Issue (2): consequences of failure to provide adequate reasons The first question is whether, in this case, the appropriate remedy for the breach of the duty to give reasons is an order to quash the Decision, or, alternatively, an order directing the provision of reasons or a declaration of breach of duty. The Interested Party submitted that, in the present case, the normal remedy for failure to provide adequate reasons of a quashing order is not appropriate and that one of the other two alternative courses should be adopted. She relied upon the decisions in Macrae and Prideaux, as cases where, despite a breach of the duty to give reasons, the remedy considered appropriate was, respectively, a declaration of breach and an order directing further reasons. She submitted that she will suffer prejudice if the Decision is quashed, and that the Claimant will suffer no prejudice, if the Decision is not quashed. In Macrae, the Court of Appeal itself emphasised that there must be powerful reasons for not quashing a decision notice which did not include adequate summary reasons. The question here is whether there are such "powerful reasons". In my judgment, the conclusions on remedy in Macrae and Prideaux are distinguishable from the present case on the facts. Most significantly, in Macrae the key consideration which led the Court of Appeal merely to make a declaration of breach was the fact that there was no continuing challenge to the substantive validity of the underlying planning decision: see paragraph 15 above. By contrast, in the present case, the Claimant does contend that the Decision is unlawful, not merely because of the technical failure to give reasons, but, on Ground 2, because of a substantial failure to interpret or apply the "very special circumstances" test. Here, whilst ultimately it is a matter for the Defendant, given the Claimant's stance, it is not "inconceivable" (nor "most unlikely") that the Defendant, on redetermination, would reach a different conclusion - for example, by refusing to grant permission in whole or in part. Accordingly, the justification for a declaratory remedy in Macrae does not apply here. Further, as pointed out by Pill LJ in Macrae, if, instead, reasons were to be ordered, there remains a risk of "ex post facto" reasoning in circumstances where 10 months has elapsed since the relevant Committee meeting took place. I note too that the Defendant itself has not contended that it should be given the opportunity to state its reasons; it has not objected to the Decision being quashed. Given the underlying rationale for quashing a decision where reasons are inadequate, and given the difficulty in understanding here the Committee's approach to the "very special circumstances" test, I consider that an order to state reasons is not the appropriate remedy in this case. As regards Prideaux, the relevant prejudice to the claimant, the absence of which in that case justified an order for reasons rather than a quashing order, was the prejudice of not being able to ascertain the reasons for the decision: see §168. (It was not financial or more general prejudice to the claimant.) That prejudice is the prejudice identified by Sullivan LJ in Siraj at §15. However that reasoning does not apply here. Prideaux was a case where the council had followed the planning officer's recommendation and the reasons could be "readily seen" in the officer's report. The present case is a "not follow" case, and, as explained above, the Committee's reasons cannot be seen from the Report. In the present case, the prejudice (as contemplated by Lindblom J in §168) of not knowing the basis of the Defendant's decision does arise. As to prejudice to the Interested Party, she has gone ahead and invested in, and operated, her camping and caravanning business at the Site. Although it is accepted that, if the permission is quashed, the Defendant is most unlikely to take enforcement action, pending reconsideration of a further application for permission, I was told that, for as long as there is no planning permission in place for the Site, then the Interested Party will not have a valid site licence from the relevant environmental health department, and for that reason, will not be able to operate the business in any such interim period. I was also told that, because of the pending proceedings, the Interested Party has not in fact taken bookings going forward. I accept that, at least pending the redetermination of her application for planning permission, the Interested Party may well suffer some prejudice in the form of lost business; although given that summer has now passed, I do not know how substantial such loss of business may be. I also note that the Interested Party has known, since February this year at the latest, of the present challenge to the planning permission, and of the fact that the Defendant itself agreed to it being quashed. Carrying on her business thereafter was done in knowledge of the risk of the permission being set aside. In many cases where planning permission is subsequently quashed, the beneficiary will or may suffer prejudice if he or she has continued to act on the basis of the ongoing validity of that permission. Whilst I have some sympathy with the Interested Party's position, I do not consider that this provides a sufficient "powerful reason" not to quash the Decision. I conclude that, in principle, the appropriate remedy here is to quash the Decision. Issue (3): Whether to quash the Decision in part only The Interested Party further submitted that any quashing order should relate only to that part of the Decision which granted planning permission in respect of residential use of the mobile home; planning permission should remain in respect of the 20 pitch site. The deficiency in reasoning arose only in respect of the second aspect of the permission, the residential use of the mobile home. The Claimant maintained that, even if there is scope for quashing a planning permission in part only, whether the grant of permission for the 20 pitch site was dependent on the grant of permission for the residential manager was, and remains, a matter of planning judgment and one properly for the Defendant; on that basis, the Decision should be quashed in its entirety. For the reasons given in paragraph 38 above, I consider that there is power to quash a planning permission in part, and that, in an appropriate case that might be done. The question is whether this is such an appropriate case. The question then is whether the grant of planning permission for the 20 pitch site is dependent upon, or "inextricably mixed up with" the grant of permission for the residential manager. Put another way, "would the Defendant have granted permission for the 20 pitch site, if, for whatever reason, they had not at the same time granted it for the residential manager"? The Interested Party advanced, and I accept, the following considerations. First, the Claimant did not directly impugn the summary reasons in so far as they related to the grant of permission for the 20 pitch site. Secondly, and more importantly, the Planning Officer separated out the two aspects of the proposal, addressed the issues in respect of each separately n the Report and recommended a split decision. The Minutes also seem to suggest that the Committee gave some distinct consideration to the two aspects, and seem to acknowledge that a split decision might have been an option. Nevertheless, despite these considerations, I am not satisfied that partial quashing is appropriate. First, even if the summary reasons given were inadequate because, very largely, they did not explain the Committee's reasons in relation to the residential manager (the need for which arose in turn because of the failure to follow the Report), nevertheless, strictly, the breach of the duty in Article 31(1)(a) relates to the decision notice in its entirety i.e. the duty is to include in the single notice an adequate summary of reasons, and here that duty was breached. Secondly, and more significantly, I accept that the question of whether the "good" was dependent on the "bad" was a matter of planning judgment for the Defendant council, and further that, as in Kingsway, I must consider what the Defendant council would have done, if it had not been able to grant permission for the "bad". Even if in the Report, the Officer considered that permission could have been granted in part, this does not answer the question whether the Defendant would have been prepared to grant permission for the 20 pitch site, without at the same time granting permission for the residential manager. It is not sufficiently clear to me that they would have been so prepared. The application for permission was "entire" - the mobile home was stated to be "included" within the use as a 20 pitch site. The Interested Party's case in her application did not distinguish between the two aspects; it was that a residential manager was necessary in order to operate the 20 pitch site. Some of the relevant factors in favour of the application applied to both aspects. Thirdly, it is noteworthy that the Defendant itself has consented to the quashing of the Decision in its entirety, and has not advocated partial quashing only. In my judgment, in order to be satisfied that a partial quashing order is appropriate, I would need to be satisfied (as in Kingsway) that, had it been told that it could not grant permission for the residential manager, the Committee would clearly have proceeded to grant permission for the 20 pitch site alone. On the material before me, I am not so satisfied. It is possible that the Committee would have concluded that, because they could not grant permission for a residential manager, they would not have granted permission at all. If, in fact, the Committee were of the view that the site could not operate properly without a residential manager, then they may not have granted permission at all. Accordingly, the Decision will be quashed in its entirety. Ground 2: failure to interpret Green Belt policy The Claimant's case is that the Defendant failed properly to interpret paragraphs 87 and 88 of NPPF. As regards the 20 pitch site, the Planning Officer's approach to the "very special circumstances" test was erroneous, and, assuming that in fact the Committee adopted that approach, it too erred. If it did not follow the Officer's approach, then any other approach it may possibly have adopted must also have been wrong. As regards the residential manager, the Committee asked itself the wrong question, and in answering it, failed to apply the correct approach to policy. I have received detailed submissions on Ground 2, in particular from the Claimant, on the content and interpretation of the very special circumstances test and its application by the Defendant in the present case. These submissions were advanced on the hypothesis that I did not find for the Claimant on all aspects of Ground 1. From consideration of these submissions, I am satisfied that Ground 2 is sufficiently arguable to justify the grant of permission to apply for judicial review. However, in the light of my conclusions above on Ground 1, a decision on Ground 2 is not necessary. Moreover, in my judgment, a ruling, in the alternative, upon Ground 2 is not appropriate, for the following reasons. First, the Interested Party submitted that I should not proceed to rule upon Ground 2. More particularly, the Claimant indicated, in oral argument, that if I found in his favour on Ground 1, he would prefer that I should not go on to consider Ground 2. Secondly, the Defendant has not made submissions to the Court on Ground 2, despite having indicated earlier its disagreement with the Claimant on Ground 2. I accept that, as a result of events between March and August 2013, the Defendant was fully aware that the Claimant intended to proceed with both Grounds at the rolled up hearing and was provided with the Claimant's grounds and skeleton, including the argument on Ground 2. If I had decided not to quash the Decision on Ground 1, I would not have considered the Defendant's non-appearance as a bar to proceeding to determine Ground 2. However, it is certainly arguable that the terms of the agreement reached between the Claimant and the Defendant in March 2013 (paragraph 58 above) make it, at the very least, unfair to proceed to determine Ground 2 in the Defendant's absence and in the circumstances which have arisen. As a matter of construction of that agreement, the Claimant and the Defendant agreed that, if the Decision was not quashed on Ground 1, the parties, including the Defendant, would be free to contest Ground 2; the implication being that, if the Decision was quashed on Ground 1, then the Claimant agreed not to pursue Ground 2. Thirdly, both the Claimant and the Interested Party will have a further opportunity to put their arguments to the Defendant on the application of the "very special circumstances" test in the present case, in the event that further application is made by the Interested Party. Finally, were the decision to quash on Ground 1 to be the subject of an appeal, and if, in that event, the Claimant sought to rely on Ground 2, he will be able to put his arguments on that appeal. None of the parties has suggested that I should express my views on the issues for the purposes of any such appeal. Conclusions I am satisfied that the Claimant's case, both on Ground 1 and on Ground 2, is arguable, and I therefore grant permission to apply for judicial review. In view of my conclusions at paragraphs 80, 88 and 94 above, I conclude that the Decision Notice did not include an adequate summary of the Defendant's reasons for granting planning permission and that the appropriate remedy for that breach of duty is that the Decision should be quashed. Consequential matters I will hear submissions on the appropriate terms of the order, if the parties are unable to agree. I propose dealing with this and other consequential matters, including costs, immediately following the handing down of this judgment, unless any party requests that they be dealt with subsequently and in which event, I will give further directions as to the procedure to be followed, including for the service of written submissions. I am grateful to Mr. Simons and Mr Smith for their assistance to the Court in the presentation of oral and written argument in this matter.

Opinion of Mr Advocate General Léger delivered on 17 November 1994. - Commission of the European Communities v Kingdom of Spain. - Failure by a Member State to fulfil its obligations - Directive 90/167/EEC - Conditions governing the preparation, placing on the market and use of medicated feedingstuffs in the Community. - Case C-94/94. European Court reports 1994 Page I-05777 Opinion of the Advocate-General ++++ Mr President, Members of the Court, 1. By an application lodged at the Court Registry on 18 March 1994 the Commission of the European Communities requests the Court pursuant to Article 169 of the EC Treaty: ° to declare that the Kingdom of Spain has failed to fulfil its obligations under Articles 5 and 189 of the Treaty establishing the European Communities by failing to adopt and bring into effect within the prescribed period the laws, regulations and administrative measures necessary to implement Council Directive 90/167/EEC (1) (with the exception of the obligations laid down in Article 11(2)); ° to order the defendant to pay the costs. 2. Article 15 of the abovementioned directive provides that the Member States must adopt the laws, regulations and administrative measures necessary to comply with the directive by 1 October 1991 at the latest and inform the Commission immediately thereof, save as regards the requirements laid down in Article 11(2) (the final date for transposition into national law in that regard is fixed as 31 December 1992), which is not relevant to this action. 3. The application was preceded by a formal letter of notice dated 20 May 1992, followed by a reasoned opinion dated 3 May 1993. 4. In the most recent document it submitted to the Court, the Kingdom of Spain challenged the well-foundedness of the action, relying on the "imminent" publication of a royal decree by the Council of Ministers, the draft version of which is at a "very advanced" stage. 5. However, even if the breach is about to be terminated it is not denied that the legislation was not in force on the expiry of the time-limit laid down in the Commission' s reasoned opinion, which is the relevant date. (2) In any event, the Court has consistently held that a Member State cannot rely on provisions, practices or circumstances in its internal legal order in order to justify failure to comply with Community law obligations. (3) 6. It follows that the failure on the part of the Kingdom of Spain to fulfil its obligations, alleged by the Commission, has been established. 7. I therefore suggest that the Court: ° declare that the Kingdom of Spain has failed to fulfil its obligations under Articles 5 and 189 of the EC Treaty and Article 15(1), second indent, of Council Directive 90/167/EEC of 26 March 1990 laying down the conditions governing the preparation, placing on the market and use of medicated feedingstuffs in the Community by failing to transpose that directive (with the exception of Article 11(2)) into national law; ° order the defendant State to pay the costs. (*) Original language: French. (1) ° Directive of 26 March 1990 laying down the conditions governing the preparation, placing on the market and use of medicated feedingstuffs in the Community (OJ 1990 L 92, p. 42). (2) ° See Case C-313/93 Commission v Luxembourg [1994] ECR I-1279, paragraph 10. (3) ° See, most recently, Case C-65/94 Commission v Belgium [1994] ECR II-0000 .

FIRST SECTION CASE OF SAILER v. AUSTRIA (Application no. 38237/97) JUDGMENT STRASBOURG 6 June 2002 FINAL 06/09/2002 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sailer v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrG. Bonello,MrP. Lorenzen,MrsN. Vajic,MrsS. Botoucharova,MrV. Zagrebelsky,MrsE. Steiner, judges,andMrS. Nielsen, Deputy Section Registrar, Having deliberated in private on 16 May 2002, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 38237/97) against the Republic of Austria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Gerhard Sailer (“the applicant”), on 7 October 1997. 2. The applicant was represented by Mr J. Postlmayr, a lawyer practising in Mattighofen. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs. The German Government, having been informed by the Registrar of their right to intervene, did not avail themselves of that right (Article 36 of the Convention). 3. The applicant alleged a violation of his right not to be tried or punished twice. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. 6. By a decision of 10 May 2001 the Court declared the application admissible. 7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section 8. The applicant filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1970 and lives in St. Peter am Hart. 10. On 9 July 1995 the applicant was involved in a road traffic accident in which his passenger was slightly injured. 11. On 25 September 1995 the Braunau District Administrative Authority (Bezirkshauptmannschaft) ordered the applicant to pay a fine of 10,000 Austrian schillings (ATS), with nine days’ imprisonment in default, for driving under the influence of drink, contrary to sections 5 (1) and 99 (1) (a) of the Road Traffic Act 1960 (Straßenverkehrsordnung). The applicant did not appeal. 12. Meanwhile, on 8 August 1995, a criminal information was laid against him. 13. On 7 January 1997 the Grieskirchen District Court (Bezirksgericht) convicted the applicant under Article 88 §§ 1 and 3 of the Criminal Code (Strafgesetzbuch) of causing injury by negligence, with the additional element of Article 81 § 2, and sentenced him to pay a fine of ATS 8,000 with twenty days’ imprisonment in default. 14. On 18 June 1997 the Wels Regional Court (Landesgericht) dismissed the applicant’s appeal. The Regional Court noted that the European Court of Human Rights had meanwhile found that the Austrian reservation in respect of Article 4 of Protocol No. 7 was invalid (see the Gradinger v. Austria judgment of 23 October 1995, Series A no. 328-C, pp. 64-65, §§ 49-51). However, the judgment was not directly applicable and, therefore, it had to be assumed that double punishment was still lawful under domestic law, if the courts decided after the administrative authorities. In addition it noted that, following a judgment of the Constitutional Court changing the subsidiarity provisions in section 99 (6) (c) of the Road Traffic Act, the administrative offence of drunken driving was subsidiary to an offence under the Criminal Code committed with the additional element of Article 81 § 2. This change of law was however not applicable to the case in issue. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Road Traffic Act 15. Section 5 (1) of the Road Traffic Act 1960 provides that it is an offence for a person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively. 16. Section 99 of the 1960 Act, so far as relevant, provided at the material time, that: “(1) It shall be an administrative offence (Verwaltungsubertretung), punishable with a fine of not less than ATS 8,000 and not more than ATS 50,000 or, in default of payment with one to six weeks’ imprisonment, for any person: (a) to drive a vehicle when under the influence of drink ... (6) An administrative offence is not committed where: ... (c) facts constituting an offence under sub-sections (2), (2a), (2b), (3) or (4) also constitute an offence falling within the jurisdiction of the [ordinary] courts ... .” 17. In its judgment of 5 December 1996 the Constitutional Court had to examine the constitutionality of section 99 subsection (6)(c) of the Road Traffic Act, by virtue of which the administrative offence of driving under the influence of drink was not subsidiary to an offence falling within the jurisdiction of the courts. The Constitutional Court noted that that it was not contrary to Article 4 of Protocol No. 7 if a single act constituted more than one offence. This was a feature common to the criminal law of many European countries. However, it was also accepted in criminal law doctrine that sometimes a single act only appeared to constitute more than one offence, whereas interpretation showed that one offence entirely covered the wrong contained in the other so that there was no need for further punishment. Thus, Article 4 of Protocol No. 7 prohibited the trial and punishment of someone for different offences if interpretation showed that one excluded the application of the other. Where, as in the present case, the law explicitly provided that one offence was not subsidiary to another, it had to be guided by Article 4 of Protocol No. 7. The Court’s Gradinger judgment of 23 October 1995 had shown that there was a breach of this Article if an essential aspect of an offence, which had already been tried by the courts, was tried again by the administrative authorities. Section 99 subsections (1)(a) and (6)(c) of the Road Traffic Act, taken together, meant that the criminal administrative offence of drunken driving could be prosecuted even when an offence falling within the competence of the normal criminal courts was also apparent. According to the criminal courts’ constant case-law under Article 81 § 2 of the Criminal Code (cited below), drunken driving was also an essential aspect of certain offences tried by these courts. Insofar as section 99 (6)(c) of the Road Traffic Act limited the subsidiarity of administrative offences to those enumerated in subsections (2) to (4) of section 99, thus excluding subsidiarity for the offence of drunken driving contained in section 99 (1)(a), it violated Article 4 of Protocol No. 7. 18. Meanwhile, section 99 (6)(c) of the Road Traffic Act has been amended. It now provides that an administrative offence is not committed where facts constituting an offence under the Road Traffic Act also constitute an offence falling within the jurisdiction of the ordinary courts. B. The Criminal Code 19. By Article 88 § 1 of the Criminal Code, it is an offence, punishable by up to three months’ imprisonment or a fine of up to one-hundred and eighty day-rates, to cause injury by negligence. By virtue of Article 88 § 3, where the special circumstances of Article 81 § 2 apply, the maximum possible sentence is increased from three months’ to six months’ imprisonment or a fine of up to three-hundred and sixty day-rates. 20. Article 81 § 2 applies where a person commits the offence “after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol, but not to an extent which excludes his responsibility, notwithstanding that he has foreseen or could have foreseen that he would shortly have to engage in an activity likely to pose ... a danger to the lives ... of others if performed in that state”. By virtue of an irrebuttable presumption applied by the criminal courts, a driver with a blood alcohol level of 0.8 grams per litre or higher is deemed to be “intoxicated” for the purposes of Article 81 § 2. THE LAW I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7 TO THE CONVENTION 21. The applicant alleged a violation of Article 4 of Protocol No. 7 which, so far as relevant, provides as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.” The applicant contended that he was punished twice for driving under the influence of drink, first by the District Administrative Authority under sections 5 (1) and 99 (1)(a) of the Road Traffic Act and, secondly, by the District Court, which convicted him under Article 88 §§ 1 and 3 of the Criminal Code finding that the special circumstance of Article 81 § 2 applied. The applicant maintained that the present case was not comparable to the Oliveira v. Switzerland case (judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V), but resembled the Gradinger v. Austria case (cited above), in which the Court had found a violation of Article 4 of Protocol No. 7. 22. The Government asserted that the present case was comparable to the Oliveira case, as it concerned a typical example of a single act constituting various offences, i.e. a case where one criminal act constitutes two separate offences, which did not infringe Article 4 of Protocol No. 7. 23. The Court recalls that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (see the Gradinger judgment, cited above, p. 65, § 53). 24. The Court further recalls that it has dealt on various occasions with cases where two convictions arose out of the same set of facts (see the Gradinger judgment and the Oliveira judgment, both cited above, as well as Ponsetti and Chesnel v. France (dec.), nos. 36855/97 and 41731/98, ECHR 1999-VI and Franz Fischer v. Austria, no. 37950/97, 29.05.2001). 25. In the most recent of these cases, the Franz Fischer v. Austria judgment (op. cit. § 25) the Court held as follows: “The Court observes that the wording of Article 4 of Protocol No. 7 does not refer to “the same offence” but rather to trial and punishment “again” for an offence for which the applicant has already been finally acquitted or convicted. Thus, while it is true that the mere fact that a single act constitutes more than one offence is not contrary to this Article, the Court must not limit itself to finding that an applicant was, on the basis of one act, tried or punished for nominally different offences. The Court, like the Austrian Constitutional Court, notes that there are cases where one act, at first sight, appears to constitute more than one offence, whereas a closer examination shows that only one offence should be prosecuted because it encompasses all the wrongs contained in the others (...). An obvious example would be an act which constitutes two offences, one of which contains precisely the same elements as the other plus an additional one. There may be other cases where the offences only slightly overlap. Thus, where different offences based on one act are prosecuted consecutively, one after the final decision of the other, the Court has to examine whether or not such offences have the same essential elements.” 26. The Franz Fischer case is similar to the present one, as it related to the applicant’s conviction by the criminal courts of causing death by negligence under the special circumstance of Article 81 § 2 of the Criminal Code following a conviction by the administrative authority under sections 5 (1) and 99 (1)(a) of the Road Traffic Act for driving under the influence of drink. 27. In its judgment in that case, the Court, on the basis of the above quoted considerations, found that the Franz Fischer case had to be distinguished from the Oliveira v. Switzerland case but was similar to the Gradinger v. Austria case and concluded that Article 4 of Protocol No. 7 had been violated. 28. Having regard to these circumstances and noting that the parties have not advanced any new argument, the Court sees nothing to distinguish the present case from the Franz Fischer case. It therefore concludes that there has been a violation of Article 4 of Protocol No. 7. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 30. The applicant requested ATS 8,000, that is 581.38 euro (EUR) as compensation for the fine imposed by the criminal courts. Further, he requested ATS 30,000 or EUR 2,180.19 for non-pecuniary damage. 31. The Government did not comment. 32. As to pecuniary damage, the Court finds that there is no causal link between the breach of which the complaint is made and the alleged damage; it is impossible to speculate as to what the outcome of the proceedings would have been if they had satisfied the requirements of Article 4 of Protocol No. 7, that is to say what sanction would have been imposed on the applicant if the criminal courts had not applied the special circumstance of Article 81 § 2 of the Criminal Code (see Franz Fischer v. Austria, cited above, § 36). Therefore, the Court makes no award under this head. 33. Moreover, the Court having regard to its case-law in comparable cases (Franz Fischer v. Austria, ibid.), considers that the finding of a violation constitutes in itself sufficient just satisfaction as regards any non-pecuniary damage the applicant may have sustained. B. Costs and expenses 34. The applicant requested ATS 47,334.84 or EUR 3,439.36 for costs and expenses incurred in the domestic proceedings and ATS 40,455.28 or EUR 2,940 for costs and expenses incurred in the Convention proceedings. 35. The Government did not comment. 36. The Court recalls that, according to its case-law, it has to consider whether the costs and expenses were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see as a recent authority, Jerusalem v. Austria, no. 26958/95, § 57, to be published in ECHR 2001). 37. As to the costs of the domestic proceedings the Court notes that only the costs and expenses incurred in the appeal proceedings before the Regional Court which amount to ATS 15,280.56 or EUR 1,110.48 were incurred to prevent or redress the breach of the Convention found. As to the Convention proceedings the Court finds the amount claimed by the applicant reasonable and therefore allows it in full. 38. Thus, the Court awards a total amount of EUR 4,050.48 for costs and expenses. C. Default interest 39. According to the information available to the Court, the statutory rate of interest applicable in Austria at the date of adoption of the present judgment is 4% per annum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. that there has been a violation of Article 4 of Protocol No. 7 to the Convention; 2. that this finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage the applicant may have sustained; 3. (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 4,050.48 (four thousand and fifty euros and 48 cents) for costs and expenses; (b) that simple interest at an annual rate of 4% shall be payable from the expiry of the above-mentioned three months until settlement; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 June 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. NielsenC.L. Rozakis Deputy RegistrarPresident

THE VICE PRESIDENT: We shall now give judgment in two conjoined applications for leave to appeal against conviction submitted by JP and Lubemba. They have been referred to the court by the Registrar to be heard together because they each raise the same issue, namely what measures a trial judge may legitimately take to protect a vulnerable witness, without impacting adversely on the right of an accused to a fair trial. In addition to the Contempt of Court Act order above, the provisions of the Sexual Offences (Amendment) Act 1992 apply to both applications. Where a sexual offence has been committed against a person, no matter relating to that person shall be included in any publication that is likely to lead members of the public to identify that person as the victim of the offence during their lifetime. This prohibition applies unless waived or lifted; it has not been waived or lifted. In the circumstances an order under section 39 of the Children and Young Person's Act 1933, the provisions of which are also engaged, is unnecessary. The application in JP The background The applicant JP was convicted of three counts of sexual assault of a child on 2nd May 2014 before His Honour Judge Huw Davies QC. He was sentenced to a total of three years. The child complainant was eight years old and a friend of the applicant's step-son. She became a regular visitor to the applicant's home during 2013. On New Year's Eve 2013 the applicant walked her home from a party. When they arrived at her house the applicant's behaviour was considered strange by the child's mother and step-father. The applicant asked to see the complainant's newly decorated bedroom and went upstairs with her. Shortly afterwards they were followed by the complainant's step-father. He heard the applicant tell the complainant to give him a kiss. His step-daughter was lying on the bed. She was on her front with her face in her hands. The applicant was sitting on the bed with his hands on her hips, trying to roll her over. The complainant tried to push his arm away. On seeing the step-father, the applicant fell to the floor, saying, "Oh, you've got me" as if the complainant had just got the better of him in a play fight. The complainant ran downstairs. That night the complainant told her mother that the applicant attempted to kiss her on the mouth. After further questioning, she claimed that on earlier occasions he had taken her hand and put it on his penis over his trousers and he had put his hands down her knickers and touched her vagina. She said she had said nothing before because of his threats. The mother, enraged, went round to the applicant's house and assaulted him. On 1st January 2014 both the applicant and the complainant's mother contacted the police: the applicant reported the physical assault; the complainant's mother reported the sexual assault of her child. The applicant was arrested and interviewed. He denied any improper behaviour claiming innocent physical contact had been misinterpreted. At the plea and case management hearing a week before trial the Recorder of Cardiff gave special measures directions. The child's video interview, in which she gave a clear and concise account, was to be played as her evidence-in-chief and she was to be cross-examined by defence counsel, Mr Bennett, using the live link. He undertook to limit his questioning and to conduct his cross-examination in accordance with the Advocate's Gateway Toolkit. All parties agreed that the complainant, described as an intelligent and capable witness, was willing and able to attend court to be examined and that the services of an intermediary were not required. On 28th April 2014 the complainant attended court to be cross-examined over the live link. Prosecuting counsel, then Mr Elias, went to see her in the child witness waiting room. She was with her mother and step-father. He then took defence counsel with him to introduce him to the child. Both counsel felt she was relaxed and content. Neither she nor her parents expressed any concern about the forthcoming questioning. The transcript suggests that at this stage the judge also went to see her. However, Mr Bennett has informed us he had no knowledge of this. The complainant was then shown her video interview in the presence of an usher and a representative from Witness Care. Given the timing of events and the fast tracking of the trial, it had not been possible to show her the interview before. The judge expressed concern about the timing of this. On advising her that the barristers would ask her questions, the complainant confirmed that she was "perfectly willing for this to happen". After seeing her video interview the complainant received another visit from the judge, again without counsel. The judge returned to court and announced, with no warning, that the complainant was "not even managing to communicate in monosyllables on ... neutral subjects". In his opinion the child could not participate in cross-examination, however sensitively done. Both counsel protested that this was not their understanding of the situation. Mr Bennett referred the judge to the applicant's right to a fair trial under Article 6 of the European Convention. Supported by Mr Elias, he urged the judge to let him at least try and ask a few questions to see whether the witness could communicate. Unfortunately, perhaps because they were both somewhat taken aback by events, neither of them referred the judge to the law (other than Article 6) and in particular the relevant statutory provisions that permit the playing of a recorded interview as the child's evidence in chief. The judge would not be moved. He informed defence counsel he would not permit any questioning of the child, but indicated that the defence would be allowed the rest of the day to prepare a document to be placed before the jury, containing any points the defence would have wished to have made to the witness. We have a copy of that document. The trial proceeded. The video interview was played as the only evidence of the child. Her parents and the applicant gave evidence. In his summing-up the judge gave the jury the standard direction on the use of video recorded interviews. He explained her absence from the trial in this way at page 6, letter E: "It was my assessment that [the complainant] would not have been able to deal with further questions from people like us that would have added anything useful to the material with which you have to work. In such circumstances there is a potential for imbalance in the evidence, to which the jury needs to be alert, and if you think there was any disadvantage to the defence from [the complainant's] inability to participate in further questioning, then you should make an appropriate allowance for that in your deliberations. In addition, you should consider carefully the points which are set out in the document which the defence put before you on the morning after [the complainant] has given evidence." The jury requested to see the video interview again during their retirement. The judge directed the jury in these terms at page 35, letter F: "... and as I shall remind you tomorrow, it is very important, since you will be seeing part of the evidence for the prosecution again, that you should not allow the replaying of the video recording to give an undue significance to that part of the evidence. It will be very important that you keep it in proportion, given that you will be having the opportunity to view a second time and to hear a second time one of the witnesses in the case. So what I will need you to understand is that you should therefore guard very carefully against giving disproportionate, in other words unfair weight, to the evidence of a witness whom you have had the opportunity to hear twice, in contrast to any other witness in the case. In anticipation of your seeing [the complainant's] evidence again, I will call your attention now to the document in which the defence set out material that they would have raised, if it had been possible were this, for example, a case in which there had been no such problem; the material that they would have addressed one way or another in the course of cross-examination. So bear that carefully in mind after tomorrow when you have seen [the complainant's] video replayed." The ground of appeal In JP there is one ground of appeal: that the judge erred in preventing cross-examination of the complainant so that the applicant did not have a fair trial and his convictions are unsafe. Mr Bennett began by emphasising that the complainant was the Crown's main witness. Without her there was little or no case against the applicant. It was only just, therefore, for the defence to be given a reasonable opportunity to test what she said. Mr Bennett knew of no reason for the judge to intervene and rule in the way that he did. Apart from her age, the complainant showed no other vulnerability and appeared well able to cope with questioning. Even if the judge's concerns were justified, Mr Bennett argued that he should have been allowed to try test her evidence in some way. The document that the defence was allowed to place before the jury did not undo the prejudice caused by the judge's conduct. Furthermore, additional prejudice was caused when the jury saw a second screening of the complainant's video interview in their retirement. Respondent's response Mr Douglas-Jones, who now represents the prosecution, conceded that the judge's ruling was wrong. There was no need to prevent cross-examination. He also acknowledged a number of procedural errors. Nevertheless, he sought valiantly to persuade us that the convictions are safe. The first procedural error conceded was that the judge and the parties failed to consider the provisions of section 27 of the Youth Justice and Criminal Evidence Act 1999 ("the Act"), whereby the video interview of the complainant was admissible as evidence-in-chief. In particular the judge failed to consider the provisions of subsection (5) which provides (5) Where a recording is admitted under this section - (a) the witness must be called by the party tendering it in evidence, unless - (i) a special measures direction provides for the witness's evidence on cross-examination to be given otherwise than by testimony in court, or (ii) the parties to the proceedings have agreed as mentioned in subsection (4)(a)(ii); ... Neither paragraphs (i) or (ii) above applied. Thus the judge was obliged to consider whether the recording was still admissible in the light of a ruling that prevented the prosecution from calling the witness. The second procedural error conceded was that the judge and the parties failed to consider the provisions of sections 53 and 54 of the Act relating to whether the witness was competent to answer questions. Section 53, where relevant, provides: "(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence. ... (3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to - (a) understand questions put to him as a witness, and (b) give answers to them which can be understood." The complainant was not therefore deemed incompetent because of her age. She could only be assessed as incompetent if the provisions of subsection 3 (a) and (b) applied. The judge did not suggest that they did, and if so what effect that would have on the admissibility of the video. Further if the judge was considering the competence of the witness, the provisions of section 54 were relevant. The section provides: "(1) Any question whether a witness in criminal proceedings is competent to give evidence in the proceedings, whether raised - (a) by a party to the proceedings, or (b) by the court of its own motion, shall be determined by the court in accordance with this section. (2) It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence in the proceedings. (3) In determining the question mentioned in subsection (1) the court shall treat the witness as having the benefit of any directions under section 19 [special measures] which the court has given, or proposes to give, in relation to the witness. (4) Any proceedings held for the determination of the question shall take place in the absence of the jury (if there is one). (5) Expert evidence may be received on the question. (6) Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties." The judge gave no consideration to the witness having the benefit of additional special measures such as an intermediary as he was bound to do. He did not call for expert evidence and he questioned the child for the purposes of establishing if she could give evidence on his own. Notwithstanding these significant failings, Mr Douglas-Jones sought to persuade us that the judge remedied the potential for unfairness by allowing the defence the unusual advantage of placing a document before the jury. It contained all the matters upon which the defence would have relied in testing the complainant's evidence. Thereafter the judge gave careful and repeated directions to the jury. Mr Douglas-Jones also observed that there was ample scope to explore the complainant's credibility and reliability in cross-examination of her step-father and her mother. Finally, he relied on the strength of the prosecution case, in particular the fact that the complainant's evidence on count 3 was corroborated by her step-father. Lubemba The facts of the application in Lubemba can be more shortly stated. He was convicted on 7th March 2014 at the Wood Green Crown Court before His Honour Judge Carr of two counts of rape of a child by a majority of ten to two on count 3 and unanimously on count 4. He was later sentenced to 15 years' imprisonment. The complainant, a ten-year-old girl, used to visit the applicant and his partner in the school holidays. During the weekend of 7th September 2013 the complainant told her mother of alleged abuse during the previous summer holidays. The police were informed. The complainant was medically examined but the findings were neutral. In her Achieving Best Evidence interview she claimed she had been raped ten times in July and August 2013. Her allegations were reflected in a four-count indictment, the first two of which were multiple offending counts (later withdrawn at the instigation of the judge) and the second two were specific counts of vaginal and anal rape. In relation to the vaginal rape, the complainant said she had been watching television with her nephew when the applicant told her to follow him upstairs. She refused but he grabbed her hand and pulled her. She was carrying her nephew. She kicked the applicant in the back and tried to throw a shoe at him. He took her to the main bedroom and put her nephew on a mattress beside the bed. He then removed his clothes and hers. He gave her nephew a sweet to stop him crying. He used both hands to hold down her shoulders, forced her legs apart and inserted his penis in her vagina. He left and had a shower. She got up and dressed, took her nephew downstairs and cried. He threatened to kill her if she told anybody what he had done. She described in very similar terms the final occasion of rape. The only significant difference in her account was that on this occasion it was anal, not vaginal, rape that she alleged. The applicant was arrested on 7th and interviewed on 8th September 2013. He denied the allegations claiming that they had been fabricated. The complainant's video was played to the jury and the judge allowed defence counsel, Ms Akuwudike, to cross-examine the witness. However, he imposed certain restrictions upon her. He limited her cross-examination to 45 minutes and he interrupted when he felt her questions were unclear or inappropriate. Following the cross-examination, and in the absence of the jury, Ms Akuwudike expressed her concern that she had not been permitted to put her case to the complainant. Those concerns were rejected by the judge. The grounds of appeal Ms Akuwudike reminded the court, as Mr Bennett had done in JP, that the complainant was the only effective witness in the prosecution case against her lay client. In Lubemba there was no suggestion of corroboration from any other witnesses. Ms Akuwudike has four main criticisms about the restrictions placed upon her. First, given the nature of the case against the applicant, and the number of alleged acts of rape, she insists that she should have been allowed more than 45 minutes to cross-examine the complainant. Second, she complains that the judge prevented her from putting her lay client's case to the complainant, directing her on a number of occasions "don't put your case". Third, she alleges that the judge interrupted her cross-examination, thereby disrupting the flow of her questioning, and undermining her in the presence of the jury. Fourth, a number of judge's comments such as "she is only ten years old" she described as inappropriate. They may have alienated the jury from her and the applicant and attracted the sympathy of the jury towards the complainant. She invited us to note that the complainant in this case was not an unusually vulnerable witness. She was vulnerable solely be reason of her age; she was otherwise a perfectly competent and capable child. Ms Akuwudike has taken us through the judge's interruptions, which she submits were unnecessary and excessive and which prevented her putting her case in the time available. When pressed as to what matter she had been unable to put, she informed us of only one: a crime report in which the child was recorded as complaining that the applicant had offered to buy her gifts and had not supplied them. This was said to be relevant in establishing a motive for the child to lie. Albeit the judge did not say anything to bring her cross-examination to an end, she claimed she did not have the opportunity to ask about it because she was conscious of what she called his "clock watching". Respondent's response Ms Milsom for the Crown reminded the court that the judge explained very carefully to the jury that he had prevented certain aspects of defence counsel's cross-examination in order to minimise the distress and discomfort to a young witness and to improve the quality of her evidence. She maintains he only interrupted the cross-examination in order to clarify and assist the complainant understand the questions, in line with relevant authorities. He interrupted eleven times at most. She rejected the suggestion that the time limit was unfair given the child's age. She observed that there was, in truth, one narrow and straightforward issue namely: was the complainant telling the truth. Testing this issue did not require lengthy questioning. The judge repeatedly gave fair and sensible directions about the age of the complainant, the difficulties faced by all parties and the need to examine the facts without sympathy or emotion. The treatment of vulnerable witnesses The treatment of vulnerable witnesses has changed considerably in the last few years. In R v Barker [2010] EWCA Crim 4, a specially constituted court of the Court of Appeal Criminal Division, presided over by Lord Judge CJ, considered the circumstances in which very young children may give evidence. Having referred to section 53 of the Youth Justice and Criminal Evidence Act 1999, the court observed at paragraphs 38 to 43: "38. These statutory provisions are not limited to the evidence of children. They apply to individuals of unsound mind. They apply to the infirm. The question in each case is whether the individual witness, or, as in this case, the individual child, is competent to give evidence in the particular trial. The question is entirely witness or child specific. There are no presumptions or preconceptions. The witness need not understand the special importance that the truth should be told in court, and the witness need not understand every single question or give a readily understood answer to every question. Many competent adult witnesses would fail such a competency test. Dealing with it broadly and fairly, provided the witness can understand the questions put to him and can also provide understandable answers, he or she is competent. If the witness cannot understand the questions or his answers to questions which he understands cannot themselves be understood he is not. The questions come, of course, from both sides. If the child is called as a witness by the prosecution he or she must have the ability to understand the questions put to him by the defence as well as the prosecution and to provide answers to them which are understandable. The provisions of the statute are clear and unequivocal, and do not require reinterpretation. (R v MacPherson [2006] 1 CAR 30: R v Powell [2006] 1 CAR 31: R v M [2008] EWCA Crim 2751 and R v Malicki [2009] EWCA Crim 365.) 39. We should perhaps add that although the distinction is a fine one, whenever the competency question is addressed, what is required is not the exercise of a discretion but the making of a judgment, that is whether the witness fulfils the statutory criteria. In short, it is not open to the judge to create or impose some additional but non-statutory criteria based on the approach of earlier generations to the evidence of small children. In particular, although the chronological age of the child will inevitably help to inform the judicial decision about competency, in the end the decision is a decision about the individual child and his or her competence to give evidence in the particular trial. 40. We emphasise that in our collective experience the age of a witness is not determinative on his or her ability to give truthful and accurate evidence. Like adults some children will provide truthful and accurate testimony, and some will not. However children are not miniature adults, but children, and to be treated and judged for what they are, not what they will, in years ahead, grow to be. Therefore, although due allowance must be made in the trial process for the fact that they are children with, for example, a shorter attention span than most adults, none of the characteristics of childhood, and none of the special measures which apply to the evidence of children carry with them the implicit stigma that children should be deemed in advance to be somehow less reliable than adults. The purpose of the trial process is to identify the evidence which is reliable and that which is not, whether it comes from an adult or a child. If competent, as defined by the statutory criteria, in the context of credibility in the forensic process, the child witness starts off on the basis of equality with every other witness. In trial by jury, his or her credibility is to be assessed by the jury, taking into account every specific personal characteristic which may bear on the issue of credibility, along with the rest of the available evidence. 41. The judge determines the competency question, by distinguishing carefully between the issues of competence and credibility. At the stage when the competency question is determined the judge is not deciding whether a witness is or will be telling the truth and giving accurate evidence. Provided the witness is competent, the weight to be attached to the evidence is for the jury. 42. The trial process must, of course, and increasingly has, catered for the needs of child witnesses, as indeed it has increasingly catered for the use of adult witnesses whose evidence in former years would not have been heard, by, for example, the now well understood and valuable use of intermediaries. In short, the competency test is not failed because the forensic techniques of the advocate (in particular in relation to cross-examination) or the processes of the court (for example, in relation to the patient expenditure of time) have to be adapted to enable the child to give the best evidence of which he or she is capable. At the same time the right of the defendant to a fair trial must be undiminished. When the issue is whether the child is lying or mistaken in claiming that the defendant behaved indecently towards him or her, it should not be over-problematic for the advocate to formulate short, simple questions which put the essential elements of the defendant's case to the witness, and fully to ventilate before the jury the areas of evidence which bear on the child's credibility. Aspects of evidence which undermine or are believed to undermine the child's credibility must, of course, be revealed to the jury, but it is not necessarily appropriate for them to form the subject matter of detailed cross-examination of the child and the advocate may have to forego much of the kind of contemporary cross-examination which consists of no more than comment on matters which will be before the jury in any event from different sources. Notwithstanding some of the difficulties, when all is said and done, the witness whose cross-examination is in contemplation is a child, sometimes very young, and it should not take very lengthy cross-examination to demonstrate, when it is the case, that the child may indeed be fabricating, or fantasising, or imagining, or reciting a well rehearsed untruthful script, learned by rote, or simply just suggestible, or contaminated by or in collusion with others to make false allegations, or making assertions in language which is beyond his or her level of comprehension, and therefore likely to be derived from another source. Comment on the evidence, including comment on evidence which may bear adversely on the credibility of the child, should be addressed after the child has finished giving evidence. 43. The competency test may be re-analysed at the end of the child's evidence. This extra statutory jurisdiction is a judicial creation, clearly established in a number of decisions of this court (R v MacPherson: R v Powell: R v M: R v Malicki; see to the contrary effect DPP v R [2007] EWHC 1842 (Admin)), where it was emphasised that an asserted loss of memory by a witness does not necessarily justify the conclusion that the appropriate level of understanding is absent). If we were inclined to do so, and we are not, it would be too late to question this jurisdiction. This second test should be viewed as an element in the defendant's entitlement to a fair trial, at which he must be, and must have been, provided with a reasonable opportunity to challenge the allegations against him, a valuable adjunct to the process, just because it provides an additional safeguard for the defendant. If the child witness has been unable to provide intelligible answers to questions in cross-examination (as in Powell) or a meaningful cross-examination was impossible (as in Malicki) the first competency decision will not have produced a fair trial, and in that event, the evidence admitted on the basis of a competency decision which turned out to be wrong could reasonably be excluded under section 78 of the 1984 Act. The second test should be seen in that context, but, and it is an important but, the judge is not addressing credibility questions at that stage of the process any more than he was when conducting the first competency test." In R v Wills [2011] EWCA Crim 1938, [2012] 1 Cr App R 2, the court endorsed the Barker approach and the approach of the Advocacy Training Council (the "ATC") as set out in their report entitled "Raising the Bar: the Handling of Vulnerable Witnesses, Victims and Defendants in Court". Experts in the field responded to the ATC's recommendations and produced Toolkits on how to treat vulnerable witnesses fairly and to get the best from them, without undermining the accused's right to a fair trial. The Toolkits may be downloaded at no cost from the Advocates Gateway Website. They provide excellent practical guides and are to be commended. They have been endorsed by the Lord Chief Justice in the Criminal Practice Directions Amendment No2 as best practice. The Directions include at 3E.4 the following: "All witnesses, including the defendant and defence witnesses, should be enabled to give the best evidence they can. In relation to young and/or vulnerable people, this may mean departing radically from traditional cross-examination. The form and extent of appropriate cross-examination will vary from case to case. For adult non vulnerable witnesses an advocate will usually put his case so that the witness will have the opportunity of commenting upon it and/or answering it. When the witness is young or otherwise vulnerable, the court may dispense with the normal practice and impose restrictions on the advocate 'putting his case' where there is a risk of a young or otherwise vulnerable witness failing to understand, becoming distressed or acquiescing to leading questions. Where limitations on questioning are necessary and appropriate, they must be clearly defined. The judge has a duty to ensure that they are complied with and should explain them to the jury and the reasons for them. If the advocate fails to comply with the limitations, the judge should give relevant directions to the jury when that occurs and prevent further questioning that does not comply with the ground rules settled upon in advance. Instead of commenting on inconsistencies during cross-examination, following discussion between the judge and the advocates, the advocate or judge may point out important inconsistencies after (instead of during) the witness's evidence. The judge should also remind the jury of these during summing up. The judge should be alert to alleged inconsistencies that are not in fact inconsistent, or are trivial." Further, considerable progress has been made in terms of the provision of training for judges and advocates. The aim of the training, which all judges who try cases involving vulnerable witness are expected to undergo, echoes the aim of the Toolkits. The court is required to take every reasonable step to encourage and facilitate the attendance of vulnerable witnesses and their participation in the trial process. To that end, judges are taught, in accordance with the Criminal Practice Directions, that it is best practice to hold hearings in advance of the trial to ensure the smooth running of the trial, to give any special measures directions and to set the ground rules for the treatment of a vulnerable witness. We would expect a ground rules hearing in every case involving a vulnerable witness, save in very exceptional circumstances. If there are any doubts on how to proceed, guidance should be sought from those who have the responsibility for looking after the witness and or an expert. In general, experts recommend that the trial judge should introduce him or herself to the witness in person before any questioning, preferably in the presence of the parties. This seems to us to be an entirely reasonable step to take to put the witness at their ease where possible. The ground rules hearing should cover, amongst other matters, the general care of the witness, if, when and where the witness is to be shown their video interview, when, where and how the parties (and the judge if identified) intend to introduce themselves to the witness, the length of questioning and frequency of breaks and the nature of the questions to be asked. So as to avoid any unfortunate misunderstanding at trial, it would be an entirely reasonable step for a judge at the ground rules hearing to invite defence advocates to reduce their questions to writing in advance. Considerable emphasis is also placed in judicial training on the role of the judge at trial. The trial judge is responsible for controlling questioning and ensuring that vulnerable witnesses and defendants are enabled to give the best evidence they can. The judge has a duty to intervene, therefore, if an advocate's questioning is confusing or inappropriate. Professional organisations such as the Inns of Court provide training and guidance along similar lines for advocates. It is now generally accepted that if justice is to be done to the vulnerable witness and also to the accused, a radical departure from the traditional style of advocacy will be necessary. Advocates must adapt to the witness, not the other way round. They cannot insist upon any supposed right "to put one's case" or previous inconsistent statements to a vulnerable witness. If there is a right to "put one's case" (about which we have our doubts) it must be modified for young or vulnerable witnesses. It is perfectly possible to ensure the jury are made aware of the defence case and of significant inconsistencies without intimidation or distressing a witness (see for example paragraph 3E.4 of the Criminal Practice Directions). With those observations in mind, we turn to our conclusions. Conclusions JP As far as the application in JP is concerned, we unhesitatingly give leave. With respect to the judge, who no doubt had the child's best interests at heart, we simply do not understand what he was saying as a matter of law, why he concluded the child could not be cross examined and why he did not allow defence counsel to try a few sensitively phrased questions. It is not clear to us whether he had concluded the child was not competent to give evidence, not fit to give evidence, or it would not be good for her to give evidence. These difficulties might not have arisen had it been arranged for him to introduce himself to the witness at the same time as the advocates did. The judge's approach was wrong in a number of respects. If his visit was designed to assess her competence, he should have taken the parties with him or used the live link in their presence. He should not have questioned her alone (See section 54 (6) of the Youth Justice and Criminal Evidence Act 1999). If his visit was merely designed to introduce himself properly to her and he unexpectedly began to question her ability to participate, he should have informed the parties of his concerns and sought their submissions, before making a ruling. He should have considered whether any other special measures such as the services of an intermediary might benefit the witness (section 54 (3)). Furthermore, he could have considered calling for an expert to assist him. If he had then concluded, on a sound basis, that the witness could not be cross-examined, he should have re-visited the provisions of section 27 of the Act and the decision to allow the video recording to be played. He should have considered whether or not it was admissible where the prosecution could not tender the witness as required by section 27 (5) of the Act. Finally, and most importantly, the judge should have openly and clearly given far greater consideration to the impact upon the fairness of the trial of prohibiting the defence from testing the evidence of the main prosecution witness. In all those circumstances we feel that we have no choice but to allow the appeal and to quash the conviction. We will hear submissions in a moment as to whether or not a re-trial is sought. Lubemba In Lubemba, on the other hand, Judge Carr did not go too far in trying to protect a vulnerable witness. As we have already explained, a trial judge is not only entitled, he is duty bound to control the questioning of a witness. He is not obliged to allow a defence advocate to put their case. He is entitled to and should set reasonable time limits and to interrupt where he considers questioning is inappropriate. We have no doubt Ms Akuwudike was doing her best to examine the child in short, non-confrontational questions; she was far from aggressive. But, as she herself conceded, she fell into the trap of asking questions which were more suited to an adult witness than a child. Many of her questions were what are called "tag" questions which children find confusing, some of her questions were simply too long and some too complex. In our view, the judge was bound to intervene when he did. The interruptions were not excessive, they were justified, and they did not prevent counsel from testing the evidence. We note that Ms Akuwudike sat down stating that she had no further questions before the judge had a chance to impose any kind of guillotine upon her. This does not surprise us. As Ms Milsom observed, the issues were extremely straightforward and Ms Akuwudike had ample time to put what she needed to put in the time allowed. If any matters remained that the defence considered important, such as the crime report, it would have been open to Ms Akuwudike to ask for a little more time and or she could have invited the prosecution to make admissions. We are satisfied, therefore, that the judge exercised his case management powers entirely reasonably and did nothing to undermine the fairness of the trial. We refuse leave to appeal against conviction. THE VICE PRESIDENT: As far as Lubemba is concerned, Ms Akuwudike, I do not think anything follows from our decision so thank you very much, you may leave if you wish. As far as JP is concerned, Mr Douglas-Jones? MR DOUGLAS-JONES: My Lady, inevitably the Crown would seek a re-trial in a case of this nature, given the seriousness of the allegations and the circumstances in which they arose. A three year sentence resulted from the conviction in this case in total and the appellant has served five months merely. What I would respectfully suggest is this. In circumstances where this court has taken steps to ensure that this case has been heard expeditiously, I wonder if your Ladyship would direct that the re-trial should take place before the end of this term. THE VICE PRESIDENT: We can certainly direct it is fit for expedition, if we order a retrial, but the Presiding Judges of the Welsh Circuit might have something to say if we directed them to get it on before the end of term. I know they would do everything possible. We could say that it is a case that should be expedited if at all possible. I have not asked for any submissions from you, Mr Bennett, but I do not think you can really argue against a re-trial, can you? MR BENNETT: It is a matter for the Crown. There should be some time, I think, for the family of the child to be spoken to. They may have some influence on whether it is necessarily in her good, and therefore the public good, to re-hear the matter again. THE VICE PRESIDENT: I think we can take it that that is what the Crown have already done. MR BENNETT: One matter I sought to raise was the appellant's bail position. He had in fact been on conditional bail. THE VICE PRESIDENT: Can we come to that in a second. We allow the appeal. We quash the conviction. There will be a re-trial on counts 1, 2 and 3. We direct that a fresh indictment be served. We direct that the appellant, as he now is, be re-arraigned on the fresh indictment within two months. We also direct that, if possible, the re-trial should be expedited. Now, we come to the question of custody or bail. Yes, Mr Bennett. MR BENNETT: My Lady, the defendant has some dissimilar relatively minor convictions, I think there is a drink driving and there may be a matter of disorder as well, but certainly no previous sexual offending to his name. He was on bail entirely before the trial, entirely during the trial and in fact was only remanded at the very end after he was convicted. There was no indication at all from the Crown that he ever imposed a danger of committing offences whilst on conditional bail. He, of course, was the subject of conditions to keep away from and not approach or contact the named prosecution witnesses, and he was not allowed in fact to reside at his own family home, which in fact was relatively close in terms of distance to that of the complainant. But I am bound to say in the circumstances I would ask the court to consider granting this man bail as before on the same conditions. THE VICE PRESIDENT: Thank you. Any observations from the Crown? MR DOUGLAS-JONES: My Lady, no. Plainly it is appropriate though that if he be re-admitted to bail, as he was before the trial, that those conditions should be reinstated. (The Bench conferred for a short time) - - - - - THE VICE PRESIDENT: Mr Bennett, Mr Douglas-Jones, we have concerns about where he would live if released on bail. There have already been unfortunate incidents and I suspect the decision of this court may not go down that well in certain quarters. We do not want any interference with witnesses or any trouble. How do we ensure there is no witness interference or any trouble if we were to grant bail? MR DOUGLAS-JONES: My Lady, my respectful suggestion would be that I take instructions from those instructing me in relation to what matters are on the central management system so that the conditions can be tailored precisely to those risks. THE VICE PRESIDENT: The conditions were not to contact the complainant or any other prosecution witness, not to enter any part of a dwelling where there is a young child. That is it. No condition of residence. For my part, I am not happy with that. MR DOUGLAS-JONES: No. My Lady, there are two options. One is that I be afforded, if you are prepared to allow it, time to take instructions. The other option is that he be remanded pro tem under paragraph 5 and the matter can be taken up by an application in the Crown Court. MR JUSTICE SWEENEY: Where is it proposed that he would reside? MR BENNETT: He has a number of relatives living in the area who are prepared to take him in. THE VICE PRESIDENT: Well, it is the area that I am worried about. MR BENNETT: It certainly is right that he should not go anywhere near the current address of the complainant and her family. One of the complicating factors that arose in the course of his bail position in the trial was that one of the children, not his natural child, living with him at his home address was the subject of some sort of guardianship order and they objected to him having access to that household after the allegations were levelled against him, so in fact the bail conditions had been tailored to prevent him having contact with any young child including his own or his own step children, so that in fact prevented him from going to live back at his former home address. So he was keeping out of the area altogether on the basis that he was not even entitled to go back to his own home address. THE VICE PRESIDENT: For my part, I would need a condition of residence, I would want to know where that residence was, I would want to know who lived in the household. There are a number of questions. You will not be able to persuade me on the information you have at the moment, so I think, unless my colleagues disagree, we should follow the course that Mr Douglas-Jones has proposed, and that is that you can make any bail application to the Crown Court. Our order will be that he is remanded in custody unless and until a Crown Court judge decides otherwise. We need to make sure that there is nothing reported until the conclusion of the re-trial which might prejudice it. We shall include in the perfected judgment the appropriate order. The venue for the re-trial will be determined by the presiding judge of the Wales Circuit. Applications for a representation order: Mr Bennett, apparently you have to make them to the Centralised Legal Aid Unit. The Registrar will tell you.