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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> S, R (on the application of) v YP School [2002] EWHC 2795 (Admin) (13 December 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/2795.html Cite as: [2002] EWHC 2795 (Admin)

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

		Royal Courts of Justice Strand London WC2
		13 December 2002

1. MR JUSTICE MAURICE KAY: The claimant, whom I shall refer to as "S", was born on 13 July 1986. He attended the defendant school as a secondary pupil until he was aged 16. In his final year circumstances arose in January 2002 which led to his being excluded from the school by the head teacher, and to that exclusion being confirmed by the Disciplinary Committee of the Governing Body. The event which gave rise to that exclusion concerned the disappearance of a guitar which belonged to the school music department. It disappeared on 22 January. On the 25 January, a Friday, the Head of Music reported that matter to Mr George, a deputy head. He proceeded to investigate the disappearance, having first advised the head teacher, Dr Davies, of the background.
2. It was brought to Mr George's attention by the Head of Music that there had been an occasion when S and the guitar had been in the same room at a time when three other boys, to whom I shall refer as "N", "A" and "D", were present. Mr George decided to interview the four boys. He initially found N, A and D, but at that time, S was not present in school. His interviews with N, A and D produced accounts to the effect that the three of them had been in a small room in block 8 playing with various musical instruments including the guitar; this was part of a music lesson. The boys told Mr George that S, who was a pupil in the year above the boys, had entered the room and taken an interest in the guitar. They said that S had said that he was going to take the guitar and had asked them as to which way they thought he could take it out of the school without being observed. The three boys indicated that they did not want to be involved. They told Mr George that they then saw S put the guitar in his bag and walk out. One of them said that he had seen S from the window walking in the direction of one of the dining halls and around the corner towards the front of the school. This would have taken him in a direction which leads out of the school without having to pass through the main entrance. At that stage, Mr George did not take written statements from the three boys. He made it clear that he would prefer it if the guitar would be returned.
3. Mr George then telephoned S's home and spoke to his mother. She indicated that she had not seen the guitar and doubted that S had taken it. Mr George said that he would seek to interview S on the next school day, that is the following Monday, and S's mother confirmed that he would be there at 9 o'clock for that purpose. She rang back a few minutes later to say that S had now returned home and was unwell. There was a telephone conversation between Mr George and S. In the course of it, S denied any knowledge of the theft, but he admitted being in the room in question during the course of 22 January. On the Monday morning, 28 January, S and his mother attended the school and Mr George conducted an interview. S denied any involvement in the taking of the guitar but admitted being in the room in question on 22 January and was able to give a detailed description of the guitar. He said that when he left the room the guitar was still there. There was some conversation between Mr George and S in which S referred to an identical guitar owned by a friend and indicated that he was saving to buy just such a guitar. Mr George observed that this represented an apparent change in position on the part of S because in the course of the telephone call on Friday, S had denied any knowledge of the guitar at all. There was some discussion about the relationship between S and the other three boys. S said that they were not friends but nor was there any suggestion that they had been involved in bullying him in any way.
4. During that afternoon, Mr George decided to get the four boys together to try to get to the bottom of the matter. That, Mr George says, represents his usual approach in such matters; that is, to interview the individuals separately and then to see them together. One of the boys was not available but S and the other two were. Mr George asked them to explain what had happened and what they knew. One of the other boys accused S of having stolen the guitar. S began to deny this. The two other boys stated that S had put the guitar in his bag and had then put a plastic bag on top to cover it. At this point, S admitted that he had done that because it had been raining. He went on to say, in answer to questions from Mr George, that he had decided to take the guitar so as to return it for safekeeping to the room of Mr Martin, the Head of Music. His room is in block 5.
5. S went on to say that having arrived at block 5 he took the guitar not into Mr Martin's room, but into the drama studio which was empty and where he left it on a chair. In his witness statement, Mr George states that by this time he had become very concerned at S's explanations because his story had changed again. S had not himself been involved in the music lesson, but had taken it upon himself to take charge of the guitar whilst the lesson was still in progress. He had not returned the guitar to the music room even though there was a teacher present in that room. He had indicated an intention to take the guitar to Mr Martin, but had walked past Mr Martin's room in order to get to the drama studio without taking the guitar into Mr Martin's room even though Mr Martin was in that room taking a lesson at the time. Also, he had professed concern for the safekeeping of the guitar but had, on his account, left it in an empty drama studio. Mr George told S that he was coming to the conclusion that S had stolen the guitar and, at that point, S broke down. The next day, S did not attend school and a message was received to the effect that he had glandular fever. He remained off school for the rest of that week. On 30 January, Mr George re-interviewed N, A and D, and this time obtained written statements from them. He was also informed that another pupil, "R", might have material information and so he spoke to R.
6. R's account was that he had been undertaking a science lesson in a different part of the school and he had seen S leaving block 8 and walking in the direction of one of the dining halls, carrying a bag from which R could see a guitar handle protruding with a plastic bag over its head. R made a written statement. Mr George reported all these matters to the head teacher. On 31 January, Mr George wrote to S's mother saying that he had concluded his investigation into the theft of the school guitar, and adding:

"On the balance of the evidence that I have, sourced from witness statements and interviews, I am forced to conclude that S has indeed taken the guitar from the school premises."

7. On 1 February, Mr George received a message that had come via an anonymous telephone call, to the effect that the caller had seen a guitar being handed over the back wall of the school on 22 January at approximately 3.45pm. The message was to the effect that the guitar had then been taken away by two people in a silver car and a partial registration number was given. After Mr George had sent the letter to S's mother on 31 January, he met with the head teacher and a fellow deputy head to discuss the matter. The outcome was that the head teacher decided to exclude S for a period of 10 days. That decision was communicated in a letter dated 12 February 2002, which stated that S had been excluded from 13 February until 6 March. That is a longer period than 10 days because there was an intervening half term. It represented 10 school days. The letter went on to say that S's exclusion "results from theft of a school guitar," and advised S's mother of the right to make representations to the Governing Body.
8. The head teacher also reported the matter to the police, but in the event, neither at that time nor more recently when the matter was reconsidered, were any criminal proceedings instituted against S. On 13 February, S's mother wrote to the school expressing complaints about a number of matters relating to these events. She raised the question of S having been assaulted by a number of boys on his way home from school on 12 February.
9. In due course S's mother consulted solicitors and on 19 March they wrote to Dr Davies, the head teacher, asserting that the exclusion was not properly processed and requesting copies of "all the records that you have in your possession that you believe entitles you to make such a serious allegation against our client". They gave 15 days for compliance with that request. On 22 March, Dr Davies replied. He stated that he had followed normal practice and that details of the investigation would be made available within the 15-day period, albeit relating that to school working days rather than a calendar period. He added that under prevailing procedures, the school were allowed up to 50 working days for the Governing Body to convene a Disciplinary Committee meeting, and that period would not expire until 17 May. In the event, a Disciplinary Committee was convened for 2 May.
10. On 23 April, Mr Lloyd sent to the solicitors a synopsis of the events which had led to S's exclusion. It is in the form of two pages of paragraphed, single spaced items setting out the sequence of events from the afternoon of 22 January until the return of S to school following the exclusion, that return having occurred on 14 March. On the same day the clerk to the Governing Body wrote to S's mother advising of the date and time of the Disciplinary Committee hearing, adding, "I shall be grateful if you would attend", and informing her that she could make written or oral representations and be accompanied by a friend or adviser if she so wished.
11. On 1 May, the solicitors wrote to Dr Davies enclosing "grounds of appeal" but stating that neither S, nor his mother, nor they, would be attending the appeal as "she believes the written appeal is sufficient". The grounds of appeal ran to some 6 pages in 12 numbered paragraphs. They took many procedural points about the way in which the matter had been investigated and decided. They included a denial of theft in a single sentence, "The allegation of theft is denied", but they did not contain any narrative account of the events of 22 January. Indeed, it is a striking feature of this case that neither then nor now has such a narrative account in the form of a positive case ever been advanced by or on behalf of S. The minutes of the meeting of 2 May record the lack of attendance of S and his mother. They refer to the letter, and by implication the grounds of appeal, sent by the solicitors. The case for exclusion was advanced to the committee by Mr Lloyd. The synopsis was read out. At an appropriate point, Dr Davies and his deputies left the room to enable the committee to discuss the evidence, and it is minuted that the committee resolved that:

"We have no alternative but to confirm the head teacher's decision to exclude S and that this was the appropriate action under the circumstances."

12. That was communicated to S's mother in a letter dated 3 May which confirmed, "The decision of the head teacher to exclude S was upheld for the following reason: serious breach of school rules."
13. That then is the factual background to this case. These proceedings are in the form of an application for judicial review, challenging the decision to exclude. The procedure involving an exclusion by the head teacher and subsequent confirmation of that by a committee of the Governing Body is in accordance with current legislation. In R v the Governing Body of Dunraven School ex parte B, decided by the Court of Appeal on 21 December 1999, Sedley LJ said of that procedure at paragraph 9:

"It means in particular that the Discipline Committee of the Governing Body is not a tribunal of appeal from the head teacher, but part of a single decision-making process within the school in which both play a role."

14. The statutory framework is to be found in the School Standards and Framework Act 1998. The school in question is a maintained school within the meaning of section 20(7). Section 61 imposes certain duties on the Governing Body and the head teacher for the purpose of promoting good behaviour and discipline. The standard of behaviour which is to be regarded as acceptable is to be determined by the head teacher so far as it is not determined by the Governing Body, see section 61(6). By section 64, the head teacher has a power to exclude a pupil on disciplinary grounds for a fixed period of up to 45 days in any one school year, or permanently. In relation to exclusion, there are procedural requirements set out in section 65. These include: taking reasonable steps to inform the relevant person, in this case the parent, of the period of exclusion, the reasons for the exclusion, the fact that they may make representations about the exclusion to the Governing Body, and the means by which such representations may be made. In relation to an exclusion of more than 5 days in any one term, the head teacher is obliged to inform the local education authority and the Governing Body of the exclusion and the reasons for it; that is in section 65(3) and (4). Where the Governing Body is informed of an exclusion to which section 65(4) applies, it has a duty under section 66 to consider the circumstances in which the pupil was excluded, to consider any representations made to the Governing Body by the pupil's parent, to allow that parent to attend a meeting of the Governing Body and to make oral representations about the exclusion, and to consider any oral representations so made. The head teacher and the Governing Body are required to have regard to any guidance given from time to time by the National Assembly for Wales. There is such guidance in existence in Circular 3/99 on pupil support and social inclusion.
15. Paragraph 17 of that Circular headed, "Setting up the meeting to consider a exclusion", states:

"The Discipline Committee needs to act quickly on receiving notice from the head teacher that a pupil has been excluded. In the case of exclusions of between 6 school days and 15 schools days in a term, the clerk needs to set up a meeting between the 6th and 50th school days to consider the exclusion. For an exclusion of over 15 school days, the clerk must set up a meeting of between 6 and 15 school days, following receipt of notice of the exclusion. The minimum time limit is being introduced to allow the parent and the LEA time to put together their cases and to allow for a reasonable time lapse between the head teacher's decision to exclude and the governor's consideration of the case".

16. Paragraph 21 acknowledges that there will be circumstances in which the pupil is back at school before the meeting takes place. I have found it a gross anomaly in this case that the meeting of the Discipline Committee took place so long after the exclusion had run its course. I appreciate that it fell within the period referred to in paragraph 17, being between the 6th and 50th school days, but I question whether that amounted to "acting quickly" under the opening words of paragraph 17. Although it has played no part in the claimant's case, I view with considerable misgiving the terms of paragraph 17, allowing for the second stage of the decision-making process to take place so long after the conclusion of the exclusion. I do not propose to make any ruling about that, not least because the source of that procedure is the National Assembly and the National Assembly is not a party to these proceedings, but it does seem to me that the facts of this case disclose a worrying state of affairs if "acting quickly" can result in such a meeting of a Discipline Committee taking place 10 weeks and more after the events in question. It does all render the process somewhat unsatisfactory. However, as I have said, that is not what is in issue in this case and nor is the National Assembly a party to the proceedings. I would like to think, however, that someone will draw these remarks to the Assembly's attention. It is said that the prolonged period is based on a desire to reduce the number of occasions where Discipline Committees have to meet because of the large number of cases which they have to consider. On the face of it I do not find that a very persuasive argument, and I observe that in relation to a longer exclusion, the meeting must take place very much sooner, within, at most, 15 school days following receipt of the notice of exclusion. In my view, all this calls for reconsideration at executive level. Having said that, I now return to the grounds of challenge that are advanced by Mr Garfield on behalf of S in this case.
17. His first challenge is a complaint to the effect that the head teacher, and by inference the Governing Body, applied or may have applied an inappropriate standard of proof to the consideration of the allegation of theft. The origin of this suggestion may lie in what Dr Davies said when initially acknowledging service of these proceedings and setting out grounds for contesting a judicial review. At that stage, Dr Davies was representing the school without the benefit of legal advice. Indeed, it seems that legal representation has only been forthcoming on the part of the school very recently. What Dr Davies said at an early stage of these proceedings was to draw a distinction between the criminal standard of proof "beyond reasonable doubt" and the position obtaining in this case which he described as being a standard on "the balance of probability." Mr Garfield submits that that understates the law's requirements. In this regard, he refers again to the Dunraven case and, in particular, to a passage in the judgment of Brooke LJ at paragraphs 143 to 145. The high watermark of which was this, in paragraph 143:

"Since B was being charged with an offence of dishonesty, the law requires that proof should not be on the ordinary balance of probabilities, but that it should be distinctly more probable that he was dishonestly involved in stealing from the teacher's handbag than that he was not."

18. There, Brooke LJ drew on well-known authorities including Hornal v Neuberger Products Limited [1957] 1QB 247 and Re H [1996] AC 563, particularly the speech of Lord Nicholls of Birkenhead at page 586, and other dicta there referred to. Mr Garfield also places reliance on R v the Head Teacher of Alperton Community School, decided by Newman J on 27 March 2001 and, in particular, a passage in paragraph 28 where he said:

"It has to be said that there is nothing to indicate that the Governing Body did have in mind the precise terms of the standard of proof to be applied, and I would have expected it to have referred to the distinction between the 'ordinary' balance of probabilities test and the higher standard of 'distinctly more probable' had they been instructed to apply the correct test."

Notwithstanding Dr Davies' early venture into the standard of proof at the outset of these proceedings, both he and a member of the Governing Body have addressed this subject in more recent witness statements which were made only last week. I am mindful of the need for circumspection on the part of the court when considering accounts or rationalisations of a decision which are detailed only after the commencement of proceedings and, in this case, a long time after the commencement of proceedings and following some earlier observations by at least one of the witnesses.

19. Dr Davies' recent witness statement says this quote:

"I was and am familiar with the Circular, pupil support and inclusion, issued by the National Assembly for Wales which details the circumstances in which a head may exclude a pupil and the burden of proof to which the head should work. I have referred to this burden of proof in various documents as a balance of probabilities, by which I mean that it is not the criminal burden of proof, beyond all reasonable doubt. I was aware, however, that the guidance required me to dispel any doubts I had as to whether S had indeed stolen the guitar. Having reviewed the details presented to me by David George, I was in no doubt that S had stolen the guitar and, in my view, even if the test had been to proof the matter 'beyond a reasonable doubt', then I would have been happy that the test had been satisfied."

He then sets out the various matters which he took into account. So far as the Discipline Committee is concerned, there is a recent statement from Councillor Douglas John, a long-standing governor and, indeed, the chair of the governors since October 2002. He was one of the Discipline Committee that considered this case. He states:

"I recall that our deliberations took some time, approximately 15 minutes, as we were very conscious of the serious nature of the allegation and also at the involvement of the solicitors concerned. The role of the LEA adviser in the meeting is to give advice to the governors on the grounds on which exclusion could take place, and the appropriateness of the punishment when compared with similar offences elsewhere. He would have also given advice as appropriate as to the burden of proof, although I cannot recall this happened in this particular case. Having concluded its deliberations, the Discipline Committee was satisfied that S had, at the very least, been involved in the theft of the guitar, and that this constituted a serious breach of the school rules justifying the sanction imposed by the headmaster. In reaching this conclusion, my colleagues and I were satisfied of S's involvement beyond any reasonable doubt."

There is a confirmatory witness statement by one of his colleagues. It is to be observed that both Dr Davies and Councillor John refer to the "burden of proof", where what is in issue is, in fact, in the language of lawyers, the standard of proof, but I attach no significance to that inconsistency. In my experience, it is common for lay people to interchange the language by which those concepts are described. Although I have to approach with caution this late evidence which has been permitted to be produced without opposition from Mr Garfield, I am satisfied that, in fact, the correct standard was properly applied and that, in any event, those considering the matter reached a standard of satisfaction to an even higher standard. The appropriate standard, in the sense of the standard required by the law, is less than the criminal standard and is properly described as being "the balance of probabilities", albeit that a gloss is placed upon that language by the authorities in relation to an allegation of seriousness, as this one was. Even if I were wrong about the adoption of the correct standard by the head teacher and the Discipline Committee, I am satisfied that, in fact, the degree of satisfaction which they reached in relation to the understanding of the facts was at least as high as that demanded by the law in the light of the authorities to which I have referred. Indeed, in my judgment, it would be surprising if that were not so in view of the material that was properly before them, and in view of the absence of any positive account from S, or on his behalf, in relation to these matters. Accordingly, in my judgment, this first ground of challenge is not sustainable.

20. The remaining grounds of challenge are of a procedural nature and they go in one form or another to the issue of fairness. It is common ground that in dealing with S's case, both the head teacher and the Discipline Committee were obliged to conduct proceedings fairly throughout. The question is whether or not they did so. A number of points are taken by Mr Garfield: one relates to the interview on 28 January which he describes as oppressive and in which context he seeks to rely to Mr George's account of S breaking down at a late stage of that interview. I have to say that, in my judgment, the proceedings cannot properly be described as oppressive. They seem to me to have been conducted in a manner consistent with the obligations of fairness. To the extent that Mr George adopted his usual practice of speaking to people individually and then later together, that does not seem to me, absent of any special circumstances, to manifest any departure from the standards of fairness. Special circumstances sought to be relied upon here are an allegation of bullying by these very boys on previous occasions; however, there is before me a document extracted from school records detailing a number of complaints of bullying made on or on behalf of S. What is significant is that they do not relate, at any stage, to these particular three boys in whose company he had been briefly on 22 January. I therefore find nothing unfair in that aspect of the matter.
21. The other aspects of the matter to which Mr Garfield draws attention are more difficult. The form of unfairness which he seeks to advance by reference to them is in connection with the disclosure or non-disclosure of material prior to the meeting of the Discipline Committee. I have recounted how the solicitors had asked for full disclosure and had received some kind of assurance from Dr Davies that there would be such disclosure, albeit after 15 working days, but, in the event, what was actually disclosed to S, his mother and their solicitor, was simply the synopsis to which I have referred. It is common ground that when the Discipline Committee met, it had before it not just the synopsis on which it based its decision, but also a large amount of other material including the witness statements made by the other boys and historical school records. The question arises whether the failure to disclose this other material was unfair and may have been productive of an injustice.
22. I return, again, to the two authorities which have played a prominent part in these proceedings. In Dunraven, Sedley LJ, at paragraphs 64 to 67, drawing on previous authority, referred to the right to have disclosure of written material. This was repeated by Newman J in the Alperton case. He said at paragraph 31:

"The fundamental principle which was upheld in the case of Dunraven was that the pupil, through his or her parent, had a right to be heard. For that to be worthwhile, the parent had to be supplied with the material and statements, not that the witnesses themselves should be available to be questioned  . . .  all the relevant information was disclosed to the claimant's mother before the hearing, and no particular feature of the case has been drawn to my attention which compels one to the conclusion that it was necessary in the interests of fairness for the panel to permit cross-examination."

23. No issue arises in this case as to cross-examination. As I have observed, S's mother decided to absent herself from the Discipline Committee's meeting.
24. It seems to me that the school and its Governing Body did fail to meet the full standard of fairness required of it when it confined its disclosure to the synopsis. Having regard to the authorities to which I have just referred, it is apparent that there was an entitlement to a greater disclosure than that. To that extent, the school did not conform with the fullness of the requirements imposed upon it; however, the question that then arises is whether any injustice was caused by that omission. When the solicitors received the synopsis, they wrote to Dr Davies on 29 April in these terms:

"Whilst we appreciate normal practice may be, our client needs to know full details prior to an appeal panel meeting. We confirm we have received this information under cover of your letter of 23 April 2002".

That, it seems to me, may properly be construed as satisfaction with that which had been received. I should say that the synopsis is far from being a skeletal document. It does contain a reference to all the significant source material, including the material of the fourth boy who said he had seen S with the guitar protruding from his bag, thus providing what was viewed as independent corroboration of what the other three boys had said. Also, I return to the matter of the way in which S's case was being, indeed, is being, presented. A decision must have been taken not to advance any kind of positive narrative about the events of 22 January, or any factual denial of the account given by Mr George of his dealings with S. The decision was also taken not to attend the meeting of the Discipline Committee but to rely on the "grounds of appeal" alone, which, so far as the facts of the matter are concerned, contained little more than a bare denial. In these circumstances, can it be said that the procedural shortcoming to which I have referred, that is to say the non-disclosure of the source material, occasioned any operating unfairness or injustice so far as S is concerned? In my judgment, it cannot so be said. I have come to the conclusion that notwithstanding those procedural shortcomings, they do not provide a basis upon which, in its discretion, the court ought now to interfere with the decision of the head teacher or the Discipline Committee in the circumstances of this case. Provision of remedy or relief in judicial review is a matter of discretion, and if, as here, the court concludes that the procedural shortcomings did not occasion injustice, then it would be, in these circumstances, inappropriate for the court to grant any specific relief. I should add that this does not amount to a judicial finding that S stole the guitar, that is not the function of this court. That is an area in which this court has no right to trespass. What it is, is a finding that the head teacher and the Discipline Committee were entitled to reach the conclusions which they reached on the material that was before them, and a finding that although there were procedural shortcomings, they did not occasion any injustice, nor had they not existed would they have produced a different result so far as the head teacher and the Discipline Committee is concerned. In all those circumstances, whilst the claimant has established procedural shortcomings, I shall not grant any relief. I should add as a matter of history that having returned to the school at the conclusion of his exclusion, the claimant remained there, as I understand it, until the end of the school year which finished with his GCSE examinations. At that point he left school and I am told he is now in employment.

25. MR GARFIELD: My Lord, I am instructed to respectfully apply for leave to appeal to revisit the contentions that we advanced before your Lordship. I do not know whether you wish me to go into details. It is always very difficult in these circumstances.
26. MR JUSTICE MAURICE KAY: Which parts of the case do you want to appeal on?
27. MR GARFIELD: We would wish to revisit your ruling in relation to the application of the appropriate test. We would be advancing the sort of matters that I quoted from Alperton.
28. MR JUSTICE MAURICE KAY: But I have agreed with you as to the test --
29. MR GARFIELD: And we would not agree with your very kind findings in relation to the revealed mind ex post facto of Dr Davies. It seems to me at least that that is a very shaky finding at a very late stage to base any conclusion upon; that would be what we would be arguing. Also, in relation to procedural matters, there was before the headmaster the matter which I highlighted, the last witness, which was never taken up with the applicant or his mother, which played a substantial part, not referred to at all in your Lordship's judgment --
30. MR JUSTICE MAURICE KAY: It was disclosed in the synopsis.
31. MR GARFIELD: But he had no opportunity of dealing with it and, therefore, in dealing with that aspect of the case, was dealing with material which he found pertinent which influenced his decision. When it came to the other matters in relation to procedural irregularity, we say that the emphasis is that it did count in an unjust way because it misled the applicant and the solicitor, as she indicated in her statement, to take a certain course of action which has caused you to say that they were not proactive enough. In fact, there is no particular duty to be proactive. The proactive part of the case is from the point of view of those who are accused, not those who defend. To be proactive in your own cause when you do not know the full facts of the matter is a very risky matter, and that is how people approach the criminal position and that is why they were entitled to choose, in this case, to approach matters. So we say that the emphasis on us not being proactive and interpreting the letter in that particular way is something we would wish to revisit, I am not putting it higher than that. As I say, it is very difficult in these circumstances to revisit matters, but those are the matters we wish to raise by revisitation.
32. MR JUSTICE MAURICE KAY: Mr Garfield, you will not revisit them with my permission but, of course, you may renew your application to the Court of Appeal.
33. MR GARFIELD: I accept your ruling, my Lord.
34. MR JUSTICE MAURICE KAY: I say it simply on the basis that, in my judgment, you would not have a real prospect of success which is the threshold you have to surmount. You may be able to persuade the Court of Appeal to the contrary.
35. MR GARFIELD: It is a difficult situation, given your view, to be sympathetic to any permission, but can I apply for what used to be called a legal aid taxation direction?
36. MR JUSTICE MAURICE KAY: Yes, community legal service funding assessment. Of course you may have that.
37. MR GARFIELD: The applicant is publicly funded.
38. MS HENKE: My Lord, of course that does arise the question of costs and I do make the application.
39. MR JUSTICE MAURICE KAY: I found procedural shortcomings on the defendant's side. It will probably be meaningless in any event, in view of the fact that the applicant is a publicly assisted minor, but having regard to both of those matters, I think the wise course is not to make any order for costs.
40. MS HENKE: My Lord, I do not press the issue. Thank you very much.