Case No: CO/4237/2000
Neutral Citation Number: [2001] EWHC ADMIN 164
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 7th March, 01

B e f o r e :

THE HONOURABLE MR JUSTICE SCOTT BAKER

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	The Secretary of State for Health	Appellant	
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	Prospects Care Services Limited
And
Stephen Hyland
	Respondent

Second Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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 Miss Sarah Moore   (instructed by The Solicitor Department of Health for the Appellant)
The Respondent was not represented.
Mr Stephen Hyland, the Second Respondent appeared in Person
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Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Scott Baker:

1.	This is an appeal by the Secretary of State for Health under Section 11 of the Tribunals and Enquiries Act 1992.  The Respondent is in creditors’ voluntary liquidation, joint liquidators having been appointed on 10 October 2000. Mr Hyland was managing director of the Respondent which was incorporated 7 years ago. It is registered as a not-for-profit organisation and ran voluntary children’s homes in Somerset. He and his wife, who was the company secretary, are the only shareholders. 
2.	At the commencement of the hearing before me Mr Hyland asked to be substituted for the Respondent on the ground that the liquidators had assigned to him an asset that included the “right and interest in defending the appeal.” He produced a deed of assignment dated 20 December 2000. The liquidators indicated they intended to take no part in the appeal. They also indicated that Mr Hyland did not have authority to conduct the appeal on the Respondent’s behalf, although they may have taken a different view had they realised that the Secretary of State was prepared to undertake not to ask for any costs. 
3.	I expressed my doubt about the validity and effectiveness of the purported assignment as it seemed to me that the so called right and interest sought to be assigned was in reality the registration of the Respondent’s children’s homes under Section 60 of the Children Act 1989, something that was personal to the Respondent. Miss Moore, for the Respondent, following some research, made a provisional submission to the same effect.
4.	In consequence I decided, with the agreement of Miss Moore on behalf of the Secretary of State, that a preferable course was to give leave to Mr Hyland to be joined as Second Respondent under C.P.R. 19 (2). I did so because I was satisfied Mr Hyland has a very real interest in the outcome of the appeal. His interest arises in this way. The decision under appeal is that of a Registered Homes Tribunal made on 20 October 2000 that the cancellation by the Secretary of State of the registration of the homes should be of no effect. Should the present appeal succeed, it may lead to the reinstatement of the cancellation of the registration. That has serious consequences for those, including Mr Hyland, who were concerned with the management of the homes. In short they cannot be foster parents or registered child minders or be concerned in the management of a voluntary home without the written consent of the Secretary of State. It is therefore very much in Mr Hyland’s interests that the decision of the Tribunal be maintained. In the event, I have been very greatly assisted by the skilled and detailed argument that Mr Hyland has put forward in resisting the appeal. 
5.	The Law
Section 60 of the Children Act 1989 provides that no voluntary home shall be carried on unless it is registered in a register kept by the Secretary of State. Voluntary home means, with certain exceptions that are not relevant, any home or other institution providing care and accommodation for children. The section is supplemented by the provisions of Schedule 5.
6.	Paragraph (1)  (4) of Schedule 5 provides that where at any time it appears to the Secretary of State that the conduct of a voluntary home is not in accordance with the regulations made under paragraph 7, or is otherwise unsatisfactory, he may cancel the registration of the home and remove it from the register. The relevant regulations are the Children’s Homes Regulations 1991. 
7.	Paragraph 2 (4) provides that the Secretary of State shall give any person carrying on a voluntary home notice of a proposal to cancel the registration of the home. There is an opportunity to make representations to the Secretary of State (Paragraph 3 (1)) which may be made orally or in writing (Paragraph 4). An appeal against the Secretary of State’s decision lies to a Registered Homes Tribunal. The Tribunal may confirm Secretary of State’s decision or direct that it shall not have effect.
8.	Thus it will be seen that the Secretary of State has discretion to direct cancellation of the registration but before he can exercise it one of two conditions must be satisfied. Either the conduct of the home is not in accordance with the regulations under Paragraph 7 or it is otherwise unsatisfactory. The question that arises is how should the discretion be exercised. How unsatisfactory does the conduct of the home have to be before closure should result? In my judgment some assistance is to be found in Section 61 of the Children Act which places a duty on the voluntary organisation accommodating the child to safeguard and promote his welfare and in Section 62 which places a duty on the local authority to satisfy itself that the organisation is satisfactorily safeguarding and promoting the welfare of any child in its area or being looked after on its behalf.
9.	The Children’s Homes Regulations 1991 contain a comprehensive code for the conduct and administration etc. of children’s homes. It follows therefore there are numerous different ways in which the regulations could be breached in the course of a home’s management. Likewise, the concept of conducting a home “otherwise unsatisfactorily” is something that encompasses a wide range of possibilities. Some breaches of the regulations or deficiencies in the conduct of a home will call for immediate cancellation; but others will not. The paramount consideration must, it seems to me, be the welfare of the children in the home. In this regard it has to be borne in mind that from the children’s viewpoint the arguments may not necessarily all be one way. Whilst there may on the one hand be strong arguments for cancelling a registration and consequently closing a home, these may be counterbalanced by the disruption and disadvantage closure will cause to the children who are living there. Also, it seems to me, a distinction needs to be drawn between the type of conduct that actually harms the children in the home or places them at imminent and serious risk of it, and that which is potentially damaging if persisted in, but is capable of being remedied. The Social Services Inspectorate will wish where possible to remedy any deficiencies and permit a home to continue rather than to close it down.
The history in the present case
10.	Mr Hyland was formerly a karate instructor and his interest in working with and for children led to his employment as a teaching assistant at Sedgemoor College. Subsequently, on a self employed basis, he worked for the college in various roles including fostering. He became concerned at the way that young people with exceptional behavioural difficulties fared in the child care system. He set up the Prospects Organisation. He has been a driving force within the organisation but there has always been a qualified and experienced social worker as head of care. Since 1997 this has been Mr Keith Biggs. The organisation has employed up to 80 staff at a time to care for up to 10 very disturbed young people. 
11.	Mr Hyland was concerned at the number of placement breakdowns there were for the most difficult young people. He reasoned that, in the short term, one could not expect these youngsters to behave in other than a difficult manner so that it was unreasonable to place them in homes where they would inevitably be rejected if they behaved in this way. The Respondent expected difficult behaviour and had a staff trained to cope with it. It accepted youngsters with a history of violence and placed them in separate homes spread over quite a large part of Somerset where they were cocooned and surrounded by good role models. Some required constant supervision by two members of staff for some time after arrival. Physical restraint, as the tribunal found, to prevent a young person from significantly injuring himself or others or causing serious damage to property was necessarily required more frequently than would be expected in most children’s homes. The restraint included making sure the young person knew he was still cared for after the restraint had ceased. It was expected that the young person’s behaviour would gradually improve as a result of developing self-control. At the same time, other aspects of the young person’s development were pursued. The Respondent had its own education department and there was an interdependence training programme. The Tribunal noted that Mr Hyland was justifiably proud of the educational attainments of young people who had previously been school refusers. It found that the Respondent’s techniques did not always work but that they appeared to have done so with many very badly disturbed young people. The Respondent started on a fostering basis but since about 1996 had been registered as a voluntary home. 
12.	As the registration authority, the Secretary of State acts through the Social Services Inspectorate who carry out the necessary inspections. It describes its main functions:
(i) to provide professional advice to ministers and central government departments on all matters relating to the personal social services;

(ii) to assist local government, voluntary organisations and private agencies in the planning and delivery of effective and efficient social care services;

(iii) to run a national programme of inspections, evaluating the quality of services experienced by users and carers;

(iv) to monitor the implementation of government policy for the personal social services.

13.	There was an announced inspection of the homes in the spring of 1998 and  unannounced inspections in March and November 1999. On 1 October 1999 the Inspectorate wrote saying that consideration was being given to the continued registration of the homes. There was a very poor relationship between the Inspectorate and Mr Hyland. There were clearly faults on both sides. They had got across each other. The Tribunal said although the letter of 1 October 1999 was, as far as it went, a proper warning, little of the Inspectorate’s advice had been calculated to secure change and it had never tried a proper focused threat of cancellation or other formal action before recommending the issue of a notice of proposal to cancel the registration. Such notice was issued on 25 January 2000.  
14.	The Tribunal made the important finding that this was not a case where the matters complained of were so serious that urgent action had to be taken. There was time to escalate the pressure on the Respondent.
15.	The Tribunal pointed out that the reasons given by the Secretary of State on 25 January 2000 for issuing his notice of proposal to cancel the registration although given at some length were nonetheless vague in a number of respects. They were in summary:
(i) not safeguarding the welfare of children in the homes, in particular D W, A M and A K;

(ii) failure to understand the relevant guidance about the use of physical restraint;

(iii) isolation from the mainstream of residential care;

(iv) staffing arrangements;

(v) failure to work properly with the registration authority and outside agencies;

(vi) Mr Hyland unsuitable to have charge of the care of children;

(vii) various breaches of the 1991 Regulations, such as failure to make available a telephone for children to make and receive private calls;

(viii) failure to report serious harm to L T.

16.	On 17 March 2000 Mr Hyland had attended with counsel to make representations why the proposal should not be adopted. There was a complaint that the Inspectorate would not provide particulars of the unparticularised allegations and the apparent approach that it did not matter because Mr Hyland could appeal against an adverse decision and particulars would then be forthcoming. However, the complaint fell on deaf ears and on 31 March 2000 the Secretary of State adopted the proposal save in one small respect. 
17.	The Respondent immediately appealed. The situation was of extreme gravity from its point of view. A proposal to cancel, once adopted by the Secretary of State, inevitably had obvious and serious consequences for the business and eventually its continuing viability. Liquidators were appointed 10 days before the successful result of the appeal was published. After 31 March Mr Hyland again unsuccessfully sought the particulars and asked to have the appeal hearing brought forward. This was resisted by the Secretary of State on the basis that further information was still coming to light and there were new issues. Full particulars were eventually provided on 9 June 2000, the very last day permitted by the rules.   
18.	The Tribunal’s finding was:
“The process of cancellation seems to us to have been conducted in a most unsatisfactory manner. We are particularly concerned at the failure adequately to identify the grounds for cancellation both before and after the notice of proposal was issued.”

19.	That finding was not challenged in this appeal. Nor was the finding that proper reasons for the decision to cancel the registration were not forthcoming until 9 June 2000 and that the Inspectorate appeared to have been using the time allowed before the statement of reasons had to be served to construct an entirely new and additional case against the Respondent.
20.	 The Tribunal criticised the rules, which it said should be redrafted to enable appeals to be heard more quickly. It pointed out that it was little consolation to those running a home to win the appeal but lose the home as happened here. Two of the homes the Anchorage and Annod were forced to close before the hearing concluded. With that background I turn to the way in which Miss Moore advanced her case.
Perversity
21.	Her first ground of appeal is that the Tribunal’s decision not to uphold the Secretary of State’s cancellation of the registration was perverse. For the purposes for this argument she was prepared to accept the findings of fact of the Tribunal, but contended that on the basis of those findings it was perverse to allow the homes to continue. The only rational decision the Tribunal could have reached was to dismiss the appeal. For these purposes she divided the material findings into four: 
(i) repeated findings of misjudgment by Mr Hyland as regards his conduct towards the children in his care.
(ii) repeated findings of misjudgment by Mr Hyland as regards his relationship with the Inspectorate and local authorities;
(iii) repeated findings of misjudgment by Mr Hyland as regards his language and behaviour towards his staff, including sexual harassment;
(iv) findings about failings in the running/management of the Respondent that had put the children in its care at risk. 
It is necessary therefore to look at each of these.
His conduct towards the children
22.	The Tribunal agreed with counsel for the Secretary of State that these were the most serious allegations in the case. Five children were involved.
E.T.
ET was anorexic and was placed with the Respondent on her discharge from an adolescent psychiatric unit because she had other difficulties and needed 24 hour supervision to avoid fatally harming herself. Dr Coverley was her consultant child and adolescent psychiatrist and felt she was controlling her eating disorder. She arrived on 31 July 1998 weighing 42 kilograms which was a good weight for her. On 2 September Dr Coverley received from ET’s mother, who had just visited her, a letter reporting ET had lost 4 kilograms. Dr Coverley had not been notified of this weight loss by the Respondent and she immediately telephoned Mr Biggs who told her she was then down to 37 kilograms. Dr Coverley described the weight loss as staggering. On 8 September a review meeting was held and on 11 September ET was transferred to a hospital under the care of Dr Coverley. The Tribunal pointed out that this episode gave rise to five specific allegations.
i)	The Respondent should have notified Dr Coverley of the weight loss. The Tribunal concluded that this was partly administrative bungling, but partly due to a misunderstanding of the extent to which Dr Coverley wished herself to keep a close eye on the situation. The Respondent consulted ET’s new G.P but should have been in touch with Dr Coverley as well. 
ii)	The psychiatric unit from which ET had been discharged sent the Respondent two copies of her discharge summary. One of them should have been passed on to the new G.P when E.T was registered with him, but this was never done. The Tribunal concluded that this was an administrative error compounded by Mr Biggs understanding that the G.P would have received a copy of the summary with her medical records.
iii)	The staff were told not to interact with ET or to allow her mental stimulation such as reading magazines or listening to the radio. Mr Biggs believed this to be the instructions of  Dr Coverley. But what Dr Coverley had said was that if ET was not eating and was weak she was to have bed rest and not to exert herself physically and that she was not to be allowed to distract herself from eating at meal times. The Tribunal found that Mr Biggs’ instruction, dated 8 September, was only in force for a short time and arose from a misunderstanding of Dr Coverley’s instructions.
iv)	ET claimed there was occasions when meals had not been prepared for her but the Tribunal found this was not established.
v)	There was one occasion when Mr Hyland took hold of ET’s head and screamed at her for refusing to eat. Mr Hyland said he was pleading with her to eat and denied shouting at her. The Tribunal said he went further than he should have done, but out of genuine concern and frustration at his powerlessness to help her. It was not abusive conduct. 
23.	The Tribunal’s overall conclusion about ET was that its findings gave rise to serious concerns about the Respondent’s competence and Mr Hyland’s judgment, but that it did not bear sole responsibility for the lack of communications. Furthermore, on the positive side they had involved the G.P. 
R.E.
24.	She gave evidence to the Tribunal. She was 18. Six allegations arose from her evidence.
i)	An incident in December 1996. RE said she was lying on the floor refusing to do her interdependence programme work and that Mr Hyland came in and said she was being pathetic and a “drama queen” and he picked her up and shouted at her, at which point she slapped herself in the face and hurt herself. She also said he held her up against the wall. Mr Hyland’s evidence was that she was already slapping herself when she was on the floor. He picked her up, but didn’t shout at her. The Tribunal pointed out that the incident had occurred 3½ years before and that it was not sure either account reflected fully what had happened in a highly charged situation. Nor was it satisfied that in the circumstances picking RE up, holding her against the wall and shouting at her was inappropriate.
ii) and (iii) These allegations concerned abusive and sexualised language. Without being satisfied about exactly what was said and the exact context, the Tribunal was unable to go further than conclude that there “may well have been an element of misjudgment in Mr Hyland’s use of sexualised language”.
iv)	The Respondent unreasonably sought to control RE’s contact with Mrs Yabsley at the end of May 1995. Mrs Yabsley was the Head of Student Services at the local 6th Form College. Mr Hyland’s position was that RE tended to make inappropriately intense relationships with people and that the relationship with Mrs Yabsley was undermining her relationship with the Respondent. RE was making unjustified criticism of the Respondent to Mrs Yabsley with a view to enlisting her support against the Respondent in a destructive way. RE took a drug overdose on 1 June 1999. The Tribunal’s conclusion was that the Respondent did not handle the situation well, virtually instructing Mrs Yabsley to break off relations with RE and being very cavalier with RE. They could have worked better with Mrs Yabsley.
v)	Vetting letters and not allowing private telephone calls. The Tribunal found that the Respondent was in breach of Regulation 7 (5) of the 1991 Regulations and not just with regard to R.E. Regulation 7 (5) provides:
“The responsible authority shall ensure that a telephone is available for children accommodated in the home in a setting where it is possible to make and receive telephone calls in private.”

I shall return to the circumstances later. As to vetting letters, the Tribunal’s finding was that it was not satisfied the Respondent was deliberately trying to control her correspondence, albeit there were occasions when she felt her privacy was not being respected.
vi)	Mr Hyland unjustifiably stopped her from taking a part time waitressing job in a restaurant. The Tribunal’s conclusion was that Mr Hyland was entitled to take the view that the job was unsuitable. 
S.B.
25.	The allegation was that Mr Hyland called SB a “disgusting slut”, “whore” and “fucking cunt.”  Evidence of this was given by Ms Hayman, who worked as a care worker at the Respondent between December 1997 and October 1998. SB was about 14 or 15 at the time, and the context was that SB had absconded and Mr Hyland told Ms Hayman that this was how SB thought of herself and he was trying to work with her. Despite the context, Ms Hayman considered the language inappropriate, albeit she could not remember the exact words. Mr Hyland was shouting. Mr Hyland denied using the words alleged, however the Tribunal saw no reason to disbelieve Ms Hayman. But at the same time it concluded Mr Hyland’s lack recollection could simply indicate he could not remember anything untoward. Although making no specific finding it said it suspected Ms Hayman’s reaction to the event indicated an element of misjudgment on Mr Hyland’s part. Later in its reasons the Tribunal said there was no evidence of sexual impropriety towards the young people. 
D.A.W
26.	DAW was a twelve-year-old who had absconded. He was of low intelligence. The complaint, accepted by the tribunal, was that Mr Hyland overpowered him twice to show him that he was wrong to believe he could defend himself successfully against adults. The evidence was that when Mr Hyland did this DAW looked shocked and bewildered. The Tribunal agreed that the action was inappropriate but accepted it was not intended to hurt DAW and that if Mr Hyland had first made clear why he was doing what he did it would at least arguably have been a reasonable way of demonstrating his point. There is no suggestion that DAW suffered any actual harm.
K.L. 
27.	In September 1999 Mr Hyland wanted KL to come to his office to discuss having burnt a shower curtain. She refused and Mr Hyland instead went to see her in her home. Mrs Clarke, who was a resident care worker at the time, thought that this was a misjudgment on Mr Hyland’s part as it was likely to provoke KL to violence. Mrs Clarke talked to KL to try and prevent that happening. It worked; she was not violent when Mr Hyland arrived and spoke softly to her. The Tribunal accepted that it was a misjudgment on Mr Hyland’s part to go to KL’s home.
28.	Finally Miss Moore relied on a more general finding namely that:
“The Prospects Organisation have sometimes put inappropriate pressure on young people with divided loyalties.”

29.	This was in the context that where there was a disagreement between the Respondent and a placing authority the Respondent made the disagreement plain and sought to persuade the youngsters that its plan was better. An example was given that when BW was moved at short notice a number of staff gathered to say their good byes and were openly crying. The Tribunal, whilst not finding that inappropriate pressure was consciously applied, said that it could have been avoided. 
In summary therefore the Tribunal found that in relation to four children and one general matter the Respondent’s conduct fell short of what was appropriate. In another case (S.B), without making a specific finding, the Tribunal “suspected an element of misjudgment.” It is of course for the Tribunal to assess the gravity of the failure both in the individual instances and collectively. In no instance was there found to be any hostile motive on the part of Mr Hyland or his staff, rather the failures seem to have been essentially errors of judgment or omissions. 
Relationship with the Inspectorate and Local Authorities
30.	Miss Moore drew my attention to a number of passages in the Tribunal’s decision and it is unnecessary for me to repeat them all. At the beginning of the section in the decision headed: “Relationship with the Inspectorate” the Tribunal said:
“Part of the problem in this case is the Prospects Organisation and the Social Services Inspectorate have both regarded themselves as pre-eminent in their fields, have resisted challenges to their ways of thinking and have failed to engage in constructive dialogue with each other.
The major part of the blame for the lack of constructive dialogue lies with Mr Hyland. He is not just confrontational (which is not always a bad thing) but he has bombarded the Inspectorate with very large numbers of very long letters full of invective and unnecessary criticism. On occasions he has preferred to pursue minor criticisms of the Inspectorate rather than address their legitimate criticisms of the Prospects Organisation and this approach has tended to obscure a number of perfectly reasonable points that he has made. On the other hand, the Inspectorate have invited some of the correspondence and criticism by failing adequately to deal with those of Mr Hyland’s points that are reasonable.”

31.	A little later the Tribunal said:
 “The Inspectorate have also shown a remarkable reluctance to give Mr Hyland practical advice.” 
It pointed out that if he was told some aspect of running a home was not acceptable it was perfectly proper for him to ask the Inspectorate for guidance of what they expected him to do.

32.	There is no doubt that Mr Hyland was a difficult person for the Inspectorate to deal with and that he wrote unhelpful letters. On the other hand, it is clear that the Tribunal felt the Inspectorate shared some of the blame for the poor relationship that had developed between them. Neither side acted in bad faith but the relationship was clearly very unsatisfactory. This appears to have led to the Inspectorate’s failure to discuss things with the Respondent before making its report to the Secretary of State with the result that the report was very one sided. 
33.	As to the Respondent’s relationship with the local authorities the Tribunal’s conclusion was this:
“No local authority is forced to place a young person with the Prospects Organisation so that, if the Organisation gains for itself a reputation for being impossible to work with, they will ultimately go out of business. There is no doubt that they can be difficult to work with. On the other hand, the local authorities are not always right and ought to be able to cope with challenges. The Inspectorate wrote to every authority that placed young people with the Prospects Organisation. We have heard complaints from only a few of them, and even some of those with complaints have also spoken positively about the Prospects Organisation. Our view is that Mr Hyland is motivated by genuine concern for the young people in the Organisation’s care and we are not satisfied that the decisions about the care of young people are motivated by commercial concerns as was suggested to us but he does not understand how local authorities work and so does not challenge them in acceptable – and effective – ways. We have already mentioned his letter writing style.  We accept that he is also hectoring in his manner when dealing with some social workers face to face.”
34.	The critical question, it seems to me, is whether the relationship between Mr Hyland and his company with the Inspectorate and/or the local authorities had deteriorated to such a point that there was a significant risk of harm to the young people in his care. Absent such a risk, it does not seem to me that any misjudgment on the part of Mr Hyland in the way that he dealt with Inspectorate or the local authorities is material to cancelling the registration of the homes. The point applies with even greater force where My Hyland is not given a specific opportunity to remedy his deficiencies. Nowhere in the decision of the Tribunal is it suggested that the welfare of the children was seriously prejudiced. 
Mr Hyland’s language and behaviour toward staff
35.	Miss Moore relied on five matters.
Mrs C.
36.	On 28 July 1999 (not 1998 as appears in the Tribunal’s decision) an employment tribunal found Mr Hyland had sexually harassed Mrs C, who was at the time a member of staff. The harassment occurred in Jersey on a trip to return ET for hospital treatment following the problems described earlier in this judgment. The Tribunal properly treated itself as bound by the finding of the employment tribunal but did not regard the circumstances as germane to the issue of cancellation of registration. ET was neither present at nor involved in any way in the sexual harassment.
Mrs Foreman
37.	The Tribunal accepted her evidence that Mr Hyland made a very unpleasant comment to her when telling her to remove her lipstick, and that he once made a gratuitously offensive remark to her about a passer by. She, however, balanced these incidents against the positive aspects of working for the Respondent and indeed wrote a complimentary letter when she resigned on moving out of the area.
General
38.	The other three matters were of a more general non-specific nature. Mr Hyland once said to a member of staff that he had to remind himself that he was her boss. The evidence of Ms Hayman was that it always seemed to be young female members of staff on whom the restraint techniques were demonstrated and thirdly there was evidence from other people that Mr Hyland was in the habit of using crude language when speaking to staff. 
39.	The Tribunal finding was that conduct towards staff was not very germane to the issue of cancellation of registration. There was a large staff group and although Mrs C’s complaint to the Tribunal caused some divisions, it did not seriously disrupt the working of the staff to the disadvantage to the youngsters of the home. The Tribunal said:
“We deplore some of Mr Hyland’s conduct towards staff – and it would no doubt attract disciplinary action against him were he an employee – but we are not satisfied that it is currently having a significant detrimental effect on the young people.”
I have been unable to find any reason to disagree with this conclusion
Management failings putting the children at risk.
40.	Miss Moore relies on seven findings of the tribunal.
i)	“It is not in dispute that there were a number occasions when staff commenced employment before police-check forms and references had been received……… we find the Prospects Organisation’s cavalier attitude to the lack of references to be inexplicable. This has been one consistent theme through inspection reports and the Prospects Organisation has simply ignored the criticisms.(P.45).”
The Tribunal did, however, point out that there was evidence that new staff to whom this applied were always adequately supervised because they were put on shifts with someone of some seniority and that provided there is no “substantial and unsupervised access to children on a sustained or regular basis” the employment of staff awaiting police checks may be acceptable. (Regulation 5 (3) of the Children’s Homes Regulations 1991, as amended).
ii)	On several occasions some considerable time elapsed before new staff were given restraint training and in the meantime they were expected to work with very challenging young people. Also, supervision sessions seemed sometimes to have been erratic. (P46).
The Tribunal accepted that the Inspectorate had some legitimate concerns, but pointed out that the staff from whom they had heard appeared generally to have had a good idea what was expected of them and to have been competent. They had seen the files of two of the children and the staff entries in them supported that view.
iii)	Failure to hold formal management reviews of incidents.
The Tribunal said at P47 that the Respondent had not held management reviews of any incident in the sense required by the Inspectorate. However, they went on to point out that the Inspectorate had not made it clear what they meant by a “management review” or what they expected the records of such a review to contain. This, however, has now been attended to and the Respondent will hold the appropriate reviews in future.
iv)	Handling of an incident on 1 January 2000
The Tribunal said at P47 that there was a failure properly to investigate and take action as regards an incident when a care worker was injured by one of the youngsters. There was a suggestion that a care worker had behaved inappropriately. The Tribunal went on to point out that while the Respondent was at fault, the failure had to be seen in context that the young person had been moved and the care worker was off work for a very considerable time.
v)	Professional isolation.
The Tribunal concluded (P48) that the Respondent was to an extent professionally very isolated and that in the long run this was unhealthy. The Respondent’s view was that it was different from others and had nothing to learn from them. The Tribunal accepted that it was different but said it had the impression outside influences were more welcome if they were unlikely to be challenging. While it deplored the Respondent’s relative professional isolation, it was not satisfied it was having a significantly detrimental effect on the care of young people placed with them. 
vi)	The telephone call of at least one young person whose calls should not have been monitored was listened to by a member of staff and summarised in the records. This was unacceptable (P49). 
The problem however appeared to have been overcome by pay-as-you-go mobile phones, albeit the solution was late in coming.
vii)	Regulation 19 (2) (c) of the 1991 Regulations.
Regulation 19 provides for the notification of significant events. One such event is the suffering of serious harm by a child accommodated at the home.
There was an issue about this before the Tribunal. Four cases of self-harm by LT were relied upon as requiring notification. Two had resulted in LT being taken to hospital; two not. The Tribunal concluded the former required notification but the latter did not. In fact the placing authority was notified of both the hospital incidents, but the regulations required that notification should also have been given to LT’s parents, the District Health Authority, the Somerset County Council and the Secretary of State. The Tribunal pointed out the Respondent had been criticised in the spring of 1998 for failing to report incidents of self harm when youngsters had been taken to hospital.
The whole question of notification was ventilated before the Tribunal at some length. It was obviously not an entirely a straightforward one and the Tribunal made some helpful suggestion for the future. The Respondent was found to have breached Regulation 19 (2) (c) but to a lesser extent than the Inspectorate had alleged.
41.	In considering the allegation of perversity it has been necessary to examine the findings relied on by Miss Moore in some depth. This was a Tribunal that had considerable experience in the field of childcare. It heard evidence and argument over a period of eleven days. It was in a particularly good position to weigh the gravity of the findings that it had made and consider their relevance both individually and collectively to the welfare of the children in the care of the Respondent. The most serious findings are those that relate to the children directly. However, none of them involves a deliberate error on the part of Mr Hyland or his employees. Rather, they are errors of judgment in difficult situations. As the Tribunal observed, the failures have to be looked at not in isolation but collectively and it had to balance the faults of the Respondent against the positive aspects of what it was doing. The Respondent was, of course, coping with particularly challenging young people.
42.	The Tribunal was concerned it had no power to propose any sanction short of closure. It pointed out that voluntary organisations are not agents of the Secretary of State and that those carrying on voluntary children’s homes are not employees of the Secretary of State and are not obliged to do things the way the Secretary of State would wish so long as they comply with the legislation and take account of his guidance. Whether a failure to follow what is conventionally regarded as good practice means that the conduct of a home is “unsatisfactory” is a matter of judgment. The Tribunal added that voluntary organisations are entitled to a margin of appreciation. I am not entirely clear what the Tribunal meant by a margin of appreciation in this context. Running the home unsatisfactorily, like breaching the regulations, is a trigger to the exercise of a discretion to cancel the registration. Not every breach of the regulations or unsatisfactory feature in running the home necessarily leads to cancellation. That is where the exercise of discretion comes in. The Secretary of State, and likewise in this case the Tribunal, had to weigh up several factors including the nature and extent of the breaches of the Regulations and unsatisfactory features, the effect on the children of what had occurred, whether there was likely to be a recurrence, as well as the disadvantages to the children in the homes if they were closed. They concluded on balance, albeit with some hesitation, that the breaches of the regulations and other unsatisfactory elements of the conduct of the homes did not justify that sanction and that the Respondent should be allowed to continue the valuable work it did with young people. That is a conclusion that I am unable to say is perverse or, putting it in different words, that no reasonable tribunal could have come to.
43.	Miss Moore’s next series of submissions was on the basis that some of the Tribunal’s findings of fact were perverse. This she put under seven headings.
R.E.
44.	I have already referred in some detail to RE in relation to Miss Moore’s first series of submissions. Miss Moore picks on the findings about the 1996 incident:
“We are not satisfied that it was inappropriate for Mr Hyland to pick RE up or even to hold her against the wall if that is what he did. Nor are we satisfied that it was inappropriate for him to raise his voice if she was hitting herself.”
45.	Miss Moore argues that the Tribunal effectively concluded that it was not inappropriate for a manager of a children’s residential care home to pin a child against the wall and shout at her. There can, she said, be no occasion when this kind of behaviour is appropriate and the finding sends the wrong message to those who manage and run children’s homes. But the sentences picked on by Miss Moore must be seen on context. What the Tribunal was saying was that it was unable to find exactly what had happened 3½ years before in a highly charged situation and that if Mr Hyland had held her against the wall or raised his voice it was not satisfied it was inappropriate. 
46.	Secondly, Miss Moore challenges the Tribunal’s conclusion about Mr Hyland’s Language to RE.  Some of  it is set out in the determination at P31 and more in her witness statement. The Tribunal pointed out that whether the language was inappropriate depended on exactly what was said and the exact context and that they were not certain of either. Miss Moore’s argument is that the language cannot have been appropriate when used by the manager of children’s home to a child in his care and that the finding that “there may well have been an element of misjudgment in Mr Hyland’s use of (sexualised language)” was perverse. I am not able to accept that submission in the light of the Tribunal’s conclusion that it was unsure precisely what was said and in what context. 
S.B.
47.	Again, I have already referred to SB. The submission is that the Tribunal did not disbelieve Ms Hayman and that it should have gone further than suspecting an element of misjudgment on Mr Hyland’s part. It was not possible to conceive of circumstances when it would have been appropriate for Mr Hyland to use the language that he did. The Tribunal’s conclusions here do seem to me to be somewhat equivocal, but they did say the context was critical and as to this they were uncertain. I am not satisfied that this finding was perverse. 
L.T. and M.C
48.	LT and MC were two youngsters who had a sexual relationship. It began when LT, the girl, who was the elder of the two, was a little under sixteen. The Tribunal said that while the sexual side of the relationship was not condoned and the two were watched as closely as was consistent with their needs for privacy, the emotional relationship was left to develop. The issue between the Inspectorate and the Respondent was whether the Respondent should have allowed the relationship to continue. The Inspectorate said the Respondent should have considered the termination of one of the placements and discussed the matter with the placing authority. The Respondent’s judgment was that the benefits to LT and MC of the relationship outweighed the practical problems for the Respondent. They were satisfied it was not an abusive or coercive relationship. The Tribunal’s conclusion was whilst it was clear the placing authority was told about the relationship it was unclear at what stage, because there was a lack of a proper record of telephone conversations. The Tribunal did not criticise the Respondent’s handling of the problem and concluded that its judgment of how to deal with the relationship was a reasonable one. The only criticism was as to record keeping.
49.	 Miss Moore argued that the Tribunal should have found a serious error of judgment on part of the Respondent. The Respondent was in effect condoning conduct that amounted to a criminal offence (sexual intercourse with a girl under sixteen) and there was a real danger she might become pregnant. My initial reaction to the manner in which the Respondent handled this relationship was that it was in error. The sexual relationship at the start breached the criminal law and there was obviously a risk that LT might become pregnant. The easiest solution would have been to terminate one of the placements. However on reflection this was a complex problem as to which there were several aspects. It has to be borne in mind that the Respondent was dealing with very difficult and disturbed children and there were various considerations in deciding how best to handle the relationship. The broader interests of the children themselves had to be considered. The Tribunal’s finding that the sexual aspect of the relationship was not condoned should be noted. I cannot conclude that the Tribunal’s finding that it was more beneficial to the youngsters to allow their relationship to continue rather than cause trauma by splitting them up was a perverse one. 
M.G.
50.	 MG was fifteen and in November 1999 Mrs Clarke saw marks on his neck that appeared to her to have been caused by a ligature. She was concerned that he may have tried to hang himself. There was also bruising on his chest. She was told by another member of staff that Mr Hyland was responsible. Mr Hyland’s account was as follows. The day before the incident MG, who was capable of considerable violence, had bitten a member of staff and Mr Hyland was discussing that with him. MG became very angry and Mr Hyland took hold of his sweatshirt to protect himself from him but at same time talking to him and saying to him that he could control his violence. Mr Hyland accepted this was not a conventional method of restraint but said that, under the circumstances, it was better because it gave him sufficient control to stop MG hitting him more than once or twice, and it enabled MG to control himself rather than being totally overpowered. He accepted MG’s neck had been marked by the friction from the sweat shirt against the skin and that he had a pinch mark where he had first grabbed him, but he did not accept he had caused any other bruising. He argued that his actions had not been inappropriate and that the incident had been of something of a turning point in the work with MG because, although he remained violent he had been able to control himself. He accepted he had apologised afterwards for the mark and had replaced the sweatshirt.
The Tribunal’s finding was:
“We are not satisfied that Mr Hyland’s account is inaccurate or that his action was inappropriate”

51.	Miss Moore’s argument was that the finding was perverse because it could not have been appropriate for the manager of a residential children’s home to use an unconventional method of restraint that led to injury of the child concerned. It is quite wrong, she contends, to permit departure from established and approved restraint procedures.
52.	Whilst I can see the force of Miss Moore’s argument, it should not be forgotten that the Respondent was caring for some unusually difficult children. Mr Hyland was in several respects unconventional, but it was no doubt partly for that very reason that he was as successful as he was. Given that the acceptance of Mr Hyland’s account is not challenged, I cannot see that the finding should be rejected as perverse. 
Use of crude language
53.	  The Tribunal accepted Mr Hyland used crude language when speaking to staff. In one instance, however, there was a conflict of evidence between Mr Howarth, who alleged Mr Hyland made a sexually explicit comment about Mr Hyland’s foster daughter, which Mr Hyland denies. In this instance the Tribunal accepted Mr Hyland’s denial. Miss Moore argues this is perverse because in every other allegation of sexually inappropriate or crude language the findings were against Mr Hyland. There does, however, seem to me be a good reason for the finding in this instance in that Mr Howarth was unable to remember the context in which the comment was made.  
M.N.
54.	MN had a history of sex abuse against other children. He was not, however, a registered sex offender. He absconded on a number of occasions. On one of them he met two girls who subsequently telephoned to speak to him. The Respondent said on different occasions that it was urging MN’s placing authority to take appropriate action, and that it was premature to take child protection action because MN was only subsequently registered as a sex offender. The Tribunal said that although there had been some contact between the Respondent and the placing authority, the extent of it was unclear because the Respondent did not keep proper notes of telephone conversations. The Tribunal said the Respondent ought to have made the local child protection team aware of the concerns about the young girls. But on the other hand, the local police were aware in general terms of MN’s presence and background and there was no reason to think anything untoward had happened to the girls. The Tribunal concluded this was an issue for advice and did not weigh with them when considering cancellation. In my judgment such a conclusion was justified.
Murray Ronnie
55.	Mr Ronnie was employed by the Respondent for a number of years, but his employment was in breach of the Disqualification for Caring for Children Regulations 1991 as he had been to prison for wounding and assault occasioning actual bodily harm, and written consent for his employment had not been obtained from the Secretary of State. Miss Moore contends that the Tribunal’s finding that failure to obtain consent for his employment was not relevant to cancellation of registration was perverse. This submission was attractive until I looked in a little detail at the circumstances. Mr Hyland’s evidence, which appears to have been accepted by the Tribunal, was that when he employed Mr Ronnie, which was before the homes were registered, he relied on the advice of NACRO. He genuinely, but mistakenly, believed consent was not required. Miss Moore says ignorance of the law is no excuse. But the Tribunal pointed out that part of the blame lay with the Inspectorate. When the home was being registered they issued a form asking for details of all members of staff and asking whether each had been police-checked. In Mr Ronnie’s case the answer was in the affirmative, which was true. The Inspectorate argued that they ought to have been told results of the police checks. The Tribunal concluded the Respondent could not be expected to answer on the form a question that was not asked and that the form needed to be redesigned. The Tribunal went on to say that if the right question had been asked they were confident it would have been answered correctly, because Mr Ronnie’s file showed the Respondent took some trouble to consider whether it was appropriate to employ him in the light of his convictions and had reached a rational decision to do so. The Tribunal also said it was at least possible that the Secretary of State’s consent would have been forthcoming. 
56.	Having considered the surrounding facts as found by the Tribunal, I am satisfied that the Tribunal’s finding that the circumstances of Mr Ronnie’s employment were irrelevant to the issue of cancellation was a justified one. Accordingly, it follows that none of Miss Moore’s seven allegations of perversity is made out.
57.	Next it is said that the Tribunal misdirected itself in having regard to a number of irrelevant facts and that it failed to take into account or give sufficient regard to a number of relevant facts. Miss Moore divides this aspect of her appeal into six headings and I shall deal with each in turn.
No final warning.
i)	In its conclusion the Tribunal said:
“Furthermore, we do not consider we should overlook the fact that the Prospects Organisation has not has the sort of final warning that we would expect before a cancellation procedure is set in motion and the further fact that many of the criticisms emerged for the first time after the procedure had been started.”
58.	This observation was made in a paragraph in the course of which the Tribunal had pointed out (i) that it had to retain a sense of proportion and balance the Respondent’s faults against its positive aspects (ii) that no organisation was perfect and there would inevitably be misjudgments from time to time and (iii) that the homes were dealing with particularly challenging young people.
59.	Miss Moore’s point was that there was no requirement in the legislation for a final warning and that it would be wrong to assume a final warning should always be given before the cancellation procedure is set in motion. To have issued a formal warning would have been to put the interests of the Respondent above the welfare of the children. There were serious concerns about My Hyland’s conduct towards the young people in his care and it was necessary to act quickly without delaying matters by issuing a formal warning. As the Tribunal pointed, out there was no sanction it could apply short of upholding the decision to cancel the registration. Cancellation was a draconian solution with serious consequences for residents, staff and the company itself. The value of a final warning is the opportunity to put right that which has gone wrong and to clarify misunderstandings. In my judgment two types of allegation can arise; conduct that impinges directly on the welfare of the children and conduct which is remediable and if not addressed may impinge directly on the children. In my judgment none of the matters established in the present case was such as to call for immediate closure. There was no finding that Mr Hyland or anyone employed by the Respondent had abused a child. Other things being equal, it is better that deficiencies should be remedied than that a home should be closed. As the Tribunal pointed out none of the matters complained of was so serious that urgent action had to be taken.
60.	The Tribunal was critical of the manner in which the Inspectorate had set about the process of cancellation and in my judgment with good reason. It was not saying that a final warning was an essential precursor to the cancellation procedure, merely that one would have been appropriate in this case. I cannot accept Miss Moore’s submission that the Inspectorate was right not to have given the Respondent a final warning in this case. The Inspectorate’s action must surely be proportionate to the nature of the breaches of the regulations and otherwise unsatisfactory conduct of the homes.
Criticisms emerging after the cancellation procedure had began.
61.	This was really the second limb of the “no final warning” criticism. The Inspectorate accepted that fresh criticism emerged after the cancellation procedure had started but contends that these were but examples of conduct to support an existing case. It is perhaps inevitable in a case such as the present that further matters emerge with time when, for example, proofs of evidence are taken. 
62.	Mr Hyland made the valid point that the Tribunal hearing was itself an appeal and that its purpose was to review the decision of the Secretary of State and decide whether to affirm it or direct it should not have effect. The original decision of the Secretary of State was based in large part on unparticularised generalisations (see letter 25 January 2000). This was the subject of criticism by the Tribunal who pointed out that while it is not necessary for the Inspectorate to have witness statements from all potential witnesses before the Secretary of State makes a decision, it is necessary to obtain and furnish to the Secretary of State sufficient details of those incidents on which they wish the Secretary of State to rely to enable him to make an informed judgment and to provide adequate particulars in the notice of proposal. Inadequate particulars in the notice of proposal were carried forward into adequate reasons for the Secretary of State’s decision. These were not forthcoming until 9 June 2000 and then only with pressure. As the Tribunal observed, these weren’t strictly speaking reasons at all because they included matters that were not known to the Secretary of State until later. Within reason this is not inappropriate because it is desirable that all matters should, where possible, be considered at one time and as quickly as possible. What is not permissible is to do what the Inspectorate did in this case namely to use the time allowed before the statement of the reasons had to be served to construct an entirely new additional case.
63.	In any event it is not suggested that the Tribunal did not consider the late emerging criticism. It plainly did. I find no substance in the Appellant’s compliant about the Tribunal’s comment on the absence of a final warning and late emerging criticisms. Neither of these matters was determinative of the outcome of the appeal. The Secretary of State lost the appeal because the proved allegations taken together were not of sufficient gravity to justify closing down the homes.
Some matters of concern were in part the product of the procedure itself.
64.	The Tribunal said at P53:

“We also bear in mind that some of the matters of concern, particularly those relating to staffing, are at least in part a product of the procedure in itself because the effect of proposing cancellation is not only to cause young people to be removed so that staff are laid off but also to weaken the security of the remaining staff making it more difficult to retain them and recruit good replacements.”
I do not think the Tribunal was here doing other then making a general point. Mr Hyland submitted in argument that the Tribunal was correct in pointing out that the manner in which the Inspectorate had proceeded had had adverse consequences for his business. In so far as there was an issue at the hearing about staff turnover, it appears to have related to the pre-cancellation of registration period. But as I understand it, nothing conclusive emerged. I am unpersuaded that the Tribunal took into account an irrelevant consideration. 
Wrongful disregard of sexual harassment and crude language
65.	Miss Moore referred to five findings of sexual harassment and/or the use of crude language. I have touched on most of these when considering the question of perversity. At this point in her argument Miss Moore says these matters were germane to the issue of cancellation and/or a relevant factor that the Tribunal should have taken into account and not simply disregarded as irrelevant. She argues that the Tribunal failed to take into account the fact the children in Mr Hyland’s care were mainly adolescents. The fact that Mr Hyland had shown himself capable of sexually harassing some of his female staff had to increase the risk that he might also sexually harass the vulnerable adolescent girls in his care.
66.	The Tribunal listened to all the evidence, read the documentary material and formed its conclusions. Mr Hyland entirely accepted that there was a relaxed and open working environment that included a good deal of adult banter in which all the staff participated. What he did not accept, and this was submitted to the Tribunal, was that any of this spilled over into inappropriate areas to the detriment of the children. Importantly, the Tribunal found no evidence that it did. Mr Hyland made the point that the youngsters themselves often presented inappropriate use of language in the way they functioned, and that this was constantly being addressed with them, as the files bear witness. He added that achieving appropriate social interaction skills was a successful area of the Respondent’s work. Mr Hyland pointed out that the Tribunal had a great deal of evidence that was very favourable to the Respondent both from former staff and youngsters who had been at the homes. In my judgment the Tribunal was entitled to conclude, having heard and read all the evidence, that the findings of sexual harassment and crude language did not impinge adversely on the welfare of the children.
67.	Miss Moore specifically challenged the findings at P37 that there was no evidence of sexual inppropriety towards young people, saying there was some towards at any rate SB and RE. I have already referred to each of these children earlier in this judgment and in the light of the Tribunal’s findings of fact I consider the finding of no sexual inpropriety towards them is justified.
68.	 She also specifically challenged the finding that Mr Hyland “did not seriously disrupt the working of the staff to the disadvantage of the young people being cared for in the homes (P37).” This statement was made by the Tribunal with specific reference to the employment tribunal affair. It said that although the affair caused some divisions there was a large group of staff. Again, what seems to me to be relevant is that the Tribunal heard the whole of the evidence and I am unpersuaded by the submission of Miss Moore that the effect on Mrs Curtis, Nick Howarth, Antonia Hayman and Julie Clark was of itself sufficient to require a different conclusion.
Mr Hyland’s credibility 
69.	The submission here is that the Tribunal’s findings of fact inevitably meant that Mr Hyland had lied both to the Tribunal and to the employment tribunal. The Tribunal ought to have taken this into account (i) when evaluating the credibility of other evidence given by Mr Hyland and (ii) in making its overall assessment whether the appeal should be allowed.
70.	I cannot accept that the inevitable inference from the Tribunal’s findings of fact is that Mr Hyland repeatedly lied. The Tribunal’s findings seem to me to have been measured and careful. It is certainly true that there were instances where other evidence was preferred to his evidence and some instances where his judgment was questioned. But I do not read the Tribunal’s decision as raising serious doubt about Mr Hyland’s credibility, certainly not to the extent of rejecting his evidence root and branch or concluding he should not have been running these homes. In my judgment this submission is entirely misconceived. It does, however, perhaps illustrate the extent of the ill feeling between the Inspectorate and Mr Hyland. There is no finding that Mr Hyland failed to act open and honest way in his dealings with the children in his care, their parents or the authorities. 
The children’s welfare
71.	Miss Moore’s complaint is that the Tribunal, having identified a number of respects in which the conduct of the home was unsatisfactory, and whereby the welfare of the youngsters was or might have been effected, should have gone on to conclude that the homes should be closed. If it had given due regard to the welfare of the youngsters it would not have reached the conclusion it did. Due weight was not given to what should have been the paramount consideration – the welfare of the children. In my judgment, however, it is plain that the Tribunal did consider the welfare of the children very carefully. It should not be forgotten that there were minuses and well as pluses for the children if the homes were closed. The Respondent did valuable work with young people and the Tribunal had well in mind that the closure would bring that to an end. The Tribunal had to perform a difficult balancing exercise and I remain unpersuaded that in carrying it out it acted unlawfully.
Conclusion 
72.	The Secretary of State has left no stone unturned in endeavouring to reverse the decision of the Registered Homes Tribunal and I have, under the circumstances, felt it necessary to explore the Tribunal’s findings at some length. This case contains a cautionary tale. The Inspectorate and Mr Hyland got across at each other when they should have been working together towards a common goal. Neither is exempt from blame. Each side seems to have been blind to the position and needs of the other. The Secretary of State, through the Inspectorate, holds a powerful weapon – a trump card – in being able to cancel the registration of voluntary homes. Where, as here, that weapon is used prematurely or inappropriately the consequences can be devastating. The very act of cancellation whether justified or not can (and it appears to have happened here) bring an organisation to its knees. A successful appeal may not undo the damage if in the result the home is closed down anyway. The power to cancel registration is therefore, it seems to me, matched by a great responsibility to see that it is not exercised unjustifiably. 
73.	In my judgment there are no grounds for overturning the decision of the Registered Homes Tribunal. Whilst it found that the Children’s Homes Regulations 1991 had been breached and that there were other unsatisfactory features about the management of the homes, it then had to go on and exercise a discretion to decide in effect whether or not the homes should be closed. In my judgment it explored all the issues with great care and reached the conclusion that the Secretary of State’s decision to cancel the registration of the homes should be set aside. That conclusion was justified in law. The appeal is dismissed.   

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MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down this appeal is dismissed. Now what is the cost position?
MR HYLAND: We would like to make an application for an order for costs, my Lord.  Can I advise you also that there is a Mr Wekes here today to represent the company. We would like to ask for an order for costs, my Lord, in line with the rules as laid out in what I believe you refer to as the White Book Civil Procedure Rules.
MR JUSTICE SCOTT BAKER: Yes.
MR HYLAND: In those rules, my Lord, it allows us to have an expert to help us to calculate our costs and then have them assessed within your order.
MR JUSTICE SCOTT BAKER: Yes.
MR HYLAND: That is what we would like to follow, my Lord, if that is possible?
MR JUSTICE SCOTT BAKER: Yes, I will see what Miss Moore has to say.
MISS MOORE: My Lord, I do not contest the cost application.  I understand my learned friend, Mr Wekes, representing the company, has an application for a summary assessment of costs, if that is still the position I would contest that.  We have not had sufficient notice to be able to deal with the summary  assessment of costs but an order for detailed assessment of the costs would‑‑‑‑
MR JUSTICE SCOTT BAKER: There you are, Mr Hyland, you can have an order for detailed assessment of your costs.
MR HYLAND: Thank you very much, my Lord.
MR JUSTICE SCOTT BAKER: Yes, Mr Wekes, what is your position?
MR WEKES: My Lord, our position is that we ask for our costs to be summarily assessed today.  We have supplied the court with a statement of costs which has recently been updated and slightly reduced.
MR JUSTICE SCOTT BAKER: Have you given it to the other side?
MR WEKES: We have, my Lord.
MR JUSTICE SCOTT BAKER: When?
MR WEKES: It was yesterday, my Lord. It was only yesterday when we found out that judgment was being handed down today.
MR JUSTICE SCOTT BAKER: Yes. Well, your clients did not take any part in proceedings, did they?
MR WEKES: No, my Lord.
MR JUSTICE SCOTT BAKER: No.  What is your position, Miss Moore, about this?
MISS MOORE: Well, my Lord, we were sent a fax of the costs at four o'clock yesterday afternoon which did not  have any dates on it.  My solicitor faxed back when she returned from court at 5.15 saying, "Please could we have the dates?" We obtained a fax this morning at nine o'clock with dates on it and with some amendments to the original bill of costs, making adjustments to it.  There are some items that we can show from the correspondence files that do not match up.  We have only had a very limited opportunity to do a cross‑referencing exercise. The practice direction does say that we should be entitled to a minimum of 24 hours notice.
MR JUSTICE SCOTT BAKER: Yes. So you would like a detailed assessment?
MISS MOORE: My Lord, we would, particularly since there is going to be a detailed assessment of Mr Hyland's costs in any event, it would seem sensible that both sets of costs be assessed at the same time.
MR JUSTICE SCOTT BAKER: That seems fair, Mr Wekes, does it not?
MR WEKES: My Lord, I am just concerned about the additional costs of a detailed assessment.  The costs claimed by my client are not enormous, they are just over £9,000, given the considerable work that must have been incurred in preparing the respondent's notice and the quite detailed written outline.
MR JUSTICE SCOTT BAKER: Well, another way round,  Miss Moore, might be to give you or your side proper time to consider the figures put forward on the summary assessment and the matter could be referred back to me when that has happened?
MISS MOORE: My Lord, yes, that could be done if your Lordship thinks that is a more convenient way than dealing with it by way of detailed assessment.
MR JUSTICE SCOTT BAKER: It is an awful waste of money, is it not, to have a detailed assessment on what looks like a relatively small figure, it is going to be under £10,000 anyway.
MISS MOORE: Well, my Lord, if we had an opportunity to go through in detail we would expect to be able to agree most of it.  It is difficult to anticipate whether the costs of coming back to your Lordship for a detailed assessment would be greater than the costs of agreeing costs by way of a detailed assessment.
MR JUSTICE SCOTT BAKER: In reality you will probably agree the costs anyway, will you not?
MISS MOORE: There are certain items here, I have the fax in front of me, which we would not agree. But most of the items I do not think there would be an issue about.
MR JUSTICE SCOTT BAKER: I think I will adjourn your application, Mr Wekes, with liberty to both sides to apply to me for a summary assessment in the event that  you cannot agree.  You then have the opportunity of coming back to me, but there may be a costs risk attached to doing that.  So you will have to take a view as to whether you want to do that or go for a detailed assessment. How would that do?
MISS MOORE: My Lord, that is a satisfactory way forward.
MR WEKES: Yes, my Lord.
MR JUSTICE SCOTT BAKER: There is one other matter and that is, Mr Hyland, you were provided with a draft of the judgment in advance, as were the solicitors and counsel for Prospect Care Services, but you were provided with it on the strict understanding that you were not to disclose its contents to anybody.  My understanding is, from what I have been told, that you have been talking about it to people.
MR HYLAND: I have not disclosed the contents of it, my Lord, forgive me. I contacted Price Waterhouse and obviously we have discussed with our own people et cetera the decision.  I apologise most sincerely if that‑‑‑‑
MR JUSTICE SCOTT BAKER: I think it was made absolutely plain that the contents of the draft judgment were not to be disclosed to anybody. This is the difficulty when a litigant in person is given the same facilities as  counsel and solicitors on the other side. If this sort of things happens the net result is that the judgment cannot be disclosed in advance.
MR HYLAND: Forgive me, my Lord, I apologise.  The decision itself we discussed with people, it is relevant to so many people but the content of the ‑ forgive me if I have misunderstood, I do apologise.
MR JUSTICE SCOTT BAKER: Yes. I do not know if any problem has arisen at your end on this, has it, Miss Moore?
MISS MOORE: I believe my instructing solicitors were informed of the result of the judgment by one of their clients, who had been informed by Somerset of the result I believe by Mr Hyland.  Save for that small embarrassment I do not believe there were any particular difficulties.
MR JUSTICE SCOTT BAKER: Yes.  Of course being a government department I think the practice is that solicitors and clients ‑ you could tell your clients.
MISS MOORE: My Lord, it was just a matter of timing that was all.
MR JUSTICE SCOTT BAKER: Yes, there it is.  I draw attention to this because it obviously highlights a particular problem when there is a litigant in person on one side.  What the answer is, I do not know.  But Mr  Hyland has apologised and it may be that there has been a misunderstanding.
MR HYLAND: Yes, most sincerely, my Lord, I do apologise.
MR JUSTICE SCOTT BAKER: Yes, thank you.