Royal Courts of Justice
The Strand
Thursday 4 February 1999
B e f o r e:
– v –
Ex parte B, O, U and V
Computer Aided Transcription by
Smith Bernal, 180 Fleet Street, London EC4
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(Official Shorthand Writers to the Court)
(As Approved by the Court )
A P P E A R A N C E S :
MR EDWIN GLASGOW QC and MR MICHAEL BOOLS (instructed by The Treasury
Solicitor) appeared on behalf of THE APPLICANTS
(instructed by Mr Philip Ridd, Solicitor to the Inquiry, PO Box 18031
London EC3V 9JB) appeared on behalf of THE RESPONDENTS
MR MICHAEL LAVERY QC and MR SEAMUS TREACY (instructed by Messrs Madden
& Finucane, Belfast BT1 1HE) appeared on behalf of
& Co, London NW1 7HJ (London agents for McCartney & Casey, Derry 3))
appeared on behalf of THE SECOND INTERESTED PARTY
Thursday 4 February 1999
1. MR JUSTICE COLLINS: On 28 January I heard an application on behalf of four soldiers who are due to give evidence before what has been described as the “Bloody Sunday Inquiry”, that is to say the inquiry into the shootings in Derry in 1972 in the course of which 13 civilians were killed and 13 wounded when members of the armed forces opened fire on them with live rounds. As is well known, Lord Widgery CJ was asked, and agreed, to carry out an inquiry shortly after the shootings. That inquiry was held subject to the provisions of the Tribunals of Inquiry (Evidence Act) 1921. Lord Widgery’s report was produced on 18 April 1972. The conclusions that he reached in that report have never been accepted by the families of those who were killed and wounded. Ever since, they have pressed that the matter should be re-opened specifically because it is their belief that the shootings never should have taken place and that the soldiers involved were guilty of unlawful acts.
2. A degree of fresh evidence has come to light since 1972. As a result of that, and the concerns to which I have referred, the present Government through the Prime Minister agreed that a fresh inquiry should be held. The announcement to that effect was made on 29 January of last year. In making his announcement the Prime Minister said this:
“The hearings are likely to be partly here and partly in Northern Ireland, but again that is largely for the tribunal. Questions of immunity from prosecution for those giving evidence to the inquiry will be for the tribunal to consider in individual cases and to refer to the Attorney General as necessary. The inquiry will report its conclusions to the Secretary of State for Northern Ireland and our intention is that they will be made public.”
3. The statement concluded with these words:
“I believe that it is in everyone’s interests that the truth be established and told. That is also the way forward to the necessary reconciliation that will be such an important part of building a secure future for the people of Northern Ireland.”
4. The importance of this inquiry, and the importance of it being accepted as a fair and impartial inquiry into the events of Bloody Sunday is fundamental, and nothing that I say in the course of this judgment must be taken in any way to seek to belittle the fundamental importance of those considerations to which I have just referred.
5. The soldiers in question are concerned that their anonymity should be maintained. They have asked the tribunal that when they give evidence they should be referred to not by name but by a letter only, and that their addresses should also not be disclosed. The reason that they wish this is because they say they are afraid that if their identities are discovered they will be the subject of reprisals and their lives are likely to be in danger. They have no specific grounds; none of them has any individual evidence of threats or anything like that. But the general background and the general circumstances of what has gone on and what is going on still in Northern Ireland make them afraid on reasonable grounds, they say, that without anonymity they would be likely to be in danger. They presented their arguments to the tribunal. They were supported by the Ministry of Defence which was acting in the interests of those soldiers who had not yet been identified and had not yet had statements taken but were likely to be called to give evidence. Essentially we are concerned with soldiers who fired live rounds (although the matter may not be limited to such soldiers).
6. The tribunal received their representations ( which were in writing) and sought also representations on the point from those representing the families of victims of the shootings. Before me (and it matters not why), those representations have come from two separate parties, one represented by Lord Gifford QC, and the other by Mr Lavery QC of Northern Ireland, who was admitted with his junior to the English Bar this morning especially for the purpose. I am very glad to see them here, and equally glad to note that it is a relatively simple matter for those practising at the Northern Irish Bar to be able to practise at the English Bar, and I have reason to believe that it works the other way round as well (but that is perhaps by the way). They made submissions to the tribunal that it was essential if the tribunal was to carry out its functions properly that the identities of the various soldiers be known. They pointed out that justice had to be done in public and that the normal practice was that those who gave evidence before a court or a tribunal should do so in such a way that everyone knew who they were. They accepted that there were circumstances which required anonymity in individual cases, but they submitted to the tribunal that this was not such a case and that none of the soldiers had any specific grounds for suggesting that he needed anonymity for a good reason. Furthermore, they submitted that it was indeed essential that the tribunal continued to receive the goodwill of the population of Northern Ireland, particularly those most directly affected by the events of Bloody Sunday and that, if a general anonymity were granted to the soldiers, this would undermine that goodwill and would mean that the findings of the tribunal were less likely to be accepted. I am not covering all the arguments that were put before the tribunal; it is not necessary to go into great detail. Suffice it to say that the tribunal decided in due course that there should be no anonymity as requested by the soldiers. The furthest that they were prepared to go was to permit surnames only to be given, without Christian names and without addresses. One of the points that is taken is that that is the worst of all worlds because if there were any ill-disposed persons who sought harm to any of the soldiers, that would be to run the risk that innocent persons of the same surname who happened be in the regiment at the same time might be the subject of attack.
7. Be that as it may, the challenge that is now brought is based essentially on two grounds. First, it is said that there was procedural impropriety: the applicants were not able to make full and proper submissions because they had asked that any detailed submissions be permitted to be given in camera; they were reluctant to make such submissions since they would be publicised because everything that is presented to the tribunal is placed on the internet and so is immediately made public. Further, it is said that the tribunal reached its decision after one of its members had gone back to New Zealand before a relevant submission made by the applicants had been properly (or indeed at all) considered by the tribunal. Secondly, it is submitted that the decision itself was on various grounds one which could not reasonably have been reached by the tribunal.
8. When that matter came before me last week it was on the basis that there would be a formal application for leave on notice, but that procedurally the court’s leave was sought to enable the applicants to be described by initials only on the basis that the court was aware of their true identity but that no one else should be. I acceded to that application. I had had an opportunity to read the papers and had formed the clear view that the claims made were arguable. Accordingly I suggested that I should give leave nisi (for want of a better word), and I made an order that leave would issue unless by close of business on Tuesday the respondents indicated that they wished to appear and challenge the grant of leave. I did that because it was clear to me that if there was an arguable case, it was essential that the matter was dealt with by the court as soon as possible since otherwise the working of the tribunal might well be held up. It was essential that the soldiers should know the basis upon which they were required to give evidence and whether or not they were going to be permitted anonymity before they made statements. Mr Clarke QC, on behalf of the tribunal, has underlined the need for expedition and indeed arrangements have, as I understand it, been made for the matter to be heard before the end of this month, assuming I am persuaded that the matter should go ahead.
9. Today Mr Clarke on behalf of the tribunal (who are the only respondents to this application) has not sought to submit that the points made by the applicants are unarguable. He has not sought to argue that there is not an arguable case. Accordingly, on one view that would have been the end of the matter because the only person entitled to be heard on the application for leave is normally the potential respondent. There is authority which shows that in certain circumstances other parties have been permitted to appear: see Mass Energy v Birmingham City Council [1994] Env LR 298. But it is rare in the extreme for that to be permitted and for my part I would doubt that there were ever likely to be circumstances when a court would entertain applications from a person who was not a respondent, but was a person who had an interest in the proceedings, whether or not that person was directly affected within the meaning of Order 53, rule 5(3).
10. The ex parte application which is attended by a respondent is itself a creature not covered by the rules. The practice has grown up, and it is convenient and sensible in many cases, of permitting that to happen. It is particularly valuable, for example, when an application is based on factual assertions which may or may not be accurate. The court is often assisted by having the respondent to discover whether there is anything in the factual assertions. Equally, sometimes it is not altogether clear what is the basis for the judicial review. It may be helpful (particularly where litigants in person are concerned) to have the potential respondent come to explain the situation. Those examples are by no means exhaustive, but the scope for inter partes ex pate hearing is limited and there is always a danger that a considerable time can be wasted in arguing whether leave should be granted in cases where the issue is better left to the substantive hearing.
11. Having said that, I was prepared in the very exceptional circumstances of this case to listen to submissions from Lord Gifford and from Mr Lavery. The submissions that they were putting forward were two-fold: first, that they were directly affected within the meaning of Order 53, rule 5(3), and thus should become parties to the proceedings and should be served with the proceedings as parties; secondly, that this court had no jurisdiction to deal with this judicial review application and that the only court which had jurisdiction was the High Court of Northern Ireland. In the alternative, it was submitted that there was concurrent jurisdiction and this court ought not to assume jurisdiction, but should leave the applicants to seek relief before the High Court of Northern Ireland. Mr Glasgow QC submitted that the parties whom Lord Gifford and Mr Lavery represent had no locus standi to appear, and thus were not entitled to make such submissions. Indeed, he categorised the position as quite extraordinary and effectively impossible because here were persons who had no right to be heard coming to argue that the court should not hear an application which it had jurisdiction to hear and in circumstances where the respondents to the application were not submitting that the court should not deal with it. Put in that way, the logic of Mr Glasgow’s submission can be seen. But it is not quite as simple as that. I am dealing with an exceptional case in as much as there is a need for this issue to be dealt with as soon as possible. It is quite plain that those whom Lord Gifford and Mr Lavery represent are very concerned — and understandably and rightly so — about the issues that arise. More particularly, there is a feeling (and it is not suggested, nor is it argued that it is a feeling which is based on any real justification in the sense that there is any reality in it) which is widespread that the English authorities should not be seen and should not be permitted in any way to appear to be running or overseeing (whatever word one likes to use) the way in which the tribunal carries out its functions. The only way that the trust of the local population in the integrity of the tribunal can be maintained is if the control of it (if control be needed at any stage) is in the hands of the Northern Irish High Court. Since it is submitted at the very least that the Northern Irish High Court must have jurisdiction (whether or not the English court does), it is manifestly in the interests of justice overall that the Northern Irish High Court deal with the matter and not the English High Court. That, in short (and I hope I do not do it injustice) is the concern that is expressed on behalf of the interested parties.
12. It seems to me that the correct way in which I should approach this is on the basis that I have granted leave to move, and because of the urgency I am dealing effectively with an interlocutory application by Lord Gifford and Mr Lavery’s clients to be permitted to attend at, and be heard in, the judicial review. If that application is granted, as it is (without prejudice at the moment to whether they are to be treated as directly affected), then they are entitled to and are making an interlocutory submission that this court has no jurisdiction and that because of that the leave that I have granted should be set aside. That is a somewhat cumbersome way of looking at the matter, but technically I think it enables the interested parties to be heard and to be heard within at least the spirit of the rules. In any event I am content to treat it on that basis.
13. Mr Glasgow submitted that it was inconceivable (or at least that he could not conceive of any case) where a party would be entitled to make submissions and then come and say “You should not continue with this case, albeit the parties directly concerned in it do not submit that you should not”. True, that is a strange situation, but if the reality is that the court has no jurisdiction then the court must give effect to that, whether or not the parties directly concerned before it take the point. If there is no jurisdiction, the court cannot act. No one can confer jurisdiction upon the court by agreement unless there is some provision which expressly permits that to happen, and there is none such here.
14. Equally, it seems to me in principle that, even if the court has jurisdiction, if it is persuaded that that jurisdiction should be declined in favour of another court which has jurisdiction and can deal with the matter more expeditiously or more in the interests of justice, then it may be that it would be proper for the court to give effect to that by making an order which, in effect, declines jurisdiction over the case. Again I can see no reason in principle (although it would be a very exceptional set of circumstances where it was proper to do it), why the court, if persuaded that that was correct, should not give effect to it, notwithstanding that the parties directly concerned were not urging the court to do any such thing. Particularly in a case such as this, where the issues are so sensitive and where the ability of the tribunal to maintain the trust of those who are going to be affected by its decision are equally important, it seems to me that the court should be able, if satisfied that it is in the interest of justice to do so, to give effect to what is submitted on behalf of the interested parties.
15. Before I turn to the jurisdictional issue, I should deal with the question whether the interested parties are indeed directly affected. Order 53, rule 5(3) reads:
“The notice of motion or summons must be served on all persons directly affected ….”
16. Order 53, rule 9(1) provides:
“On the hearing of any motion or summons under rule 5, any person who desires to be heard in opposition to the motion or summons, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with notice of the motion or the summons.”
(If he has been served, there is equally no reason why he should not be heard. Rule 9 is not limited to persons who have not been served). I have no doubt at all that the interested parties are proper persons to be heard and I will certainly direct that they should be heard before the Divisional Court. They have been served with all the relevant papers, and I have made directions which enable them to put in evidence should they wish to do so.
17. The importance of the question whether they are directly affected within rule 5(3) is that it may affect whether they have any appeal rights against any decision that is ultimately made. If they are merely proper persons to be heard within rule 9, then they do not have such rights. If they are directly affected, then they may.
18. That they are affected by the decision in the sense that it is a decision in which they have an interest and which may have some effect upon the manner in which their case is presented and their representatives are able to probe and to test the evidence given by the soldiers is undoubtedly true. They therefore can be regarded as persons affected. But are they directly affected? The word ‘directly’ must be given its proper weight. The House of Lords in R v Rent Officer Service and another, ex parte Muldoon [1996] 1 WLR 1103 had to consider the meaning of Order 53, rule 5(3). A narrow construction was placed upon it. The case concerned housing benefit. If the decision was made in a particular way, the Secretary of State would have a liability to make further payments to the local authority and so the Secretary of State maintained that he was directly affected by the decision because it could result in him having to incur an extra liability. The House of Lords said he was not directly affected. At page 1105E Lord Keith, who gave the only reasoned speech, said:
“That a person is directly affected by something connotes that he is affected without the intervention of any intermediate agency. In the present case if the applications for judicial review are successful the Secretary of State will not have to pay housing benefit to the applicants either directly or through the agency of the local authority. What will happen is that up to 95 per cent of the amount paid by the local authority to the applicants will be added to the subsidy paid by the Secretary of State to the local authority after the end of the financial year. The Secretary of State would certainly be affected by the decision, and it may be said that he would inevitably or necessarily be affected. But he would, in my opinion, be only directly affected by reason of his collateral obligation to pay subsidy to the local authority.”
19. Lord Keith then went on to consider an old case In re Salmon (1889) 42 Ch D 351 in which the Court of Appeal had decided that a third party who had taken part in proceedings at first instance was not a party directly affected by an appeal. That was a case in which the judge had found in favour of the defendants, and so the third party proceedings had not materialised because there was no indemnity to pass on to the third party. The plaintiffs appealed and the third party argued that it was directly affected by the appeal because if the appeal was allowed then it would have a potential liability to the defendant. The Court of Appeal decided that it was not directly affected within the meaning of the then rules dealing with appeals which differentiated (as they still do) between parties directly affected and parties who are not directly affected: see Order 59, rule 3(5).
20. The decision as to whether or not the soldiers should have anonymity is not one as far as I can see that conceivably can be said directly to affect the interested parties. The only persons it directly affects are the soldiers. Of course it indirectly affects them; of course they are interested in it; and of course for that reason they must be permitted to appear and be permitted to put forward arguments on the substantive application under rule 9. I suspect that Lord Keith and their Lordships would have sought a wider construction of “directly affected” if there were no such rule as rule 9(1), but that is the protection of those who do have an interest in the proceedings and whom the court decides should be permitted to be heard. It seems to me that it would be quite wrong for me to extend the meaning of “directly affected” in order to cater for this case. Lord Gifford submitted effectively that in the case of a tribunal, one is dealing with an inquisitorial regime rather than an adversarial; that those who are permitted to appear by the tribunal should be regarded as equivalent to the parties; and that since they clearly had an interest in the decision that was made about anonymity and it affected them, then in this context they should be regarded as directly affected. While I see the attraction of that approach, in my judgment it does not serve to affect the meaning of “directly affected” as set out by the House of Lord ex parte Muldoon . Accordingly, I am quite satisfied that they do not fall within Order 53, rule 5(3).
21. I turn to jurisdiction. Lord Gifford submitted that there was no jurisdiction in this court. He drew attention to the words in which the tribunal was set up and to the fact that the concern of the tribunal was with events in Northern Ireland; it was to report to the Secretary of State for Northern Ireland; and it was set up for the people of Northern Ireland (in particular those whose relations had suffered or been killed as a result of the shootings). Accordingly, the “centre of gravity” (to use the words of Mr Glasgow adopted by Lord Gifford) was Northern Ireland. Lord Gifford submitted that the High Court of Northern Ireland was the court which had jurisdiction to control the activities of the tribunal (in as much as they were subject to such control by the court).
22. It seems to me that, although one sees the force of that approach, it does not accord with the realities of the jurisdictional situation. The fact is that this is a tribunal which was set up by resolution of the Houses of Commons and Lords and is subject to the procedure of the 1921 Act. It is based in London where it has offices; its centre is in London. True it is that it is likely to carry out its public hearings, which I understand are fixed to commence at the end of September of this year, in Northern Ireland (although there have been applications, which I think have not yet finally been decided, that some hearings may take place in London). Be that as it may, the bulk of the hearings will inevitably take place in Northern Ireland. Nonetheless, the gathering of evidence is taking place at the moment and, as I say, the tribunal is based in London. The applicants are concerned by a decision which was made by the tribunal in London. The applicants themselves are within the jurisdiction of this court and have sought the assistance of this court. It seems to me that it is plain beyond any doubt that the English court has the right and the power to control the actions of a body such as this tribunal, which is itself based within the jurisdiction and whose actions which are the subject of this application for judicial review took place within the jurisdiction. The soldiers are concerned for the protection of their rights: that they be not compelled to give evidence before this tribunal (whether in London or Northern Ireland) on terms which they regard as unlawful, namely that they should have to give such evidence without the right to the anonymity which they seek. I do not of course indicate whether that contention is right or is not. That is a matter that will have to be decided in due course, but that is the right they are seeking to protect. It seems to me quite clear that that arises within the jurisdiction of this court and is properly to be considered by this court. I therefore reject the submission that the court has no jurisdiction.
23. The question then arises, whether there is concurrent jurisdiction. It seems to me that the Northern Irish court may well have jurisdiction to deal with matters arising in Northern Ireland so that when the tribunal sits in Northern Ireland, or if the tribunal carries out any action in Northern Ireland which the person affected contends is unlawful, then the Northern Irish court would be prima facie the right forum to deal with that matter. I appreciate that the upshot of this may be that there is scope for some applications to be made to this court and some to the Northern Irish court. It is said that that would lead to the possibility of conflicts between the two courts. I like to believe that the chances of that are remote in the extreme. The law to be applied is the same, whether it is before the Northern Irish or the English court. The decisions of the Northern Irish court, which, as has been pointed out correctly, has considerable expertise in dealing with the very difficult issue as to whether anonymity should be granted in individual cases, will be treated with the greatest respect, I have no doubt, by the court of this country. Equally, I would hope, and would anticipate, that the Northern Irish court would treat decisions of this court with the greatest respect and each would follow the other’s decisions unless there was a very good reason indeed to decide to the contrary. Accordingly, it does not seem to me that questions of conflict should in any way determine or be seen as a factor in determining the proper court.
24. It seems to me that it is not necessary for me to decide in terms whether there is concurrent jurisdiction over this application. I am inclined to think that probably there is not in as much as this decision was a decision in England by a body based in England and affecting the rights of persons subject to the jurisdiction of the English court. But I am prepared to assume for the purposes of argument at this stage that there is concurrent jurisdiction and I have applied my mind on that assumption to whether it would be proper for this matter to be dealt with by the Irish rather by the English court. I am satisfied that there are no good grounds for deciding that it should. The principles to be applied are not easy to determine, largely because this is a situation which has not arisen directly in other cases. Of course questions of forum conveniens arise quite regularly, but that is where there are issues between parties. Here there is no direct issue between parties. The question arises in relation to a decision of an inquisitorial tribunal. But it seems to me that it is reasonable to adopt the approach which is adopted in cases concerning forum conveniens and to obtain some guidance from cases relevant in that field. There has been cited to me the case of Spiliada Maritime Corporation and Cansulex Ltd [HL] [1987] 1 AC 460, the circumstances of which are not material. It is the principle, which is spelt out by Lord Goff, that is important. At page 476C he says:
“In my opinion, having regard to the authorities (including in particular the Scottish authorities), the law can at present be summarised as follows.
(a) The Basic principle is that a stay will only be grated on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.
(b) As Lord Kinnear’s formulation of the principle indicates, in general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay …. It is however of importance to remember that each party will seek to establish the existence of certain matters which will assist him in persuading the court to exercise its discretion in his favour, and that in respect of any such matter the evidential burden will rest on the party who asserts its existence. Furthermore, if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country.”
25. Pausing there, that is not of direct application for the reasons I have indicated: these are not adversarial proceedings, nor is it relevant to talk in terms of burden of proof. It is necessary to remember that the applicants have chosen this court; this court undoubtedly has jurisdiction; and so far as the parties directly concerned (i.e. the applicants and the respondents), it is accepted that this is the right court to deal with the issue. That is, as it seems to me, an important factor that I have to take into account. Although it may not be helpful to talk in terms of burden of proof, it does seem to me that a strong case should be shown to justify the removal of these proceedings to Northern Ireland if the Northern Irish court has jurisdiction.
26. At page 476F Lord Goff deals with the question whether the choice of the plaintiff (or as here the applicant) is a matter which should be considered of importance and what weight should be attached to it. He cites a Canadian authority which says:
“unless the balance is strongly in favour of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”
27. Lord Goff continues:
“This is strong language. However, the United States and Canada are both federal states; and, where the choice is between competing jurisdictions within a federal state, it is readily understandable that a strong preference should be given to the forum chosen by the plaintiff upon which jurisdiction has been conferred by the constitution of the country which includes both alternative jurisdictions.”
28. I appreciate that the analogy is not exact, but it seems to me that it is relatively close because we are concerned with two jurisdictions within the United Kingdom and a tribunal which was set up by decree of the United Kingdom Parliament and which has functions to carry out in both England and Wales (and perhaps Scotland) and Northern Ireland. In those a circumstances if the court of a particular part of the United Kingdom has jurisdiction, and if an applicant chooses to go to a court in that part of the jurisdiction, it would, in my judgment, take a very strong case indeed to persuade the court that has jurisdiction in that part to decline jurisdiction in favour of the court in another part of the United Kingdom.
29. While I recognise the concern of the interested parties, and more particularly the feelings that exist which doubt (I use no stronger word) the impartiality of the English court, nonetheless I do not overall regard it as a case where there is shown a strong enough ground to justify this court declining jurisdiction. I am fortified in that view by my consideration that it may well be that the Irish court does not in fact have jurisdiction over this particular application. It may be that the contrary is also the case: that in regard to matters that happen in Northern Ireland, where the Northern Irish court would have jurisdiction, the English court might not, even though the tribunal was based here. But I do not have to decide that.
30. Accordingly, in my judgment, this case should continue to be heard within this jurisdiction and by the Divisional Court. I reject the arguments put before me by Lord Gifford and by Mr Lavery. I did wonder whether I should approach these arguments on the basis of arguability or whether I should make a decision. As is plain from the terms in which I have given judgment, I have made a decision and I have gone beyond mere arguability, but of course the greater includes the less. If, in reality, I should only have been considering whether the points are arguable, then manifestly they are. But nothing that I have said will prevent anyone seeking to persuade the Divisional Court that they should not grant relief when the matter comes before them but should leave it to the Northern Irish court to deal with the matter if the applicants are advised that they should pursue the matters before that court. It seems to me that perhaps when the matter comes before the Divisional Court (unless that court it persuaded that it has no jurisdiction) the question is best left to discretion to grant relief than a case analogous to forum non conveniens. But that is a matter for argument in due course if the argument is taken further.
31. LORD GIFFORD: My Lord, might I raise first just to make one application in case we need it and are entitled to it? We may have to consider on this question of jurisdiction whether the proper course is to appeal what is in essence an interlocutory judgment by your Lordship or whether to revise it before the Divisional Court. In case we think the former is the right course, may we have leave to appeal?
32. MR JUSTICE COLLINS: No. Nor do I think it is even arguably the right course. It can only delay things. You are not precluded from putting the argument before the Divisional Court and it would be manifestly wrong, in my judgment, even to think in terms of appealing. You have got your remedy by putting the matter to a higher court, the Divisional Court.
33. LORD GIFFORD: My Lord, we will weigh that view with great care.
34. MR GLASGOW: Your Lordship has been good enough to make all the necessary directions, I think.
35. MR GLASGOW: If anybody thinks you have not, now would be the time or for ever hold thy peace because it really would be unfortunate to have to come back.
36. MR JUSTICE COLLINS: I think everything is covered.
37. MR GLASGOW: My Lord, I am sure it will not arise, but to tie up loose ends would your Lordship reserve the costs for what it is worth?
38. MR GLASGOW: There may be none, I do not know, but I certainly do not want to take the court’s time with that now.
39. MR JUSTICE COLLINS: No, it is not normal to award costs on these leave applications. I rather twisted things —
40. MR GLASGOW: No, your Lordship has dealt with it very helpfully, but obviously there are implications in costs. I have no doubt that they can be settled without troubling the court, but if necessary will your Lordship reserve them?
41. MR JUSTICE COLLINS: Yes, I think that is probably sensible. Yes. I have to fill out a form giving my reasons why I am not giving leave to appeal. I do not think you have a right of appeal anyway, since you are only an interested party. I have put: “This appeal would be unjustified and would waste time (assuming appeal would lie at all since would be appellants are only within Order 53, rule 9: see ex parte Muldoon ) as the arguments can be put before the Divisional Court in due course”.