Neutral Citation Number: [2014] EWCA Civ 1132

Case No: A2/2013/3242
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Queen’s Bench Division
Tugendhat J
[2013] EWHC 3177 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 1st August 2014
Before :

THE MASTER OF THE ROLLS
LADY JUSTICE SHARP
and
LORD JUSTICE VOS
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Between :

	PNM	Appellant	
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	TIMES NEWSPAPERS LIMITED AND ORS	Respondents	
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(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Manuel Barca QC and Hannah Ready (instructed by Collyer Bristow) for the Appellant
Adam Wolanski (instructed by Times Newspapers Legal Department) for the Respondents

Hearing date: 18 June 2014
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Judgment
Lady Justice Sharp : 
Introduction
1.	On 22 October 2013 Tugendhat J refused an application for an interim non disclosure order (a privacy injunction) by the appellant, described in these proceedings as PNM.  He is an individual living in the Oxfordshire area. The application was made on 15 October 2013 against the publishers of The Times (TNL) and one of its senior journalists, Andrew Norfolk, and against the publishers of a local newspaper, the Oxford Mail, and one of its journalists, Ben Wilkinson. 
2.	The non-disclosure order sought to prevent the disclosure of a number of categories of information. Essentially, however, the appellant wanted to prevent publication of the fact of his arrest on 22 March 2012 on suspicion of committing serious sexual offences against children and associated information, which would lead to his identification as the person so arrested (‘the information’) because of his fear of the damage that such publications may cause to him and members of his family, including his children. 
3.	The information had been referred to on a number of occasions in open court in earlier criminal proceedings to which the appellant was not a party, but publication of it had been temporarily postponed by orders made at the appellant’s request under section 4(2) of the Contempt of Court Act 1981.  The application for a privacy injunction was made in the expectation that those orders would be lifted.  
Factual background
4.	I can summarise the background which led to the application, because the relevant material has been comprehensively dealt with in the judgment below, albeit the judge omitted some of the detail so that his judgment could be a public one whatever the ultimate outcome, in accordance with the guidance given in JIH v News Group Newspapers Limited [2011] EWCA Civ 42, at paragraph 21 (9). 
5.	The appellant was one of a number of men arrested in March 2012 in connection with ‘Operation Bullfinch’ a Thames Valley Police investigation into allegations of child sex grooming/prostitution in the Oxford area. After his arrest the appellant was released on bail. I should say at the outset that the appellant has never been charged with any offence as a result of that investigation, and on 25 July 2013, he was notified by Thames Valley Police that he was to be released without charge i.e. that he was ‘de-arrested’, but that his case would be kept under review.  
6.	However, nine men were charged, and their trial R v Jamil and ors (‘the criminal trial’) took place over the course of four months at the Central Criminal Court before HH Judge Rook QC between January and May 2013. On 14 May 2013, seven of the defendants were convicted of numerous very serious sexual offences, including rape and conspiracy to rape children, trafficking and child prostitution. Both the criminal trial and the investigation which led up to it have been the subject of widespread publicity in the media, both nationally, and at a local level in the Oxford area.
7.	A section 4(2) order was first imposed following a request by the appellant’s representatives, at a hearing at the Wycombe and Beaconsfield Magistrates’ Court on 24 March 2012. That order was continued at the same court, at a further hearing on 12 June 2012. It prohibited the disclosure of details of the applications made to the court by Thames Valley Police (which concerned certain of the appellant’s property) until the appellant was charged with any criminal offence relating to the investigation. It seems that the appellant was named in open court on the second occasion, but not the first, and he was also named in the order. Mr Wilkinson was present on the first occasion, and TNL were represented on the second occasion. 
8.	The appellant was not a party to or witness at the criminal trial. But during the course of the investigation leading to it, one of the complainants who gave evidence at the criminal trial, who I shall refer to as B, told the police that a man with the same first name as the appellant had been one of her abusers. She subsequently failed to pick the appellant out at an identification procedure. 
9.	The appellant applied for a further section 4(2) Order on 25 January 2013, shortly before B was due to give her evidence, on the ground that her evidence might implicate him as her abuser, and there would be a substantial risk of prejudice to the administration of justice (his right to a fair trial) if she did so. At that stage he argued the matter on the basis that proceedings against him were active (pending or imminent). The Oxford Mail opposed the application. Judge Rook made a section 4(2) order covering reports of the criminal trial (‘the Order’).  As subsequently varied by him on 4 February 2013, the Order prohibited the publication of any report “which refers to evidence presented in these proceedings against Jamil & Others which may identify or tend to identify, by any means [the appellant] until further order.” In the event B said in her evidence that she had been abused by a particular man, referring to him by a first name, which was the same as the appellant’s.
10.	It is common ground that after the Order was made, there were references to the information before the jury. The appellant’s full name was referred to by a police officer who said that B had failed to pick the appellant out at a police identification procedure; and it was mentioned in the course of cross-examination, in closing speeches and in the summing-up. 
11.	There were then three further hearings relating to the Order: on 8 May 2013, 15 May 2013 and 24 September 2013 at which the respondents (the Oxford Mail at the first hearing, and the respondents jointly after that) invited Judge Rook to lift the Order. 
12.	At each of those hearings, as at the first such hearing, the information was referred to in open court, in submissions, oral and written, and in the rulings made by Judge Rook. His last ruling after the September hearing was circulated to the parties by email on the 14 October 2013 but its formal handing down was deferred to await the outcome of the application for the privacy injunction (though the ruling was seen by Tugendhat J and has been seen by us).

The application for a privacy injunction
13.	Evidence relevant to the application was put before the judge by the appellant and the respondents. No Particulars of Claim had yet been formulated, but the appellant based his claim squarely on the tort of misuse of private information,  the relevant principles of which are summarised in K v News Group Newspapers [2011] EWCA Civ 439; [2011] 1 WLR 1827 at paragraph 10. The application was an interim one, affecting freedom of expression. The relief asked for could not be granted therefore unless the judge was satisfied that the appellant was likely to succeed in establishing at trial that publication should not be allowed: see section 12(2) of the Human Rights Act 1998; and see further, as to the flexibility of the threshold test of likelihood, Cream Holdings Ltd v Banerjee [2005] 1 AC 253 at paragraph 22. 
14.	The appellant argued and it was not disputed by the respondents, that publication of the information suggesting he was suspected of a serious sexual offence - including otherwise anodyne information which would, when pieced together, lead to his identification by jigsaw effect - would engage his rights to a private and family life under article 8 of the ECHR. In two witness statements the appellant described the serious personal and financial consequences that he feared the publication of the information would have for him and his family, particularly his young children and those of family members (who I shall refer to compendiously as “the children”). This evidence is described in more detail in the judgment below at paragraphs 49 and 50. His principal concern was that if the information was published, he would be regarded as guilty by the public, even though he had not been charged with, still less prosecuted for any offence, and about the potentially distressing and damaging consequences this might have for his immediate and wider family, including the children. 
15.	The respondents on the other hand submitted that their article 10 rights and those of the public were engaged and whatever such expectations of privacy the appellant might have enjoyed were overridden when balanced against the principle of open justice recognised in article 6 (a public hearing) and article 8(2) of the ECHR. In a witness statement from Michael Smith for example, Head of News at TNL, reference was made to the extensive coverage the paper had already given to the police investigation in question, and other similar investigations; and that its interest was not confined to the legal proceedings in question but to the wider legal issues arising from them: see further, paragraphs 53 to 59 of the judgment below.   The respondents said they wanted to report the court proceedings concerning the imposition and lifting of the Order. They said there would be considerable public interest in such a report about the position of individuals about whom allegations are made during court proceedings but who are not party to the proceedings; about the extent of protection from publicity given by law to those who are facing imminent or pending proceedings; and about the challenges of reporting criminal proceedings where such issues arise.  The respondents said they wished to identify the appellant since this would make the piece considerably more engaging and meaningful for their readers. Any such report would be fair and would make clear that the appellant had been released from police bail and was not facing imminent or pending proceedings. 
16.	The judge accepted that in some ways the position of the appellant was more difficult than it would have been had he been a defendant and that there was no obvious way in which he could clear his name. He accepted the appellant’s evidence as to the impact of his arrest and subsequent events on him and his family. He accepted too that there would probably be some members of the public who would equate suspicion with guilt, and there was therefore a risk that the appellant and his family might be subject to unpleasant behaviour or harassment.  However, he said he approached the case on the footing that members of the public generally will understand the difference between suspicion and guilt and will know that a person is presumed innocent unless and until proved otherwise. 
17.	The judge said there was the "highest public interest" in the allegations of child abuse and the reports were likely to make an important contribution to the knowledge of the public and debates on the administration of justice. Such reports could also lead to witnesses coming forward, including those who might rebut any allegations made against the claimant. This was a point of general applicability, for which no evidence was needed, as the judge correctly observed. He noted the difficulties the appellant had already encountered, even though a reporting restriction was put in place 2 days after his arrest. He took the view that the injunction would be of limited benefit in any event, since it would not stop those who knew the appellant from spreading what they knew, whether accurately or inaccurately. He also said there was a risk that the continuation of such a restriction would tend to justify sinister conclusions about the appellant.
18.	The appellant argued that the evidence about the children tipped the balance in favour of relief being granted and cited observations by Ward LJ in K v News Group Newspapers Ltd [2011] EWCA Civ 439, [2010] 1WLR 1827 at paragraphs 18 to 20, in support of that submission.  The appellant contended that what was said about the position of children by the House of Lords in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593 was no longer good law, and should not be followed. The judge considered he was bound by the decision in In Re S, but in any event, said the evidence in relation to the appellant’s children was not such that the balancing exercise would produce a different outcome even if he were to adopt the approach propounded in K v News Group Newspapers, as the appellant invited him to do. 
19.	Having weighed the various factors in play, to some of which I have referred, the judge said he was not satisfied that the appellant was likely to succeed at any future trial: on the contrary, he thought it unlikely the appellant could succeed. The judge concluded there was a sufficient general public interest in publishing a report of the court proceedings which identified the appellant and any normally reportable details of those proceedings to justify any resulting curtailment of his right and his family’s right to respect for their private and family life. 
The Legal Framework
20.	The legal framework within which decisions must be made when the court has to consider the open justice principle and the rights engaged by articles 8 and 10 of the ECHR, is well-defined; and as is clear from the way the judge approached the case and his extensive citation from authority, he had that framework well in mind.  In those circumstances, I would simply highlight the following points.
21.	The ordinary rule is that the press may report everything that takes place in open court. It is a strong rule both domestically and in European jurisprudence and can only be displaced by unusual or exceptional circumstances: per Lord Steyn in In re S at paragraph 18. Any application to depart from it must therefore be carefully scrutinised. Further, as Lord Woolf explained in Ex parte Kaim Todner [1999] QB 966 at 977, in a passage cited with approval by Lord Steyn at paragraph 29 of In re S, “the need to be vigilant arises from the natural tendency for the general principle to be eroded and for the exceptions to grow by accretion as the exceptions are applied by analogy to existing cases.”
22.	Some of the problems that might arise if the courts were not to be sufficiently vigilant were identified by Lord Steyn at paragraphs 32 to 36 of In re S. I mention these matters, because in my view they have some resonance to the facts with which we are concerned. These include the widening pool of those who might claim similar relief if faced with the possibility of damaging publicity arising from a criminal trial, including other non-parties and family members; the seriously “chilling effect” this could have for the freedom of the press to report court proceedings  since the press could be faced with an ever widening spectrum of costly applications of this nature (particularly local newspapers, often most directly concerned with reporting ‘local’ criminal trials); and the potential for the broadening out of the matters in respect of which restrictions are sought. All of this could result in precisely the sort of incremental incursion into the open justice principle about which Lord Woolf warned in Kaim Todner; and would be very damaging indeed to the public interest.  
23.	The ordinary rule derives its strength from the open justice principle itself, as Lord Reed JSC has recently explained in A v British Broadcasting Corporation (Secretary of State for the Home Department intervening) [2014] UKSC 25 at paragraph 26, where he said: “the rationale of the principle is that justice should be open to public scrutiny, and the media are the conduit through which most members of the public receive information about court proceedings, it follows that the principle of open justice is inextricably linked to the freedom of the media to report court proceedings.” 
24.	Such reporting directly engages the public interest and has an intrinsic value. The intense scrutiny it provides ensures that trials are properly conducted, and acts as a valuable check on the criminal process; “the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law.”  (Lord Steyn in In Re S. at paragraph 30).
25.	It is a theme of the cases that applicants contend that the public interest is equally well-served by a publication which does not name them, as by one that does. 
26.	Such a submission was made and rejected in In re S. The case concerned a woman charged with the murder of her son. Her remaining son S was not involved in the criminal trial, but his guardian applied for an order to prevent the media from identifying the woman and the victim in order to protect S’s privacy. There was recent medical evidence before the court that such publicity would be significantly harmful to S, but the House of Lords held no such order should be made. Counsel for S argued that a proportionate response would be to permit court reports which did not refer to the family name or the deceased. In rejecting that submission at paragraph 32, Lord Steyn said: “It is important to bear in mind that from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.” 
27.	Similar views were expressed by Lord Rodger JSC in In re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697 at paragraphs 63 to 67.  
28.	Whether a departure from the ordinary rule is justified where the familiar conflict arises between the rights engaged under article 8 and article 10 of the ECHR depends ultimately however on the facts of the individual case which ground the balancing act the court is required to carry out, applying the structured approach to the question described by Lord Steyn in In re S at paragraph 18. 
29.	This enables the court to answer the question which must be addressed on applications such as these,  namely whether there is a sufficient general public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family’s right to respect for their private and family life: see    In re Guardian News and Media Ltd  at paragraph 52, and JIH v News Group Newspapers Ltd  at paragraph 21(5). 
Discussion
30.	Mr Barca QC for the appellant submits that this is not simply or principally a case about the open justice principle, and insofar as the judge adopted that approach as a result of non binding assurances from the respondents about what they intended to publish he was wrong to do so. The judge in any event took too narrow an approach to the article 8 rights engaged in this case given the possibility that a court report could be used as a “Trojan Horse” for the publication by third parties of other inaccurate allegations or private information not disclosed in open court, with potentially highly injurious consequences for the appellant and his family.
31.	There can be no doubt in my view that the open justice principle was engaged in this case even though the appellant was not himself a party to the criminal trial. This is obvious from the nature of the relief that the appellant asked for and the facts to which I have referred. The judge rightly proceeded on the basis that it was an important element, but not the only element that needed to be considered in determining the application. He was also right in my judgment to apply the principles relating to the issue of anonymity, summarised by the Master of the Rolls in JIH v News Group Newspapers Ltd at paragraphs 21 and 22.  
32.	It is true that emails the respondents sent to the appellant before some of the hearings before Judge Rook may have suggested the respondents contemplated publishing something other than, or more than a report of the criminal trial in any story which identified the appellant once the Order was lifted. But all that was water under the bridge by the time of the application before the judge. The respondents said through counsel, and in their evidence, that they intended to publish a fair and accurate report of the criminal trial, and no more and in my view, this was an assurance the judge was entitled to accept. I should add that since the hearing before the judge the respondents have offered written undertakings to the court in similar terms. 
33.	The appellant’s real fear as the judge recognised was that any report published by the respondents which identifies him, even if accurate, might lead to other stories about him and to members of the public suspecting he is guilty or is reasonably to be suspected of offences with which he has not been charged, with potentially dire consequences for him and his family. 
34.	However the judge was entitled to conclude that the respondents’ right to report the proceedings was not fatally compromised by that possibility, and to approach the matter on the basis that the appellant’s rights on the application were not correspondingly broadened. A similar argument to that now raised by the appellant was rejected by the Supreme Court in In re Guardian News and Media Ltd. There it was argued that the appellants should be entitled to retain an order giving them anonymity in judicial review proceedings challenging freezing orders made under anti-terrorism legislation, because of the risk that, if they were identified as someone whom the Treasury claimed to have reasonable grounds to suspect of facilitating terrorism, members of the public would simply proceed on the assumption that they were guilty. As Lord Rodger pointed out at paragraph 60, that amounted to saying that the press must be prevented from printing what is true as a matter of fact, for fear that some of those reading the reports may misinterpret them and act inappropriately which would make public discussion of these and similar matters impossible. The argument failed in that case though the distinction between reasonable grounds to suspect and guilt is certainly a finer one than arises in this case; and the risk of misunderstanding was accordingly greater. 
35.	Lord Rodger went on to say that the court is entitled to proceed on the assumption that members of the public generally are able to distinguish between suspicion of guilt and guilt. At paragraph 66 he said “the law proceeds on the basis that most members of the public understand that, even when charged with an offence, you are innocent unless and until proved guilty in a court of law. That understanding can be expected to apply, a fortiori, if you are someone whom the prosecuting authorities are not even in a position to charge with an offence and bring to court.” 
36.	That was the basis upon which the judge proceeded, and I consider he was entitled to do so. The fact that the prospective accusation in In re Guardian News and Media Ltd was an extremely serious one - guilt of terrorism - did not of itself place the case into any special or exceptional category.  Likewise here in my view. The judge accepted there was an element of risk, but against the background of the assumption or understanding to which Lord Rodger referred, he was entitled to regard it as merely one factor to be taken into account when considering whether the anonymity order was a proportionate restriction on the respondents’ freedom to report the court proceedings.  
37.	This leads me to the second strand of the appellant’s argument. The appellant submits that even if this is a case which can be characterised as primarily engaging the open justice principle, the public interest considerations the principle gives rise to are overridden by the presumption of innocence which the appellant is entitled to rely on in defence of his article 8 rights - particularly as he is no longer under arrest let alone charged with any offence. This argument it is said has particular force, when seen against the background of a growing recognition that as a matter of public policy, the identity of those arrested or suspected of a crime should not be released to the public save in exceptional and clearly defined circumstances. 
38.	I am unable to accept this part of the appellant’s argument for a number of reasons.  The approach to the open justice principle which guided the judge has been settled at the highest level, in In re S and In re Guardian News and Media Ltd, amongst other cases. In my view, the appellant’s argument ignores a fundamental part of that approach, which is that most members of the public understand the presumption of innocence and are able to distinguish between the position of someone who has been (merely) arrested, someone who has been charged, and someone who has been convicted of a criminal offence. Once that is understood, it follows that the effect of disclosing the fact of the appellant’s arrest on his article 8 rights is significantly more limited than Mr Barca contends. 
39.	I do not accept that this approach been tempered or modified by the decision of the Supreme Court in A v British Broadcasting Corporation (Secretary of State for the Home Department intervening) (handed down after the judgment under appeal) as Mr Barca suggests. Lord Reed, in giving a judgment with which the other member of the court agreed, said at paragraph 41 that the application of the principle of open justice may change in response to changes in society and the administration of justice, and can also develop having regard to the approach adopted in other common law countries.  He went on to make it clear, however, at paragraph 48 that where there is a conflict between the right of the media to report legal proceedings and the rights of litigants or others under a guarantee which is itself qualified, such as article 8, the approach which should be adopted is that described in detail by Lord Steyn in In re S, and by Lord Rodger in In re Guardian News and Media Ltd.  
40.	Given the strength of the guidance as to the correct approach in this jurisdiction, the Canadian cases, to which we were referred by Mr Barca, for example, R v Henry [2009] BCCA 86   are, with respect, of limited assistance in resolving the issues we have to consider. None of them are directly analogous on the facts, and the decisions are not coloured by the presumption that members of the public are capable of distinguishing between suspicion and guilt. 
41.	Mr Barca has also drawn our attention to some recent material, which considers whether the police should publish the name of someone who has simply been arrested. I accept this material provides some support for the proposition that there should be a more careful consideration of such a person’s rights than there might have been in the past: see for example, the Judicial Response to Law Commission’s Consultation Paper on Contempt of Court at paragraph 5 (written by the judge and Treacy LJ) and the 2013 College of Policing Guidance on Relations with the Media, where it is said that consideration must be given to an individual’s right to respect for a private and family life, the right of publishers to freedom of expression and the right of defendants to a fair trial. The Guidance goes on to say that save in clearly identified circumstances the names or identifying details of those who are arrested or suspected of crime should not be released by police forces to the press or the public. 
42.	The appellant is not, however, someone who has simply been arrested. The fact of his arrest and other associated information has been extensively referred to in open court, including in public rulings given at the criminal trial, and the respondents want to report this. It was this which gave rise to the many factors bearing on the rights engaged which the judge correctly identified and carefully considered. See further, paragraphs 60, 63 to 68 and 72 to 74 of In re Guardian News and Media Ltd  where Lord Rodger spells out the importance of the open justice principle, even where, as here, the applicants could not challenge the substance of the allegations against them. 
43.	I turn then to the position of the children. The appellant criticises the judge’s  conclusion that in considering the interference with their privacy rights he was bound to follow the approach in In Re S,  given what has now been said about the particular weight to be accorded to those rights in applications of this kind by Lord Justice Ward in K v News Group Newspapers Ltd. There he said that the Convention cannot be interpreted in a vacuum; therefore the rights of children are not confined to their article 8 rights, but include their rights in international law. He went on to say at paragraph 19: “where the court is deciding where the balance lies between the article 10 rights of the media and the Article 8 rights of those whose privacy would be invaded by publication, it should accord particular weight to the Article 8 rights of any children likely to be affected by the publication, if that would be likely to harm their interests.”  
44.	As is clear from his judgment, the judge had full regard to the effect of the disclosure of the appellant’s identity on the children, noting that there was “some risk” that the children “may be subject to very unpleasant behaviour, even harassment.”  The judge concluded on the facts, that giving particular weight to the evidence of the children would not have tipped the balance in favour of the application, given the strength of the article 10 considerations in play; in other words, on the evidence before him it made no difference. I think the judge was entitled to come to that view and the appellant has put forward no cogent reasons for us to conclude otherwise.  Though therefore, the appellant submits there is a tension between the approach of Lord Justice Ward and that of Lord Steyn to the ultimate balancing test when the article 8 rights of children are engaged, the point is not material to the resolution of this appeal.  
45.	I do not accept the judge’s conclusions on this aspect of the case were insufficiently reasoned, as Mr Barca submits, but the appellant’s remedy if he wished to pursue this line of argument, was to ask the judge to provide further reasons and the appellant did not do so: see further English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605, [2002] 1WLR 2409.
Conclusion
46.	The task the judge had to carry out was an evaluative one, akin to the exercise of discretion. This court will not interfere unless the judge erred in principle or reached a conclusion which was plainly wrong, that is, one outside the ambit of conclusions which a judge could reasonably reach: see Browne v Associated Newspapers Ltd [2007] 3 WLR 289 at paragraph 45 and JIH v New Group Newspapers Ltd at paragraph 26. 
47.	The judge reached a conclusion he was entitled to on the facts in my view, and it is not a conclusion with which I would interfere. If my Lords agree, this appeal will be dismissed. This judgment will however remain anonymised, and the section 4(2) orders imposed by this court and the judge below, will remain in place until the appellant’s application for permission to appeal to the Supreme Court has been finally determined or until further order. If the application for permission is not pursued or is unsuccessful then those section 4(2) orders will be lifted and the appellant’s full name should be substituted for the initials PNM.
Lord Justice Vos:
48.	I agree.
The Master of the Rolls
49.	I also agree.