JUDGMENT
1. This is a Claim by the Claimant David Allen under the Disability Discrimination Act 1995 (as amended) (“The DDA”).
2. The Claimant, who was born on the 25th August 1991 appears by his Litigation Friend, Ceri Allen (“Mrs Allen”). Mrs Allen is the Claimant’s mother and she has given evidence in support of his case. She has told me I may refer to him as David.
3. David has been ably represented by Ms Catherine Casserley of Counsel and the Defendant (to whom I shall refer as “The Bank”) by Mr Stephen Hardy of Counsel. Mr Hardy has presented the Bank’s case with equal skill and I am grateful to both Counsel for the way in which this litigation was presented in court and for their industry in providing long and detailed opening and closing arguments.
4. At the commencement of the proceedings I was faced with about eight lever arch files. After some incisive discussion with Counsel, and after giving them time, the six volumes of documents were reduced to a single volume and the two volumes of authorities to a further single volume. The solicitors for both parties, neither of whom had applied to the District Judge for an Order as to what documents should be before the trial Judge, had been unable to agree on what documents were to be used. As I have said in court, that lack of agreement is unhelpful and in my view unjustified.
5. David suffers from Duchenne Muscular Dystrophy (DMD). He uses an electric wheelchair. He was diagnosed with DMD at an early age and whilst still at primary school was using a wheelchair for school and family trips.
6. It was when David was about 9 years old that the Bank made a visit to his primary school and by the enticement of an electronic organiser, which David insisted he wanted, he was successfully persuaded to open an account with the Bank. I accept Mrs Allen’s evidence that David’s sister (who is two or three years older than David) already banked with HSBC, but for David the electronic organiser was irresistible. I am surprised that the Bank recruits children to its business when they are as young as nine.
7. The Bank opened an account for David at its
8. It is admitted by the Bank that David suffers with a disability within the meaning of Section 1 of the DDA.
9. It is further admitted that the
10. By Section 19 of the DDA it is provided that:-
“(1) it is unlawful for a provider of services to discriminate against a disabled person –
(a) in refusing to provide, or deliberately not providing, to the disabled person any service which he provides, or is prepared to provide, to members of the public;
(b) in failing to comply with any duty imposed on him by section 21 in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service;
(c) in the standard of service which he provides to the disabled person or the manner in which he provides it to him; or
(d) in the terms of which he provides a service to the disabled person.”
Section 19(2) is explanatory of terms used in Section 19(1) of the DDA and Section 19(3) provides examples of the application of Sections 20 and 21 of the DDA.
11. Section 20 provides that:-
“(1) For the purposes of Section 19 a provider of services discriminates against a disabled person if:-
(a) for a reason which relates to the disabled persons disability he treats him less favourably than he treats or would treat others to whom that reason does not, or would not, apply; and
(b) he cannot show that the treatment is question is justified
And Further under Sub-Section 2 if
(a) he fails to comply with a Section 21 duty imposed on him in relation to the disabled person, and
(b) he cannot show that his failure to comply with that duty is justified”.
12. A failure to comply with the duty which is referred to in Section 20(1) is only justified where:-
(a) in the opinion of the provider of services, one or more of the conditions mentioned in sub-section 4 are satisfied, or
(b) It is reasonable, in all the circumstances of the case for him to hold that opinion.
And the Conditions referred to are:-
(a) in any case, the treatment is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person);
(b) in any case, the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable in that case;
(c) in a case falling within section 19(1)(a) [refusal of service], the treatment is necessary because of the provider of services would otherwise be unable to provide the service to members of the public;
(d) in a case falling within section 19(1)(c) [standard or manner or service] or (d) [terms], the treatment is necessary in order for the provider of services to be able to provide the service to the disabled person or to other members of the public;
(e) in a case falling within section 19(1)(d) [terms], the difference in the terms on which the service is provided to the disabled person and those on which it is provided to other members of the public reflects the greater cost to the provider of services in providing the service to the disabled person.”
13. The DDA provides under Section 21 of the Act a duty to make reasonable adjustments. In particular Section 21(2) says:-
“21(2) Where a physical feature (for example, one arising from the design or construction of a building or the approach or access to premises) makes it impossible or unreasonably difficult for disabled persons to make use of such a service, it is the duty of the provider of that service to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to:–
(a) remove the feature;
(b) alter it so that it no longer has that effect;
(c) provide a reasonable means of avoiding the feature; or
(d) provide a reasonable alternative method of making the service in question available to disabled persons”.
14. I am reminded by Miss Casserley of the code of practice which in Part 3 provides at paragraph 6.4 that:-
“The policy of the Act is not a minimalist policy of simply ensuring that some access is available to disabled people; it is so far as it is reasonably practicable to approximate the access enjoyed by the rest of the public. Accordingly, the purpose of the duty to make reasonable adjustments is to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large”.
15. There can be no argument that the Defendant is a service provider within the meaning of Section 19 of the DDA or that its range of services generally offered are those of a normal bank and include the paying in of money, practical matters and advice concerning the opening of accounts including what accounts may be best for the client and the provision of money from cash points as well as obtaining money at the service counter. In my view a client can expect to be offered a facility for confidential discussion and the Bank recognises this in the establishment at
16. Has the Bank made it impossible or unreasonably difficult for disabled people to use the service provided at
17. I confess that when I first came to this case I had expected that the factual matrix would be extremely complicated. Indeed in defending the claim it appeared to me that the Bank sought to rely upon a great number of matters concerning the physical features present at
18. Nevertheless, as the evidence progressed I was surprised to learn that the key factor issue for the Bank is one of potential disruption to the Bank’s premises to the necessity (if it be so) of the removal of one of the downstairs interview rooms.
19. There is no doubt that the alterations to these premises would be, in laymans terms, expensive. The starting point is in the region of £130,000 plus VAT and I suspect would likely reach £200,000 a figure which I surmise upon the evidence provided to me.
20. It is a matter of public knowledge that the Bank is one of the larger providers of banking services in the
21. I had assumed in considering the papers and listening to the earlier part of the evidence that cost was an objection. However, I was told in terms by Mr Hannah from the witness box (Mr Hannah being a Regional Director of the Consultant Project Managers, Faithful and Gould), that cost is not an issue in this case. There being no evidence to contradict their assertions, I find that cost is not an issue.
22. The second point which appeared to be a significant feature of the Bank’s defence arose from the response of the Bank to the Standard Questionnaire. That response says:-
“We did proceed as far as receiving planning permission for this scheme in 2002, however when the structural engineer visited the site he expressed concerns about the ability to amend the construction of the vaulted ceiling and having assessed the impact on the gas pipework, other services and the disruption to Branch it was decided that the scheme could not be pursued”.
23. Although further information was sought of the Bank it declined to provide such further information. No full structural survey was ever carried out in respect of these premises. No structural engineers report forms part of the papers. Concerns over the construction of the vaulted ceiling and impact on gas pipework and other services causing disruption seems to me to concentrate more on the question of potential cost. The disruption which is referred to (and there must always be some disruption in the face of internal building works to any building in use) revolves around disruption to the interview rooms, or at least one of them.
24. Mr Fairgrieve (statement at Tab 35) is the Programme Manager of Group Projects for the Bank. He has vast experience and has been with the Bank for about 20 years, largely within the Group’s property team. He accepts that structure was not an issue in the present case.
25. Mr Hannah (Tab 36) was even more emphatic that structure was not an issue in the case. Both these gentlemen contend that there is a difficulty of space. The Bank has its own basic standards which require a minimum measurement of 1200 by 1200 although it was later contended that a turning circle of 1500 is the requirement of BS8300 (see pages 198 and 228). I accept the contentions of the Claimant as elaborated in paragraph 37 of the closing submissions, that in evidence Mr Fairgrieve raised for the first time the turning circle of the internal platform hoist as a reason for not proceeding with the works. This is so despite the matters he raised at paragraph 11 of his Witness Statement (page 242) in the following terms:-
“It is correct that we obtained planning permission for
at page 35 of the design guide. Further the physical works were considered severely disruptive as it required alterations to incoming gas main, water main and internal services”.
26. A single joint expert was instructed for the purposes of this litigation. He is Mr Richard Owen whose report is within Tab 29. It has been necessary to refer to the full report for purposes of the litigation but I refer to paragraphs 9.5, 9.6 and 9.7 from the conclusions of the report at page 138.
“9.5 We have considered the Bank’s Appointed Consultants Proposal for the installation of a Platform Lift within the existing Lobby. We are advised that this scheme benefits from Planning Permission and
9.6 We have concluded that a Platform Lift is the most appropriate method of overcoming the issue of disabled access at the premises. From our inspection of the building structure, we believe that it is possible and technically feasible to install a Platform Lift, which would allow independent access to the Branch via the far right Customer Entrance door.
9.7 This work would, however, necessitate the loss of one of the four existing Interview Rooms within the premises”.
27. The conclusions recognise disruption but at:-
9.8 stated:-
“however, with careful planning and separation of the working area, we do not believe it would be necessary to close the Bank in order to execute the works”.
It concluded that an estimated cost from the quantity surveyors was £130,000 though that figure was later revised as a result of questions asked and a new figure of £175,000 plus VAT was estimated.
28. It appears to me that this proposal has never been considered seriously by the Bank and so much was obvious from the frank oral evidence from Mr Hannah who made it plain that the project engineers were not permitted to fully consider such a proposal since it involved a loss of an interview room which the Bank would not sanction.
29. It follows, in my judgement, that the Bank has not at any time been open to the proposal of this lift. It has failed to properly consider it. It is therefore impossible to say, as is suggested at paragraph 3.3.2 of the Bank’s closing submissions that Mr Fairgrieve’s evidence demonstrated that no appropriate solution had been found to resolve the difficulties at
30. I conclude therefore that the failure to consider the proposal must lead to a finding of discrimination under Section 20(2)(a) unless the treatment is justified. The burden of showing justification falls upon the Bank.
31. The evidence from the Bank and particularly Mrs Jean Cluness (and to an extent Miss Sarah Vigar) was that the Bank’s facilities at
32. In fact no detailed evidence of the use of any of the interview rooms was provided during the course of the hearing, nor is it contained within the substantial body of documentary evidence submitted. The reason for this omission is quite straight forward. The Bank simply declines to consider sanctioning the loss of one of its interview rooms. That failure cannot be justified on any evidence adduced before me.
33. I do not accept that Mr Owen’s report has demonstrated that all the methods of achieving disabled access are unreasonable.
34. The History of Services Available to the Claimant
There was no great need for David to use the primary facilities of the Bank until he began receiving Disability Living Allowance which is paid directly into his account with the Bank every four weeks.
35. His mother is concerned about his use of ATM cash machines since because he is wheelchair bound she perceives a security risk. In other words he is more vulnerable than the average person if he uses an ATM in the street.
36. Mrs Allen contends and I accept her evidence, that the Church Street Branch has 2 machines but they can only be “approached by mounting a plinth but this is not possible in a wheelchair. The cash machines are too high – the shelves are 40 inches and 31 inches respectively, above ground level and the controls are set too deep into the wall to reach – it is 36 inches from the front of the stone plinth to the middle of the key pad.” I accept, therefore, that these two cash machines at David’s own branch of the Bank,
37. On the 31st August 2006 Mrs Allen went to the
38. In any event the Bank failed to supply the list of accessible branches and on the 2nd February 2007 a request was made by Mrs Allen on behalf of David for a list and for information regarding the steps that the Bank had taken to render the branch accessible. She received no reply.
39. On the 3rd March 2007 Mrs Allen wrote a second recorded delivery letter, this time to the RBS Complaints Department enclosing, a copy of the letter of the 2nd February 2007. Almost a month later, on the 2nd April 2007, Rhoda Anderson, a Customer Relations Advisor with the Bank wrote apologising and gave an assurance that the matter would be investigated and on the 16th April 2007 Ms Anderson wrote again advising that David could use the staff entrance at
40. Mrs Allen and David went to the
41. A Disability Discrimination Questionnaire, which was prepared by the Law Centre who eventually provided the information concerning access to a listed building, was sent on the 10th May 2007.
42. On the 16th May 2007 the Bank wrote offering Internet or telephone banking with it, or the possibility of using NatWest branches. One address only was given. No explanation was given of the relationship of the Bank with NatWest (in fact as most know NatWest is part of the Bank). The Bank offered to make a compensation payment of £150 and remove the disabled accessible signage which was shown outside the Branch. (The sum of £150 was later revised to £250 and the inappropriate signage was removed).
43. The reply to the questionnaire indicated that the Bank had decided not to pursue a disabled access option for reasons which I have rehearsed above.
44. On the 1st August 2007 the Bank offered to allow Mrs Allen to operate David’s account on his behalf. David is fully capable of operating his own account although I do find, on the evidence before me, that he is a somewhat quiet and reserved young man who can become embarrassed in difficult situations. Although I am assured that the Bank did not intend the offer to be offensive that is how it was received by Mrs Allen and David. The letter of the 1st August also suggested the use of the Ecclesfield branch which is ten miles from David’s house and a two and a half hour return bus journey.
45. It will be remembered the bank had suggested that David access counter facilities by the use of NatWest branches and on the 4th January 2008 he went with his sister to the NatWest branch at 42 High Street (not too far away from the Church Street Branch) which was a branch recommended by the Bank for David to use. After queuing for some time he presented his cash card at the counter. The card was refused. It was not the fault of the Bank official who David saw but as a fact the computer systems of RBS and NatWest did not permit the use of an RBS card at NatWest. On the 5th January 2008 Mrs Allen went with David to the same branch and was present when, on presenting his RBS card he was told by the Cashier that “That’s not a NatWest card, you can’t use it here”. David was in considerable embarrassment and left immediately and I find that he experienced considerable embarrassment, also, the day before when he went with his sister. I also find, contrary to the assertion of the Bank, that the reason that David presented himself at the Bank on the 5th January was to make sure that no error had been made by the NatWest Bank the day before. Clearly it had not. The Bank has made errors in this case causing David considerable embarrassment. It has not covered itself in glory. Indeed when the Bank’s website was originally accessed that, too, showed that the
46. I further reject any suggestion that Mrs Allen had gone to the Bank on the 5th January with David to enhance any claim he may have to damages. I found her to be a caring mother, understandably protective, and a straightforward and accurate witness.
47. I accept that David could access cash in some ATMs in either Banks with wheelchair access or some shops. He could obtain “Cash Back” but the pre-requisite for that is that he must buy something from the shop in which the facility is available.
48. I am less than convinced that the Bank fully appreciates its obligations under the DDA. A gross example of this, which in my view demonstrates continuing discrimination (and one which is a factor to be taken into account in assessing damages though not meriting a separate award) is the present view of the Bank of the visit by David to the
49. I adopt the passage referred to in the Bank’s closing submission (at 3.3.9) of Baroness Hale in Mayor and Burgesses of the London Borough of Lewisham –v- Malcolm [2008 ICR337HL] that …..”there is the right of people with disabilities to be treated as equal citizens” and not treated more favourably. In my judgement David was certainly not treated more favourably.
50. The Bank also sought to assert that David could (and effectively should) use Internet banking. Of course he cannot use that facility for paying money in or drawing money out. Internet banking is a facility provided by the Bank which does not provide equal services to the services provided within the confines of a branch of the Bank.
51. During the course of evidence the Bank’s officials, in response to a question by me, said that it is possible for arrangement to be made for a customer to be seen at home. It is notable that no such offer has ever been made in this case.
52. The duty incumbent upon the Bank to make adjustments as a provider of services falls within Section 21 of the DDA. Section 21 provides:-
(1) “Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides or is prepared to provide to other members of the public, it is his duty to take such steps as is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect”.
(2) “Where a physical feature, for example one arising from the design of construction of a building for the approach or access to premises makes it impossible or unreasonably difficult for disabled persons to make use of such a service, it is the duty of the provider of that service to take such steps as is reasonable in all the circumstances of the case for him to have to take in order to –
(a) remove the feature;
(b) alter it so that it no longer has that effect;
(c) provide a reasonable means of avoiding the feature; or
(d) provide a reasonable alternative method of making the service available to disabled persons”.
I find that the Bank has not taken reasonable steps within the meaning of Section 21(1) nor has it taken reasonable steps under Section 21(2).
53. The Bank rely, in particular, upon Section 21(2)(d)
“Provide a reasonable alternative method of making the service in question available to disabled person”.
I have already found that some of the proposals made by the Bank cannot amount to reasonable alternative methods of making the service in question available to David. In its closing submissions the Bank seeks to assert, implicitly and perhaps expressly that one alternative method is to provide services above those offered to able bodies member of the public, namely services on the public. In so far as this method is asserted it plainly falls outside Section 21(2)(d).
54. The closest that the Bank can get to a reasonable alternative method is its assertion that there are other banks to which David could gain access. I am satisfied that these involve difficulties in David reaching the Bank. It is not always a question of distance. David can travel and does travel on his own. The area of this Bank is close to where he meets up with his teenage friends. Many of the buses which he is able to catch near to his home take him into the area near to the Bank. These are buses which cater for his wheelchair. Not all buses provide such a facility.
55. David’s parents provide transport for him from time to time. It was the Bank’s assertion that David could be taken to banks which it is said are more convenient including The Moor. The problem for the Bank with that assertion is twofold. First, I accept the evidence of Mrs Allen that dropping off facilities and parking facilities for these are not good. Secondly, and far more importantly the assertion by the Bank undermines David’s independence. The Bank cannot seek to rely upon David’s parents or others providing transport for him to other suitable branches of the Bank particularly when it has made no serious attempt to consider improvements to the Church Street branch to enable David to have access to it.
56. I have been helpfully referred to the decision in Roads v Central Trains Limited [2004 EWCA Civ 1541,CA]. This case determines the approach to the duty to make reasonable adjustments. Lord Justice Sedley, having accepted the invitation to give the primary judgment in the case said at paragraph 11 and 12.
11. “…Manifestly no single feature of premises will obstruct access for all disabled persons or – in most cases – for disabled persons generally. In the present case, for instance, the footbridge is not likely to present an insuperable problem for blind people. The phrase ‘disabled persons’ in Section 21(2) must therefore be directing attention to features which impede persons with one or more kinds of disability; here, those whose disability makes them dependent on a wheelchair. The reason why it is expressed in this way and not by reference to the individual Claimant is that Section 21 sets out a duty resting on service providers. They cannot be expected to anticipate the needs of every individual who may use their service, but what they are required to think about and provide for are features which impede persons with particular kinds of disability; impaired vision, impaired mobility and so on. Thus the practical way of applying Section 21 in discrimination proceedings would usually be to focus the question and the answer on people with the same kind of disability as the Claimant”.
12. “The personal right created by Section 19 of the DDA operates by fastening a cause of action onto the Section 21 Duty if the effect of a breach of the duty is ‘To make it impossible or unreasonably difficult for the disabled person to make use” of the service in question.
Thus there is a double test, albeit both limbs use the same phraseology;
1st (in paraphrase), does the particular feature impede people with one or more kinds of disability; secondly, if it does, has it impeded the Claimant?
The answer to both the questions posed in paragraph 12 of the Judgment in Roads is “Yes”.
57. In so far as I have to address the question of wheelchair users as a class, I am satisfied that no wheelchair uses can access the Church Street Branch.
58. The Bank contends, in looking at an appropriate comparator, hyperthetical or otherwise, showing how others would have been treated. It is the Bank’s case that David has been treated as others would in all the circumstances and contends that there is a changing face of branch banking such as Internet banking and, I should mention, telephone banking. It is true that there is a wide spectrum of services in modern banking but it seems to me that the facilities of telephone and internet banking are additional to those of traditional branch banking. The Bank recruited David’s custom at the Church Street Branch. At the very least they have been aware of his disability since he opened the savings account with that branch, following discussions on the street. David’s claim was not commenced until August or September 2007. I cannot accept that the Bank should succeed on the comparator point.
The Moor
59. This branch of the Bank is pointed to as a suitable alternative for David. I have already mentioned that some banks are not as easily accessible for David as others. In this case I accept Mrs Allen’s evidence that there is more difficulty encountered by a wheelchair user leaving a bus at the moor rather than the
Broomhill
60. There is no direct bus route and there is difficulty in parking. As I have already mentioned the suggestion that the use of this branch by the Bank involves David having a reliance on his parents and ignores his entitlement to independence.
61. In all the circumstances of this case it seems to me that David must succeed in this claim. I accept the contentions of Miss Casserley on behalf of David (paragraphs 40 and 41 of the closing submissions) that the evidence given by Miss Cluness was deficient (although I accept she did the best she could) in suggesting that the interview rooms were fully booked but added the ground floor appointments are used for customers who do not have appointments. Further, I accept that the Defendant has failed to fully cost any of the options or to commission a structural engineers report, has failed to demonstrate how the decision not to proceed with a platform lift/hoist was reached and there is an extremely unclear audit trail. Yet further, there is no evidence of any meaning to show that the Bank ever seriously considered the consequences (or costs) of losing a downstairs interview rooms.
Remedies
62. I have already mentioned that the Bank did make an offer of £150 which was, in fact, later increased to £250. Mr Hardy deals with quantum at paragraph 3.5.9 on page 18 onwards of his closing submissions. It is contended by the Bank (3.5.12 at page 19 of those submissions) that David has failed to mitigate his losses. In the light of the findings I have made above I reject such a submission. Mr Hardy who has eloquently pursued the Bank’s case both orally and in written submissions says that the compensation should be less than £5,000 and in any event no more than £1,500 if at all.
63. In the light of the findings I have made it is plain that David has suffered from discrimination and that he has suffered from considerable embarrassment caused by the Bank. He has attended his own branch of the Bank where there was wheelchair accessibility signage. That was wrong and was later removed. The Website said that there was wheelchair access. That was wrong. He was then told that he could use the staff entrance. That was wrong also. He was engaged in a private conversation about the opening of a savings account on the street in full public view. He was referred to the local branch of NatWest Bank and after queuing discovered that he could not use his bank card there because the computer systems at NatWest were incompatible with those of the Bank. He attended the following day with Mrs Allen, for no more reason than to check that there had not been an error made by NatWest. Again he suffered embarrassment. NatWest needed to see the letter sent by RBS telling David to go to use NatWest facilities. Some cash machines are inaccessible to David, particularly those at his own branch of the Bank,
64. Miss Casserley, in very thorough closing submissions deals with quantum (Paragraphs 61 onwards at page 30 of her submissions).
This is not a case where an award in the region of £21,000 such as was made in Prison Service –v- Johnson and others [1997] ICR275 should be made. The Court of Appeal in Vento The Chief Constable of West Yorkshire Police [2003] ICR 2008 (a transcript of the decision being at Tab 16 of the bundle of authorities) approved the principles of compensation of injury to feelings discussed in Johnson.
In Vento – the Court determined that there were three brackets which could normally be considered. The top band being “£15,000 to “£25,000 for the most serious cases, £5,000 to £15,000 for serious cases not meriting an award in the higher class and thirdly awards of between £500 and £5,000 for less serious cases. The decision in Vento was in (December 2002) nearly six years ago. I agree with the observations of the Sheriff Principal in Purves –v- Joydisc Limited [2003] IRLR 420 at paragraph 19 in which he suggested that the very minimum for injury to feelings in this day and age ought to be in the region of £750.
65. Having said that I am satisfied that this is not a case where compensation for injury to feelings can be limited to the least that should be awarded. Because of the long period of discrimination which David has suffered and continues to suffer and the embarrassment which has been caused by the Bank I am satisfied that this case falls into the middle band under the principals in Vento.
66. In the circumstances of this case I make an award of £6,500.
67. I am asked also to grant an injunction upon the basis that damages alone is not a sufficient remedy. Miss Casserley reminds me of the observations made in Lewis v The Department for Works and Pension [2007]
68. I have already made it plain that I find that the Bank has not approached this case and the difficulties which David faces with the zeal that one could have expected. I am prepared to accept that the Bank has about 2,300 retail branches in the
69. The purpose of an injunction in this case is to preclude further discrimination. I have reached the conclusion that an injunction ought to be made in this case.
70. At paragraph 76 of her submissions Miss Casserley suggests that the Defendant ought to provide access to the Claimant to its premises by means of the installation of a platform lift, such installation to be completed by September 2009. This seems to me to be a sensible proposal and recognition that the Bank will need time to implement the scheme. No undertaking to install a platform lift or indeed to do any other work has been offered by the Defendant and the court cannot compel an undertaking such as is suggested in paragraph 77 of Miss Casserley’s closing submissions.
71. I will ask Counsel to prepare a draft minute of order following the findings in this judgment. If there be any dispute about it, then the matter will have to be restored for further directions.
72. Had I believed that the work was not to be completed by September 2009 I would have likely awarded a higher sum than £6,500.
His Honour Judge Dowse
