R (on the application of Ramblers Association) v Secretary of State for Defence

  1.       MR JUSTICE SULLIVAN:  This is an application for judicial review of the stopping up of Mildenhall Footpath No 28 in Suffolk by the defendant purportedly under powers conferred on him by sections 16 and 17 of the Defence Act 1842 (“the Act”). Sections 16 and 17 as subsequently amended are in these terms: “16 . . . it shall be lawful for the principal officers of her Majesty’s ordnance for the time being to enter on, survey, and mark out, or to cause to be surveyed and marked out, any lands, buildings, or other hereditaments or easements wanted for the service of the ordnance department, or for the defence of the realm, or to stop up or divert any public or private footpaths or bridle-roads, and to treat and agree with the owner or owners of such lands, buildings, hereditaments, or easements, or with any person or persons interested therein, either for the absolute purchase thereof, or for the possession or use thereof during such time as the exigence of the public service require. 17  Provided always . . . that whenever any footpath or bridle-road shall be stopped up as aforesaid, another path or road shall be provided and made in lieu thereof respectively, at the expense of the ordnance department, and at such convenient distance therefrom as to the principal officers of her Majesty’s ordnance for the time being shall seem proper and necessary.” 2.       The powers of the ordnance department now vest in the defendant.  While the Act makes provision for the stopping up of footpaths and for the provision of another path in lieu, it does not make any provision for the publication of any formal order or notice to that effect.  The defendant therefore set out his decision and the reasons for it in a non-statutory Footpath Decision Paper which was published on 5th September 2005.  Annex 3 to that paper is a public notice giving details of the stopping up and the replacement footpath. 3.       Footpath 28 runs from point A on the map referred to in the decision paper on a public highway known as Hurdle Drove, across land in Ministry of Defence ownership, around part of RAF Mildenhall, to a point X within the base.  There it joins up with another highway which has been temporarily closed by the Suffolk County Council as highway authority under other statutory powers.  The temporarily closed length of highway leads from point X to point J on another highway, the A1101.  The replacement path runs between point A and point E on Hurdle Drove, then between point E and point F on New Road, and then between point F and point J on the A1101.  It is common ground that the replacement path runs for its entire length along existing public highways, principally the C603 and the A1101. 4.       The claimant challenges the defendant’s decision on two grounds.  First, it is said that the power conferred by section 16 is not a freestanding power to stop up or divert footpaths or bridle-ways (referred to as bridle-roads in the Act).  The power to stop up or divert may be used only in respect of land which is in the process of being acquired under section 16.  Second, it is said that the defendant has not “provided and made” another path in lieu of the stopped up Footpath 28.  He has simply told members of the public that there is an alternative route that they can use to get between point A and point J via the existing highway network.  As a subsidiary part of this second ground of challenge, the claimant contends that (a) what replaces a footpath must be a footpath and no more, ie, it would not be lawful for the defendant to provide under section 17 a replacement bridleway in lieu of a stopped up footpath; and (b) initially at least, it was submitted that the whole of the replacement path had to be new, ie, it was not permissible to utilise any part of the existing highway network.  Subsequently, this submission was modified to acknowledge that while part of the alternative route may utilise the existing highway network, the replacement path must be “in substance” a new route.  The end result must be that members of the public do not suffer any or any significant loss of footpath or bridleway. 5.       The defendant accepts that the power to stop up or divert footpaths and bridle-ways under section 16 must be exercised for defence of the realm purposes.  Thus it would not be lawful for the defendant to exercise section 16 powers simply because he considered that it would be advantageous to do so on, for example, highway or town and country planning grounds.  However, the defendant submits that is the only constraint on the stopping up and diversion power contained in section 16.  The power relates to ‘any’ land and not just to land which either is being or has been acquired under section 16 of the Act, or other enactments enabling land to be acquired or used for defence of the realm purposes. 6.       In respect of ground two, it is submitted that the effect of section 17 is that there must be an alternative route available to the public at such convenient distance as the defendant considers proper and necessary.  It is permissible to take into consideration the existing highway network in deciding what shall be provided by way of the replacement, and once it is accepted that it is permissible to incorporate the existing highway network into part at least of the path that is to be provided in lieu, then it is submitted there is no reason why the whole of the path to be provided in lieu should not be provided by the existing highway network.  If the matter was simply one of degree then one could have the position, for example, where the provision of a relatively short length of ‘cut off’ at the corner where New Road joins the A1101 would mean that there would be a lawful replacement within section 17.  It is submitted that the fact that this can be done means that there would be absurd consequences which should be avoided by recognising that the whole of the replacement path may be provided via the existing highway network. 7.       There are no authorities dealing with these powers, although the scope of section 16 was considered by the House of Lords in Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508.  Lord Moulton said at pages 550 to 551: “This Act gives very wide powers to the Crown.  It has unrestricted powers of selection of the necessary lands, buildings, et cetera to be taken.  It contemplates in the first instance voluntary purchase, but, if that cannot be arranged, then the lands, et cetera, may be acquired compulsorily subject to certain certificates being obtained as to the necessity or expediency of the acquisition or in case of actual invasion.  I am satisfied that it enables the Crown to acquire either the property or the possession or use of it as it may need.  In all cases compensation is to be paid by the Crown, the amount to be settled by a jury.” At page 553, he said this: “But towards the beginning of the last century the Acts take on a more general and permanent form, and eventually they culminate in the Defence Act 1842, which gives to the Crown, through its properly appointed officials, the widest possible powers of taking land and buildings needed for the defence of the realm under a minutely defined procedure set out in the Act.  It contemplates, as I have already said, that the acquisition shall, as a rule, be by agreement, but it gives ample powers of compulsory acquisition if the necessity be duly vouched, or in the case of an actual invasion.  In all cases compensation for the taking or using of the land by the Crown is to be decided by a jury . . . ” 8.       Against this background it is convenient to deal with the grounds of challenge in reverse order.  Firstly, I do not accept the submission that was at one time advanced on behalf of the claimant that in providing and making another path in lieu of the path that has been stopped up, the defendant is not entitled to have regard to the existing highway network and to utilise part or parts of that network.  If, as in the present case, the stopped up footpath links two highways, there is no sensible reason why the replacement path should not require the walker (or the rider in the case of a bridleway) to walk or ride some distance along those existing highways at either end before traversing a new replacement link between them.  Indeed, it may be essential to use some part of the existing highway network to reach the terminus points of the stopped up footpath or bridleway if, for example, the path that has been stopped up runs through the middle of a military establishment which is bounded on two sides by roads.  The replacement path will then have to be diverted around the establishment.  It may well be necessary to use the existing highway network as part of the diverted route, in order to do so.  9.       Looking at the facts of the present case, it is difficult to see how any replacement path made or provided in lieu of the stopped up path between points A and X, and ultimately point J, could be provided without using at least part of the existing highway network on the A1101 leading to point J.  At point A on Hurdle Drove it might, theoretically, be possible to strike out immediately across the fields in the general direction of point J.  That would not be possible at point J, given the surrounding development alongside the A1101. 10.     The submission that there should be no loss to the public of footpath or bridleway is an anachronistic approach to section 17.  In 1842, Parliament’s concern was not that members of the public should be able to explore the public path network for leisure purposes so that there should be no reduction in its extent, but that the public should have a reasonably convenient replacement path.  The replacement path might be longer or it might be shorter.  In 1842 the latter would probably have been the preferable option.  If it is possible to create a more convenient path between the two terminus points by constructing a length of new path shorter than the length of path that has been stopped up, then there is no sensible reason why such a course would not be within the scope of section 17.  11.     Nor do I accept the other subsidiary submission advanced by the claimant that a highway upon which there is a right of passage by vehicles as well as on foot cannot form part of the path that is provided and made in lieu of the footpath that has been stopped up.  In this context, the greater includes the less.  In Suffolk County Council v Mason [1979] AC 705, Lord Diplock described the position of common law thus at pages 709H to 710A: “The law of highways forms one of the most ancient parts of the common law.  At common law highways are of three kinds according to the degree of restriction of the public rights of passage over them.  A full highway or ‘cartway’ is one over which the public have rights of way (1) on foot, (2) riding on or accompanied by a beast of burden and (3) with vehicles and cattle.  A ‘bridleway’ is a highway over which the rights of passage are cut down by the exclusion of the right of passage with vehicles and sometimes, though not invariably, the exclusion of the right of driftway, ie, driving cattle, while a footpath is one over which the only public right of passage is on foot.” 12.     Bearing in mind the underlying focus of section 17 and the fact that Parliament in 1842 was not concerned with countryside recreation but with ease of access between two points, the public could not complain if their public right of passage was enlarged rather than restricted under section 17; for example, if in lieu of a footpath a bridleway was provided, since the bridleway would include not merely the right to ride along the way but also a right of way on foot.  Similarly, if a full highway or cartway was provided in lieu of a footpath or a bridleway, the public right of passage would be enlarged because such a way would include a right of way on foot as well as the additional rights described by Lord Diplock.  On the other hand, the public could certainly have complained if a bridle-road was stopped up and what was provided in lieu was simply a footpath.  That would be an unlawful restriction of the public right of passage. 13.     For these reasons, I do not accept the subsidiary arguments advanced by the claimant in support of the second ground of challenge.  However, I do accept the claimant’s principal submission under this ground, that in simply telling the public that they can use the existing highway network to get between points A and J, the defendant has not “provided and made” another path in lieu of Footpath 28 which has been stopped up.  Section 17 is expressed in peremptory terms.  A replacement path or road ‘shall’ ‘always’ be ‘provided and made’ at the expense of the ordnance department (now the defendant).  That duty is not removed merely because the defendant considers that, given the existing highway network, it is unnecessary to incur expenditure on providing a replacement path in lieu. 14.     On behalf of the defendant, Miss Lieven QC submitted that such a construction of the section would produce absurd results.  If that is the case, then so be it.  The fact that it may be possible to discharge the duty imposed by section 17 by providing and making a relatively short stretch of new path at the expense of the ordnance department, does not provide any ground whatsoever for abrogating the clear statutory duty.  Given the particular circumstances of this case, where it is accepted that the whole of the replacement path runs along the existing highway network, it is unnecessary to resolve the issue raised by the claimant: how much of the replacement path must be newly constructed in order to comply with section 17?  Inevitably, this will be a question of fact and degree, in each case, as with the question: how many hairs has a beard?  In the present case, since there are no hairs, there is no beard.  It follows that the decision taken by the defendant was unlawful. 15.     In the circumstances, ground one is academic.  There would seem to be four possibilities: first, that the stopping up and diversion power is confined to land which is in the process of being acquired under section 16 of the Act (the claimant’s submission); second, that it is confined to land which either is being or has been acquired under section 16 of the Act; third, that it relates to footpaths or bridleways on any land, whether or not that land is being or has been acquired under section 16; and fourth (though this was not argued on behalf of the defendant) that it is a general power to stop up any footpaths and bridle-roads on any land for any purpose whatsoever. 16.     Looking at the first of those possibilities I can see no sensible reason to constrain the section 16 power to footpaths that are crossing land whilst that land is actually in the process of being acquired under section 16.  It is unnecessary to read such a limitation into the section and there is no sensible reason why the power should not extend to land which has been acquired under section 16.  The existence of public rights of way in days long before the existence of definitive maps might not have been apparent during the course of acquisition.  Can it sensibly be said that having acquired land under section 16 and then having discovered that there is a public footpath or bridle-road across it, the defendant would have no power under section 16 to stop or divert the bridleway or footpath because the acquisition had been completed under section 16?  Similarly, the practical problems created by the existence of a footpath or bridleway might be realised only some time after a purchase had been completed, for example, when a detailed layout was prepared, or when it was desired to alter the layout of the land for defence purposes.  I do not accept the claimants’ submission that in such circumstances the section 16 power could not be utilised because the power lasts only for so long as the land is being acquired under section 16?  17.     It seems to me, therefore, that the real issue is whether the stopping up power relates simply to land which is being and/or has been acquired under section 16 or whether it is a more general power to stop up or divert any public or private footpaths or bridle-roads for defence of the realm purposes.  In the context of this case, this point is doubly academic, (a) because of my views in respect of ground two above, and (b) because the land in question is Ministry of Defence land.  It is to be assumed, therefore, that such land has been acquired and/or is now held for defence of the realm purposes.  Nevertheless, submissions having been made, I will express my views on this issue.  I prefer the submissions of Miss Lieven for the defendant.  While I readily accept that the stopping up and diversion power is not a freestanding power in the sense that it may not be used for any statutory purpose other than for the purpose of defence of the realm, I see no reason why the power should be confined to land that is or has been acquired under section 16.  On behalf of the claimant, Miss Crail referred to the fact that the procedure under section 16 was described by Lord Moulton as “a minutely defined procedure”.  So it is, at least by the standards of the time.  However, it will be noted that section 16 contains a power to acquire not merely lands and buildings and other hereditaments but also easements that are wanted for the service of the ordnance department or for the defence of the realm. 18.     The fact that there is a quite separate power to stop up or divert not merely public footpaths or bridle-roads but private footpaths or bridle-roads suggests that this separate power may be used to stop up or divert private footpaths or bridle-roads that are not being acquired as easements as part of the land acquisition process under section 16 of the Act.  This suggests that the stopping up power extends to other land, ie, land that is not about be acquired under section 16.  The draftsman of section 16 could have added the words “on such land” after the words “to stop up or divert any public or private footpaths or bridle-roads”, but he did not do so.  There may well be a good reason for stopping up a footpath on land adjoining the land to be acquired under section 16 because, for example, it overlooks the land to be acquired. 19.     In the circumstances, I accept Miss Lieven’s submission that there is no reason not to give the word “any” its normal meaning, particularly bearing in mind two factors: (a) the public interest is protected by section 17, so that while there can be no compensation payable for the stopping up of a public right of way as there can be for a private easement, the public is protected by the requirement ‘always’ to provide and make another path in lieu of that which has been stopped up; and (b) the recognition in the Attorney General v De Keyser’s case that the powers conferred by the 1842 Act are very wide powers.  In the context of powers conferred for the purpose of defence of the realm, it would be inappropriate, in my judgment, to infer a limitation on those powers if that limitation was not expressly enacted by Parliament. 20.     For these reasons, while I reject the claimant’s challenge on ground one, I accept the challenge upon ground two.  Now I will hear submissions as to relief.  Yes, Miss Crail. 21.     MISS CRAIL:  My Lord, I am grateful.  To return to the question of relief I was sketching out this morning before you, there is a slightly amended order which we would now be seeking in terms of page C of the bundle.  The modification that I have suggested in section 6 was a declaration that the defendant, perhaps rather than the Secretary of State, acted unlawfully in purporting to stop up Footpath 28 with effect from 1st October 2005.  The public notice is the date in fact from which the stopping up was to take effect. 22.     MR JUSTICE SULLIVAN:  Would the declaration that the stopping up of Footpath 28 was unlawful be enough?  I would have thought a declaration that the stopping up of Footpath 28 was unlawful, that is point one.  Anything else? 23.     MISS CRAIL:  My Lord, whether one further needs an order quashing the decision to stop it up may be overkill. 24.     MR JUSTICE SULLIVAN:  Yes, it is difficult to know what one is doing.  One is certainly not quashing an order, as you rightly pointed out. 25.     MISS CRAIL:  Maybe that the stopping up is ineffective.  That follows from declaring it to be unlawful. 26.     MR JUSTICE SULLIVAN:  Yes.  I will hear what Miss Lieven says about this.  I am slightly conscious of the fact that really what the Ramblers Association was concerned about in this case was, if you like, a matter of principle.  I am not aware of any huge desire on the part of the public to get to point X on this plan from point A.  If there was, or if someone was being very seriously inconvenienced then I might think of going further than declaratory relief and I might think of quashing, if I could find what it was that I wanted to quash.  I think I could use my ingenuity to find something to quash.  Since this is defence of the realm, I would be slightly reluctant to go beyond a declaration.  What do you want to say about it, Miss Lieven? 27.     MISS LIEVEN:  My Lord, two things.  First of all, in my submission, a declaration is quite sufficient here.  The practical reality is that once your Lordship has made a declaration then my clients need to consider what to do next.  In the interim it is extremely important that the path be stopped up.  But I am in a moment going to ask your Lordship for permission to appeal. 28.     MR JUSTICE SULLIVAN:  Either you are going to appeal or you are going to put your hands up and say “We will have to provide a replacement of some kind” and then think about what that is going to be. 29.     MISS LIEVEN:  Yes.  In any event, my Lord, I would ask for a stay, either pending the determination of the appeal or pending the determination of the application to appeal to the Court of Appeal if your Lordship does not give me permission.  Just to fill in the gap, as it were, what we are likely to do is to ask Suffolk County Council to exercise its temporary stopping up powers, as we did when a previous order was quashed by consent, and that will hold the ring until we decide what to do next.  Nobody is arguing that it is appropriate on the facts not to stop this path up for national security reasons.  It is, in my submission, absolutely vital that the court ensures that it remains stopped up at all times.  As to the principle of relief, the declaration is quite sufficient. 30.     MR JUSTICE SULLIVAN:  If I stayed it then it would not actually mean that Suffolk County Council would have to busy itself, although I suppose if you appealed and failed or if you decided not to appeal then something of a rather more long-term basis would have to be sorted out pending resolution of what sort of replacement is provided. 31.     MISS LIEVEN:  My instructions are that Suffolk County Council can step into the gap as long as we have a few weeks, whether we ultimately decide to appeal or not. 32.     MR JUSTICE SULLIVAN:  Yes.  Miss Crail, it does seem to me that it is sensible to adopt a mechanism that holds the ring, at least for a little while so the Ministry can scratch its head and decide what it wants to do.  I do not detect from the Ramblers Association’s challenge that there is an all fired urgency to get access to point X.  It was very much an order of principle. 33.     MISS CRAIL:  My Lord, that is right.  What I am debating in my mind is whether or not, having declared that the stopping up was unlawful, it must follow that it was ineffective and therefore there is no stopping up. 34.     MR JUSTICE SULLIVAN:  Either the Secretary of State will appeal or he will not, but I would say there is no reason to believe that the law will not be obeyed here. 35.     MISS CRAIL:  What I was going to say is that you cannot really stay a declaration.  If there is no further relief such as a quashing or anything being granted then there is nothing to stay. 36.     MR JUSTICE SULLIVAN:  Yes, effectively not granting a quashing means that if there is a stay in practical terms there has been declaratory relief.  I am going to square this circle. 37.     MISS LIEVEN:  Can I just say one thing, my Lord.  It is important that the position is made clear because otherwise there may be problems with Suffolk County Council making a temporary stopping up order. 38.     MR JUSTICE SULLIVAN:  Is it better then, in fact, that I do make a quashing order but stay it? 39.     MISS LIEVEN:  Yes, my Lord, I suspect from our point of view it is.  Then the position is absolutely clear that the stopping up of this footpath would, subject to the stay, be ended by your Lordship’s judgment therefore Suffolk County Council effectively have to exercise their temporary power, subject to any arguments they hear to the contrary, but no arguments have ever been put on the substantive merits of this case. 40.     MR JUSTICE SULLIVAN:  As to what it is I am quashing, I am not quashing the decision am I?  I must be quashing the stopping up.  It is an act that the Secretary of State does.  He stops up, does he not? 41.     MISS LIEVEN:  Yes, I may have missed a subtlety here, my Lord.  I had rather seen it as being quashing the decision issued 5th September 2005 to stop up.  Now, I may be being overly simplistic. 42.     MR JUSTICE SULLIVAN:  I am more than happy to do that.  Right, unless I hear anything further I will tell you what I am going to do and you see if you want to say anything further.  I am going to grant a declaration that the stopping up of Footpath 28 was unlawful.  I am going to quash the decision contained in the notice of decision dated 5th September 2005 to stop up Footpath 28.  I am going to grant a stay on that order for — now, how long?  I realise we have not yet dealt with appeal, but whether I give you permission or not you have to have a certain amount of time to think about what you are going to do.  I would say four weeks or so would be enough. 43.     MISS LIEVEN:  The other way to do it would be a stay on the order until, if your Lordship grants me permission, the Court of Appeal determines the matter or, if your Lordship does not grant permission, until the Court of Appeal determines any application.  That gives me three weeks to make my application.  The advantage of that, my Lord, is that if your Lordship gives me four weeks, and we may have to come back if there is some delay in Suffolk, whereas this, as it were, allows the matter to go on until it becomes critical. 44.     MR JUSTICE SULLIVAN:  So you make your pitch for me giving you permission to appeal and we will see where we go from there. 45.     MISS LIEVEN:  My Lord, I will keep my pitch very short.  The two tests, my Lord, in my submission it is clearly arguable.  I only have to argue on your Lordship’s analysis on the second ground in any event.  In my submission, there can be no doubt at all that our case is arguable.  The statute is not at all clear, and the end result that we have come to on ground two is one that I think your Lordship yourself will acknowledge is one that may not make a very great deal of sense on the ground because one could end up with a short piece of new footpath with absolutely no benefit in terms of the statutory purpose whatsoever.  My Lord, in my submission arguability is clearly met.  46.     Even if your Lordship is against me on that, in my submission there is the other ground which is that this case is clearly of considerable wider importance because it is by no means limited to the facts of this particular case.  Your Lordship will recall there were originally two cases here.  There will a number of other circumstances around the country where these issues of national security and footpaths going through or close to military establishments have to be considered, and what powers are open to the Secretary of State is a matter of very great importance for him but also, I would suggest, very great wider public importance. 47.     MR JUSTICE SULLIVAN:  Certainly.  Yes, I understand that. 48.     MISS LIEVEN:  My Lord, on that ground alone I suggest we meet the test. 49.     MR JUSTICE SULLIVAN:  What do you want to say about that, Miss Crail? 50.     MISS CRAIL:  My Lord, I have been asked to make it quite clear on behalf of my client that they do not wish to do anything to jeopardise national security in any way.  We are content with the proposals, subject to the period of stay pending the appeal.  My Lord, in our submission there is no prospect of success on ground two if it is the intention of the Secretary of State, as it must be, to argue that section 17 can be complied with simply by pointing to the existing highway network.  There is no prospect of success on that whatsoever.  It would be forlorn and pointless to go to the Court of Appeal and say that it is a matter of public interest when it cannot be won.  Therefore we would say leave to appeal should be refused and it should be left to the Court of Appeal to decide whether or not it is an appropriate case.  According to your Lordship’s judgment, in the words of the statute, it is not an appeal that would succeed. 51.     MR JUSTICE SULLIVAN:  Yes, well they always used to call storming the breach in a besieged town a forlorn hope.  Some of them still survived.  Thank you very much. 52.     I am going to give permission to appeal.  I do so really, I think, under the second limb.  It seems to me that this is potentially an issue of wider importance to the ambit of the powers conferred by the 1842 Act.  I am bound to say that I find it difficult to see that the position on this case is arguable under ground two, but it will be a matter for the Secretary of State to consider whether or not this one is worth arguing.  What I will do is give permission to appeal, I am going to grant a stay, Miss Lieven, until the period for appealing expires and/or, if a notice of appeal is filed and served within the time, until the Court of Appeal has finally disposed of the matter.  Is that what you want? 53.     MISS LIEVEN:  I am very grateful, my Lord, that is exactly what I want. 54.     MR JUSTICE SULLIVAN:  Right. 55.     MISS CRAIL:  My Lord, I do not know if I can have leave to cross appeal, in those circumstances. 56.     MR JUSTICE SULLIVAN:  No, I do not think you do.  The position is that if the Secretary of State does not appeal then you are stuck with my views on ground one.  On the other hand, if the Secretary of State does appeal you can come in with a cross appeal and so the Secretary of State may lose the lot. 57.     MISS CRAIL:  The other question is costs.  My Lord, we have won and costs should follow the event and we should have our costs.  We do have a schedule of costs. 58.     MR JUSTICE SULLIVAN:  I have not seen your schedule.  Have you seen it, Miss Lieven? 59.     MISS LIEVEN:  I have not seen my learned friend’s, no. 60.     MISS CRAIL:  We would go to detailed assessment in those circumstances. 61.     MR JUSTICE SULLIVAN:  Can I find out what Miss Lieven’s submissions are on the principle of the costs. 62.     MISS LIEVEN:  My Lord, on principle I do resist paying my learned friend’s costs.  In my submission the fairest costs decision is no order, or each side pay their own costs.  The reasons for that are self-evident.  On the first issue, although your Lordship rightly said because of the finding on the second issue it was academic, your Lordship did reason it out fully and found for the defence, so we won the first issue.  63.     To go further than that, on the second issue the claimant only gained what is, in my submission, a very partial victory because what they sought to establish was that section 17 required an alternative path which was one of the same order, so a path for a path or a bridleway for a bridleway, but also that it was subject to de minimis entirely new, whereas your Lordship did not find that that was the test at all.  Obviously, that in many ways, from my client’s point of view, is the critical point.  If one goes back to the fact this litigation was originally brought about two footpaths we would have won, on your Lordship’s analysis, on Eriswell and lost on Mildenhall.  So, my Lord, that shows that even on the second issue we had a significant measure of success.  64.     I appreciate, my Lord, that the decision was quashed.  I am trying to take a realistic stance, which is not to say that we won three quarters and they won one quarter so they should pay something to us or some argument such as that.  It is just that in my submission, having actually won a very substantial part of the issues in this case, the fair order is that there should be no order. 65.     MR JUSTICE SULLIVAN:  Miss Crail, my view is that the Ramblers Association ought to get half its costs.  You did win but many of Miss Lieven’s points are perfectly fair.  But at the end of the day you did win so I think you should get something, but not more than half.  So half your costs.  Do you want me to summarily assess those costs or do you want to go to detailed assessment?  If you have not seen them then you will not be able to — 66.     MISS LIEVEN:  My Lord — 67.     MR JUSTICE SULLIVAN:  I think a detailed assessment.  Could I  just make it clear, this is half the costs of the challenge to Footpath 28.  In so far as some of these costs, if they were bumped up by the other challenge that has not been pursued at all, they should not be included.  I am not sure the extent to which they are.  I simply do not know. 68.     MISS CRAIL:  I think the problem is that it would be impossible.  There was the same consultation by the defendant in respect of both and they were treated as very much — 69.     MR JUSTICE SULLIVAN:  Yes, I suspect whether there were two or one the points are the same.  Right.  Sorry, Miss Lieven. 70.     MISS LIEVEN:  Sorry, my Lord, I was taking instructions.  My Lord, in my submission this matter should go to detailed assessment for two reasons.  One is there is the tricky issue of the two footpaths, and undoubtedly some time would have been spent on Eriswell.  The other is that the figure for the solicitors’ costs is perhaps surprisingly high and, in my submission, needs to be the subject of detailed assessment.  We need to see what the hours were and the hourly rate and quite how it ended up as such a high figure. 71.     MR JUSTICE SULLIVAN:  In fact there is a fair amount of fees for counsel as well prior to the hearing.  Inevitably, sometimes counsel’s fees are very high because the solicitor does not have to do too much or vice versa.  It is swings and roundabouts.  I think this ought to go for detailed assessment.  I make it clear that some allowance ought to be made for the fact that there is no reason why the Secretary of State should pay for what are really the abortive costs of Eriswell Footpath 6, but again I make it clear that I would not necessarily expect those to have added very greatly to the overall costs because the two legal issues had to be run anyway, so there may be a modest adjustment but I would not expect there to be a very large adjustment on that account.  Fifty per cent of your costs to go for detailed assessment unless otherwise agreed.  72.     Anymore for anymore?  No.  Sorry to keep you late but it was a good idea to finish it today.