53. The claimants contend that the defendant was obliged at common law to undertake a proper consultation with those affected before taking the decision to withdraw the PTU service and replace it with individualised transport arrangements. The claimants contend that this duty is an aspect of the overarching common law duty to act in a procedurally fair manner. They rely on the decision of the Court of Appeal in R v Devon CC ex p Baker [1995] 1 All ER 73 in support of that proposition. They also draw my attention to the observations of Lord Reed JSC in Osborn v Parole Board [2013] 3 WLR 1020 at paras 64–72 to emphasise first that fairness is for the court and not for the decision-maker to decide, and second his explanation of the benefits to be gained from procedurally fair decision making. As to what is required in terms of consultation, they refer me to the well-known statement of Lord Woolf MR, in R v North & East Devon HA ex p Coughlan [2001] QB 213 at paragraph 108, where he said that:

‘It is common ground that whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent LBC ex p Gunning (1985) 84 LGR 168.’

54. They also refer me to the analysis of the Court of Appeal, given by Arden LJ, in R (Royal Brompton & Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 at paras 8–14. In particular they emphasise the requirement that the consultation document must present the issues in a way that facilitates an effective response, and in a way which is clear to the general body of consultees, the requirement that the available information must be presented fairly and not inaccurately, and that the unfairness need only be shown to affect a group of those affected by the consultation, as opposed to all of them.

55. Mr Greatorex in his submissions did not quarrel with the above as statements of principle. He also however emphasised para 13 of the judgment in Royal Brompton, where Arden LJ referred to the observations of Sullivan J (as he then was) in the Greenpeace case, to the effect that clear unfairness must be shown, and that the error must show that there has been no proper consultation, and that something has gone clearly and radically wrong with the consultation process. He also referred me to the very recent decision of the Court of Appeal in Rusal v London Metal Exchange [2014] EWCA Civ 1271, where Arden LJ again summarised the law relating to consultation, and also stated (at paras 51–53) that the court should not ignore information which on the evidence was well known to the consultees anyway, even if not expressly referred to in the consultation document