Campaign to Protect Rural England-Kent Branch v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Hamblen,Lord Justice David Richards |
| Judgment Date | 15 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1230 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2018/1259 |
| Date | 15 July 2019 |
and
[2019] EWCA Civ 1230
Lord Justice David Richards
Lord Justice Hamblen
and
Lord Justice Coulson
Case No: C1/2018/1259
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PLANNING COURT
HHJ Evans-Gordon
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ned Westaway (instructed by Richard Buxton Environmental and Public Law) for the Appellant
Ms Jacqueline Lean (instructed by the Government Legal Department) for the 1 st Respondent
The 2 nd Respondent and the Interested Party did not appear and were not represented
Hearing Date: 27th June 2019
Approved Judgment
Introduction
This appeal arises out of an original decision by Lang J on the papers on 31 January 2018 when she refused the appellant's application for statutory review in a planning case. The judge made costs orders in favour of both respondents and the interested party. Following a request for a review of the decision on costs, the order was affirmed by HHJ Evans-Gordon (sitting as a deputy High Court Judge) on 20 April 2018. Permission to appeal against that order was granted on 5 December 2018. Two potentially important issues arise on the appeal: first, the extent to which a court can make adverse costs orders in favour of more than one defendant or interested party in a planning case where permission to apply for statutory (or judicial) review is refused; secondly, the proper application of what I shall call the Aarhus cap 1 in a case which fails at the first hurdle (because permission is refused).
The Factual Background
On 25 October 2017, the second respondent (“the Council”) adopted the Maidstone Borough Local Plan (“the Plan”), following a finding by the inspector appointed by the first respondent (“SSCLG”) that, subject to modifications, the Plan was “sound” within the meaning of s.20 (5) of the Planning & Compulsory Purchase Act 2004. The Plan included a particular policy which allocated a large site at Woodcut Farm for mixed employment floor space. The promotor of the development at the Woodcut Farm site was the Interested Party (“Roxhill”).
On 4 December 2017, the appellant sought statutory review of the decision to adopt the Plan. The SSCLG was named as the first defendant, the Council as the second defendant, and Roxhill was named as the Interested Party. All three were served with the claim form, in which (amongst other things) the appellant requested that its cost liability be limited to £10,000 in accordance with CPR Part 45 (the Aarhus cap). The SSCLG, the Council and Roxhill each filed Acknowledgements of Service (“AoS”) with summary grounds setting out their reasons for disputing the claim for statutory review. There was some overlap in the points taken by each party, although there were some arguments which were specific to each. In addition, Roxhill referred to certain documents which had been excluded from the appellant's original claim bundle.
As noted above, on 31 January 2018, Lang J refused the appellant permission to apply for statutory review. She accepted that the claim was subject to the Aarhus cap. She ordered the appellant to pay the SSCLG's costs of the AoS and summary grounds of dispute, claimed and assessed at £2,879; the Council's costs of the AoS and summary grounds, claimed and assessed at £5,245.50; and Roxhill's costs of the AoS and summary grounds, claimed at £6,675 but assessed at £1,875.50. In this way, the total sum awarded by way of costs reached the full limit of the £10,000 Aarhus cap. In her short reasons Lang J accepted that the amount payable to Roxhill was capped at
£1,875.50 “because of the claimant's costs limit of £10,000”. There is no complaint from Roxhill that the judge had been wrong to apply the Aarhus cap to their costs onlyThe appellant, however, objected to the costs awarded by Lang J, and provided written submissions dated 14 February 2018 challenging that part of the order. These objections fell into two main areas. First, the appellant objected to the award of more than one set of costs. Secondly, there was an objection to the quantum of the costs ordered. Although there was also a suggestion that those costs were themselves excessive, the main argument on quantum was that it was wrong in principle for the costs at the permission stage to absorb the entirety of the Aarhus cap.
The respondents and the interested party served submissions in reply. The matter was considered on the papers by HHJ Evans-Gordon, who on 20 April 2018 affirmed the decision of Lang J.
The principal issues on appeal remain as they were in the written exchanges that were considered by HHJ Evans-Gordon. The first issue concerns the appellant's liability for multiple costs orders when permission to seek judicial/statutory review is refused. There is a short tangential second issue as to who should be the lead defendant in a case of this sort. The third issue is concerned with quantum and the application of the Aarhus cap in circumstances where the claim for judicial/statutory review does not get beyond the permission stage. I shall address the issues in that order.
Issue 1: A Claimant's Liability For Multiple Costs
Overview
Ordinarily, a claimant who issues and serves proceedings on other parties, and whose claim is then struck out or refused at an early stage, will prima facie be liable for those other parties' reasonable and proportionate costs. The issue that arises is whether different rules apply to claimants in judicial or statutory review cases (particularly planning cases), or whether they are prima facie liable for the reasonable and proportionate costs of defendants and interested parties of preparing and filing an AoS and summary grounds, if permission is then refused. For the reasons set out below, and subject to the particular point I emphasise about the proportionality of the costs claimed, I consider that different rules do not apply and that such claimants may be liable for more than one set of reasonable and proportionate costs.
The Principal Authorities
Mr Westaway relied heavily on Bolton Metropolitan District Council and others v the Secretary of State for the Environment [1995] 1 WLR 1176. That was a planning case where there were a number of different parties which went to trial and all the way to the House of Lords. Lord Lloyd said:
“The House will be astute to ensure that unnecessary costs are not incurred. Where there is multiple representation, the leading party will not normally be required to pay more than one set of costs, unless the recovery of further costs is justified in the circumstances of the particular case…
What then is the proper approach? As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule. But the following propositions may be supported.
(1) The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award of costs by apportionment, whether by agreement with other parties, or by further order of the court. In so far as the Court of Appeal in the Wychavon District Council case may have encouraged or sanctioned such a course, I would respectfully disagree.
(2) The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of costs in every case.
(3) A second set of costs is more likely to be awarded at first instance, than in the Court of Appeal or House of Lords, by which time the issues should have crystallised, and the extent to which there are indeed separate interests should have been clarified.
(4) An award of a third set of costs will rarely be justified, even if there are in theory three or more separate interests. On the facts of the present case the Secretary of State is clearly entitled to the whole of his costs. The only question is whether the Manchester Ship Canal Co. should also receive their costs. In my opinion they should. I accept that the issues were all capable of being covered by counsel for the Secretary of State. But the case has a number of special features. First, the case raised difficult questions of principle arising out of the change of Government policy towards out-of-town shopping centres between the date of application and the final decision. The Secretary of State was concerned not only to support his decision, but also to explain and defend his wider policy. If the appeal had gone the other way, the case would in all likelihood have gone back to him for re-determination de novo.” 2
Mr Westaway cited another older authority, Berkeley v the Secretary of State for the Environment (12 February 1998) (QBCOF 97/0679 CMS4) which did not seem to me to support any additional point of principle. That was a decision in which another
party's claim for costs was refused, again after a substantive hearing, because, on the facts, Nourse LJ found they had been unable to demonstrate a separate issue on which they were entitled to be heard (page 7 E-F)Both Bolton and Berkeley were concerned with costs after a substantive hearing, not (as here) the limited costs of preparing and filing an AoS and summary grounds. They were also decided by reference...
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