Charles Spragge v Westminster City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 12 July 2018 |
| Neutral Citation | [2018] EWHC 2058 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 July 2018 |
| Docket Number | CO/3517/2017 |
[2018] EWHC 2058 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
THE HONOURABLE Mr Justice Supperstone
CO/3517/2017
The Queen on the Application of
and
APPEARANCES
THE FIRST CLAIMANT appeared in person on behalf of himself and the SECOND CLAIMANT.
Mr C Streeten (instructed by Tri-borough Shared Legal Services) appeared on behalf of the Defendant.
THE INTERESTED PARTY did not attend and was not represented.
The first claimant, a solicitor advocate who acts in person on behalf of himself and the second claimant, seeks an order pursuant to CPR 44.10(3) that following the claimants' notice of discontinuance the defendant pay their costs of these proceedings in the sum of �1,830. The defendant opposes this application and seeks an order that the claimants pay their costs of the claim withdrawn in accordance with CPR 38.6 in the sum of �11,698.30.
This matter came before me on 1 February 2018 when it was adjourned part-heard. It is regrettable that it has not been possible to conclude this hearing before today.
The background to this application is that on 13 June 2017 the defendant granted planning permission for development of 39 Westmoreland Terrace comprising “two storey infill extension at rear lower ground and ground floors with roof terrace at first floor level; extension to closet wing at first and second floor levels; infill extension to front lightwell and lowering of basement vault”. The claimants are the owners and occupiers of an adjoining property, No. 41 Westmoreland Terrace, who contended that they would suffer a loss of light and other amenity from the proposed development. The claimants challenged the defendant's decision by a claim form issued on 26 July 2017. On 9 September 2017 permission to apply for judicial review was granted on the papers by Lang J. As is usual, the order granting permission made no reference to cost.
On 17 October 2017 the claimants filed a notice of discontinuance. CPR 38.6(1) provides that —
“(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.”
The legal principles that apply where an application is made to displace that default position were considered by Moore-Bick LJ, with whom Ward and Arden LJJ agreed, in Brookes v HSBC Bank [2011] EWCA Civ 354 at paras.6–8 which he summarised as follows:
“(1) When a claimant discontinues the proceedings, there is a presumption by reason of CPR 38.6 that the defendant should recover his costs; the burden is on the claimant to show a good reason for departing from that position;
(2) the fact that the claimant would or might well have succeeded at trial is not itself a sufficient reason for doing so;
(3) however, if it is plain that the claim would have failed, that is an additional factor in favour of applying the presumption;
(4) the mere fact that the claimant's decision to discontinue may have been motivated by practical, pragmatic or financial reasons as opposed to a lack of confidence in the merits of the case will not suffice to displace the presumption;
(5) if the claimant is to succeed in displacing the presumption he will usually need to show a change of circumstances to which he has not himself contributed;
(6) however, no change in circumstances is likely to suffice unless it has been brought about by some form of unreasonable conduct on the part of the defendant which in all the circumstances provides a good reason for departing from the rule.”
Mr Spragge submits that there was a change of circumstances in the present case and unreasonable conduct on the part of the defendant, which not only should result in the defendant not being entitled to their costs but, in addition, to an order that the defendant pay the claimants' costs of these proceedings. First, Mr Spragge refers to what he describes as a material change of circumstances by the interested party, the owner of No. 39, giving a commitment not to proceed with building the rear extension. The interested party then submitted a fresh planning application omitting the aspects of the development to which the claimant took objection.
I accept the submission made by Mr Streeten, on behalf of the defendant, that this does not displace the default position. The existence of such a commitment, assuming for present purposes that it has been given, is irrelevant to the existence of the planning permission. In any event, any change of circumstances was not brought about by some form of unreasonable conduct on the part of the defendant, as required by the sixth principle set out in Brookes.
Mr Spragge suggests there was other unreasonable conduct by the defendant. First, that the defendant unreasonably refused to engage in settlement talks. I do not accept that this was so. The defendant's letter of 4 October 2017 makes clear that the defendant was willing to meet with the claimants and discuss the terms upon which they would withdraw the claim. In that letter the defendant concluded by saying:
“If you are prepared to withdraw your claim for judicial review, the council would be prepared to negotiate on costs but I should make it quite clear that we will not agree to quashing the decision and we are not prepared to pay any of your costs. We would be willing to meet with you to discuss this further. Please let me know if you wish to meet on this basis.”
Mr Spragge submits that this was highly unreasonable conduct by the defendant in the negotiations. I do not accept that it evidences unreasonable conduct.
Three other points made by the claimants do not, in my view, assist their case. First, the defendant did provide on 18 July 2017 a full response to the claimants' pre-action protocol letter albeit, as Mr Spragge says, he does not agree with its contents. Second, Mr Spragge contends that there are contradictory statements in the letter of response to the pre-action protocol letter and the summary grounds of defence. I am not persuaded that statements made by the defendant amount to unreasonable conduct on the defendant's part. Third, the fact that the claimant was not held to be totally without merit and was granted permission is no indication that the claim was likely to succeed.
Mr Streeten submits that it is plain that the claim would have failed. It is not necessary for me to determine whether that is so or not. In my judgment the default position under CPR 38.6 applies. Accordingly, the claimants are not entitled to recover their costs; nor is the defendant denied its costs by reason of any unreasonable conduct on its part.
The next issue is whether the defendant is disentitled for any reason from recovering its costs up to the time of the notice of discontinuance in accordance with CPR 38.6.
Mr Spragge submits that the defendant is not entitled to recover its pre-permission costs, which include the settling of the AoS and summary grounds of defence, by reason of CPR 44.10(2(b), which provides that an order granting permission to apply for judicial review will be deemed to include an order for applicant's costs in the case. As I understand it, Mr Spragge accepts that it is the practice of this court, when making an order of costs in the defendant's favour, following the successful defence of a claim, to include pre-permission costs if it be appropriate to do so, having regard to the court's discretion as to costs under CPR 44.2. However, he submits that that practice is wrong and does not have proper regard to CPR 44.10(2)(b). He submits that as a matter of construction, CPR 44.10(2)(b) prevents a successful defendant from recovering pre-permission costs. If this submission be correct, it would run counter not only to the practice of the Administrative Court in relation to costs but also to the policy consideration referred to by Mr Streeten and by Ouseley J in R (On Application of Smoke Club Ltd) v Network Rail Infrastructure Ltd [2013] EWHC 3830 Admin at paras.6–8.
The basic principle summarised by Sir Anthony Clarke MR in R (On Application of Davy) v Aylesbury Vale District Council [2008] 1 WLR 878, 885 is that —
“… costs follow the event in public law cases, as in others, because, where an unsuccessful claim is brought against a public body, it imposes costs on that body which have to be met out of money diverted from the funds available to fulfil its primary public functions.”
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