John Noel Croke v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Her Honour Judge Robinson |
| Judgment Date | 11 October 2016 |
| Neutral Citation | [2016] EWHC 2484 (Admin) |
| Docket Number | CO/1647/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 October 2016 |
[2016] EWHC 2484 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Her Honour Judge Alice Robinson
(Sitting as a Judge of the High Court)
CO/1647/2016
The Appellant appeared in person
Ms Ofonimeh Umoh Abudu (instructed by the Government Legal Department) appeared on behalf of the Respondent
For the reasons in the judgment I am just about to hand down, the claim is dismissed. I have lots of copies here. I assume those would have been circulated. Mr Croke, do you not have one?
MR CROKE: Not of the hand down judgment.
Thank you very much for your corrections which are taken on board. The Secretary of State has an application for costs. What do you say about that, Mr Croke?
MR CROKE: My Lady, we had a communication yesterday on costs and we agreed that we would do costs by writing to the court and asking the court to make a decision on paper on submissions.
I was told that you were not prepared to agree that, which is why I thought we were going to deal with costs now.
MR CROKE: I am happy to do it either way, my Lady, but the email communication clearly says that I am content to deal with costs applications on paper.
I sorry. I was not aware of that. We are all here now. We can deal with it now. You have seen their schedule, presumably.
MR CROKE: I have seen their schedule.
I am so sorry to interrupt. Can I just deal with it in stages. Leaving to one side the precise amount for the moment, do you accept that in principle you should pay the costs?
MR CROKE: In principle, I believe there is a decision at the discretion of the court as to whether I should or should not in the full circumstances of the case, dealing with a public law matter of public interest and not purely for my own interest. So, in a permission hearing, there are various things set out, to my understanding, as to what costs may or may not be awarded or are likely to be awarded. We did not even get to that permission stage.
We were dealing fundamentally with a preliminary issue of jurisdiction. Therefore, on that question, if costs should be assessed then they would be by nature very limited, because no grounds have been submitted in response to the actual claim other than, "You are out of time".
I understand that, but, Mr Croke, why do you say you should not pay any costs or do you accept you should pay some?
MR CROKE: I believe that the judgment is very finely balanced as to which way the decision went. I think the issues raised, as I say, are of public — are of legal significance or potential legal significance and that bringing the matter to the attention of the court actually provided a useful service in its own right. As I say, fundamentally it was an issue much to do with — I put it slightly differently. If the GLD did not put in a submission to strike out then it would have been to the court's discretion as to whether to strike out on its own decision.
Based on the review of the papers, the court could have said we are striking out and, therefore, I would have then made an application to the court for the court to review its decision. The GLD would have been not interested. They have said "Well, we have not partaken in the issue whatsoever." In that scenario, it would have been purely me addressing the court on the question of whether the court should or should not take the jurisdictional point.
As it happens, it was the GLD who submitted a request for the court to strike out, but that was not an application. It amounts to the same thing in practice, but I am just putting the flip side. Had they not done so, the court in its own right could have said, "Mr Croke, you are out of time," and then I would have requested an oral hearing and we would have had the same oral hearing without, obviously, the benefit of counsel for the GLD putting their legal submissions, which the court did benefit from.
There is no question that they did put in legal submissions by counsel, which was invited by Ouseley J. It was not ordered by Ouseley J, but it was invited and, hence, you would expect them to turn up if they are invited. So in that question Ouseley J wished their opinion, their legal opinion, and they attended. So, it really is bringing it to the discretion of the court completely as to whether costs should be awarded against the claimant in this particular circumstance.
I do not know whether it is relevant, but I think when dealing with costs I think the merits of the argument have to slightly weigh beyond where costs ought to lie. How significantly has the other party won their argument or how significantly has another party lost their argument? In this particular scenario, I cannot really — I realise where the judgment has gone, but the balance in there to me appears quite delicate.
All right. If I decided you should pay some costs, do you have anything to say about the amount in the schedule?
MR CROKE: Yes. Counsel fees I think seem very reasonable in my view, because there is a number in the £600s for review of the papers and a similar figure for attendance. That appears to me reasonable. With respect, all of the other legal fees standing behind that, I do not understand those figures at all, because the only submission was a single letter to the court by the GLD saying that this claim is out of time and inviting the court to strike the claim out. That does not take an awfully long time to get to that position you know. Are we seeking a strike or not?
If there are lots of hours behind that in the schedule dealing with the actual merits of the case, well, I have not seen any benefit of those hours nor has the court, because we have not seen any comments from the GLD as to, with respect, the view of the actual grounds. So, you know, I would say a very small amount of time for the GLD solicitors, their time, because it was simply a question, "This is out of time. We will make an application to strike out." Then obviously Ouseley J did invite counsels' opinion from the GLD. They did attend. Those costs were incurred. Then it is a question of where should they lie, given the benefit of that legal counsel.
That is really where I come to it on. Obviously, if there was not this jurisdictional question and the application for permission was refused that would have been the end of it. The applicant would not be required to pay any costs in that scenario if there was not a hearing and it did not go any further.
All right. Lastly, do you want to say anything to me about your ability to pay? Is that something I need to take into account?
MR CROKE: Absolutely. I am afraid —
I do not want you to be embarrassed. If you would prefer to make those...
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