Moore's (Wallisdown) Ltd v Pensions Ombudsman and another; Royal and Sun Alliance Life and Pensions v Pensions Ombudsman and another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ferris |
| Judgment Date | 21 December 2001 |
| Judgment citation (vLex) | [2001] EWHC J1221-7 |
| Docket Number | Cases No: CH/2001/APP/010363 and CH/2001/APP/010371 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 December 2001 |
[2001] EWHC J1221-7
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Ferris
Cases No: CH/2001/APP/010363 and CH/2001/APP/010371
In the Matter of the Pension Schemes Act 1993
and
In the Matter of an Appeal From the Determination of the Pensions Ombudsman Dated 4 April 2001
Mr Peter Crampin QC and Mr Piers Feltham, instructed by Messrs Frettens, The Saxon Centre, 11 Bargates, Christchurch, Dorset, BH23 1PZ for Moore's (Wallisdown) Limited.
Mr Paul Newman, instructed by Messrs CMS Cameron McKenna, Mitre House, 160 Aldersgate Street, London EC1A 4DD, for Royal and Sun Alliance Life and Pensions Ltd.
Miss Elisabeth Laing, instructed by The Pensions Ombudsman, 11 Belgrave Road, London SW1V 1RB for the Pensions Ombudsman.
APPROVED JUDGMENT (ON COSTS)
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
The Hon Mr Justice Ferris
Mr Justice Ferris
On 21st November 2001 I handed down a judgment allowing two appeals from a determination of the Pensions Ombudsman dated 4th April 2001. I now have to decide certain questions relating to the costs of these appeals. As one of these questions involves a point of principle I reserved my decision, which I now give.
The Ombudsman's determination was made in respect of a complaint by Mr Garwood, who is a member of the pension scheme referred to in the determination as Moore's (Wallisdown) Ltd Company Retirement Account. The effect of the determination was to uphold Mr Garwood's complaint and to require Moore's (Wallisdown) Ltd (" Moore's"), which is the trustee and employer for the purposes of the scheme, to secure the provision of additional benefits for Mr Garwood. The appeals on which I gave judgment were made by Moore's and the Royal and Sun Alliance Life and Pensions Limited ("R&SA") which is the insurer for the purposes of the scheme.
At the hearing of the appeals Moore's and R&SA were each separately represented by solicitors and counsel. Mr Garwood took no part in the appeals, although he had been duly served with the notices of appeal. The Ombudsman appeared by solicitors and counsel and argued in support of his determination.
Neither of the successful appellants seeks any order for costs against Mr Garwood, but both of them seek such an order against the Ombudsman. Their applications give rise to two questions. The first is whether and to what extent an order for costs should be made against the Ombudsman when he has appeared on an appeal and has unsuccessfully sought to uphold his decision. The second is whether any order for costs which is made against the Ombudsman should be in respect of the costs of both appellants or only one of them.
A. To what extent should an order for costs be made against the Ombudsman ?
Appeals from a decision of the Pensions Ombudsman fall within a wider class of "statutory appeals" to which CPR 52 PD 17 applies. This class extends to all cases where
"under any enactment an appeal (other than by way of case stated) lies to the court from a Minister of State, government department, tribunal or other person."
It is a requirement of the practice direction that, in the case of every statutory appeal, the notice of appeal must be served on the tribunal or other person from whose decision the appeal is brought (see CPR 52 PD 17.5). A similar requirement was formerly imposed by RSC Order 55, Rule 4. As I explained in my judgment on the substantive appeals, service of the notice of appeal on the Ombudsman does not automatically make him a respondent to the appeal, although the court hearing the appeal commonly permits him to be a party to the appeal. The Ombudsman's participation in the appeal is frequently, indeed usually, of considerable assistance to the court, particularly where, as in the present case, the appeal is brought from a decision of the Ombudsman in favour of a complainant who lacks the means to appear and seek to uphold that decision.
In the case of appeals from tribunals other than the Pensions Ombudsman there is a settled practice that if the tribunal takes no part in the appeal an order for costs will not be made against it, but if it does appear and makes representations in support of its decision it makes itself at least potentially liable for costs in the event that its decision is reversed.
In relation to appeals from magistrates the principles were recently stated by Rose LJ giving the judgment of the Divisional Court in Reg. v Newcastle-under-Lyme Justices, ex parte Massey and others [1994] 1 WLR 1684. The third and fourth of these principles are particularly relevant. So far as material they are as follows
"(iii) Justices who merely file affidavits and do not appear before the Divisional Court or the High Court will not, without more, be visited with a costs order (Review of Justices Decisions Act 1872, section 2; per Lord Goddard C. J in Ex parte Davies [1957] 1 WLR 809 and Lord Parker C.J. in Ex parte Roberts [1960] 1 WLR 585, recently reasserted in Ex parte Farmery 153 J.P. 257). This is so despite the fact that, in judicial review proceedings, justices are served with notice of proceedings under Ord. 53, r. 5(3) and are therefore a party within section 151(1) of the Supreme Court Act 1981. Albeit that they are a party, for over a century it has not generally been the practice to award costs against them in prerogative writ and judicial review proceedings and that practice, reiterated by successive Lord Chief Justices, must have been known to Parliament at the time of the 1977 and subsequent amendments to Order 53 and of the enactment of the Supreme Court Act 1981, sections 31 and 51, and of the Statute Law (Repeals) Act 1993.
(iv) Justices should not generally appear before the Divisional Court or the High Court unless their bona fides are called into question or there are other exceptional circumstances. If they do appear they are unlikely to recover costs if successful (see Ex parte Pearce [1955] 1 QB 41 and they will be at risk as to costs if they lose: see Ex parte Davies [1957] 1 WLR 809."
More recently still, the Court of Appeal has adopted a similar approach in upholding an order for costs which had been made against a coroner who had appeared and unsuccessfully resisted an appeal against his refusal to hold an inquest (see Regina (Touche) v Inner London North Coroner [2001] 3 WLR 148).
It appears that in the earlier years of the jurisdiction to hear appeals from the Pensions Ombudsman a similar practice was applied. The matter was considered by Chadwick J in Providence Capitol Trustees Ltd v Ayres [1996] 4 All ER 760. In that case a pensioneer trustee successfully appealed against a determination of the Pensions Ombudsman in favour of a complainant. The Ombudsman took no part in the appeal, but the pensioneer trustee sought an order that he should nevertheless pay the costs of the appeal. This application was refused by Chadwick J.
In his judgment Chadwick J said (at pages 763–4):
"There is no inflexible rule that a successful litigant is entitled to expect to recover his costs from somebody (see the observations of Lord Bridge in Steel Ford & Newton (a firm) v CPS [1993] 2 All ER 769 at 779–780, [1994] 1 AC 22 at 39–40). Among the examples given by Lord Bridge is that of a party who has been the victim of a misjudgment by an inferior court or tribunal, and who obtains relief on an application for judicial review from the Divisional Court in circumstances in which the court cannot hold either another party or the inferior tribunal itself liable in costs and there is no power to award costs from public funds.
When the tribunal whose decision is overturned on appeal appears on the appeal and makes itself party to the lis, it puts itself at risk as to the costs of the appeal; and if the appeal against its decision is successful it may expect to pay the costs of the appeal: see the observations of Lord Goddard CJ in R v Kingston-upon-Hull Rent Tribunal, ex p Black [1949] 1 All ER 260 and R v Llanidloes Licensing Justices, ex p Davies [1957] 2 All ER 610. But in circumstances where the tribunal does not appear and does not take part, it is only in exceptional cases that an order for costs will be made against it."
He then quoted part of the extract from Massey's case which I have set out above and continued
"That that principle applies not only to justices but also to other tribunals appears from the decision of the Divisional Court in R v Kingston-upon-Hull Rent Tribunal, ex p Black [1949] 1 All ER 260; in particular in a trenchant observation of Lord Goddard CJ, 'If there had been no appearance by the Tribunal of course we should not have given costs in this case'.
In my view those principles should guide me in the exercise of my discretion in the present case. It seems to me that it would be oppressive to make an order for costs against the Pensions Ombudsman in circumstances where his determination has been overturned on appeal but where he has not made himself a party to the lis by appearing at the appeal or taking steps to defend his determination. It would be oppressive because the Ombudsman has no choice whether or not to be named as a respondent and no power, once named as a respondent, to set aside his own order so as to avoid the need for the appeal proceeding. He is necessarily a party and, whether or not on further consideration he comes to the conclusion that his determination was wrong, there is nothing that he can do to prevent the appeal from proceeding. To visit a party with an...
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