R (Burkett) v Hammersmith and Fulham London BC
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke,Court of Appeal |
| Judgment Date | 15 October 2004 |
| Neutral Citation | [2004] EWCA Civ 1342 |
| Docket Number | Case No: C3/03/1198 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 October 2004 |
[2004] EWCA Civ 1342
Lord Justice Brooke
Vice-President of The Court of Appeal (Civil Division)
Lord Justice Buxton and
Lord Justice Carnwath
Case No: C3/03/1198
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
MR JUSTICE NEWMAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Bacon (instructed by Richard Buxton) for the Appellant
J.R. McManus QC and Andrew Tabachnik (instructed by the Respondents' Legal Services Division) for the Respondents
Simon P. Browne (instructed by the LSC's Policy and Legal Department) for the Legal Services Commission
Nigel Cooksley QC (instructed by the Law Society) for the Law Society
This is the judgment of the court.
This is an appeal by the claimant Sonia Burkett against the order for costs made by Newman J on 18 th June 2003 following his dismissal of her application for judicial review of a planning decision made by the defendants, the London Borough of Hammersmith and Fulham ("the council") . At the outset of the hearing on 21 st July we granted permission to appeal.
This litigation has a long history. Mrs Burkett lives in Fulham in a ground floor maisonette adjoining a very large development site at Imperial Wharf. In February 1998 the interested party St George West London Ltd (which has played no part in the present appeal) lodged an application for planning permission for mixed use development of the site, which was to include over 1,800 residential units, a hotel, public open space, and a riverside walk. It was described at the time as one of the largest current development sites in London. In March 1998 the council, as the local planning authority, requested an environmental statement, and two months later nine different reports were submitted. Newman J said that updates were later provided on three different occasions as revisions to the original proposal were made.
In July 1999, the claimant's solicitor, who had previously been assisting a pressure group on a pro bono basis, wrote to the council on Mrs Burkett's behalf to complain that there were inadequacies in the environmental statement that had been provided. Undeterred by this warning, on 15 th September 1999 the relevant committee of the council resolved to grant outline planning permission subject to certain conditions being fulfilled, and on 12 th May 2000 planning permission was formally granted. In the meantime, on 6 th April 2000 the claimant initiated judicial review proceedings, more than six months after the committee's resolution. On 18 th May 2000 Newman J refused permission to apply for judicial review on the papers, both on the merits of the application and because it had been made out of time. On 29 th June 2000 Richards J considered that the application was properly arguable on the merits, but refused permission on the grounds of delay, a ruling subsequently upheld in this court on 20 th November 2000 at a hearing concerned only with the question of delay.
On 20 th May 2002 the House of Lords allowed the claimant's appeal on the delay point and remitted the matter to the High Court for a ruling on the substantive merits. On 15 th May 2003 Newman J dismissed the application following a four-day hearing, and although permission to appeal on one issue was granted by this court, the claimant did not in the event pursue an appeal against his decision on the merits. We are concerned only, therefore, with the question: Who should pay for all this (ultimately unsuccessful) litigation, and on what basis?
One person who will not pay is Mrs Burkett, who has been in receipt of funding from the Legal Services Commission ("LSC") throughout, with a nil contribution. Other people who will not pay are all those people who opposed the development and who would have stood to benefit from a successful outcome of Mrs Burkett's claim at no expense to themselves whether she won or lost. By one route or another, any liability that is established will fall on public funds. It is well known that the LSC is now very sorely pressed in its efforts to make adequate funding available for civil litigation. It is also well known that local authorities face comparable funding pressures. The importance of this appeal was marked by the fact that both the LSC and the Law Society were granted permission to intervene, and they both made written and oral submissions to the court. We have benefited greatly by the advice of the senior costs judge, Master Hurst, who has acted as our assessor.
About one matter there was no dispute. The claimant's application for LSC funding was made on 3 rd April 2000 and granted on 6 th April 2000. On 1 st April 2000 the repeal of the Legal Aid Act 1988 ("the 1988 Act") and its substitution by the relevant sections of the Access to Justice Act 1999 ("the 1999 Act") took effect. It is common ground that all the issues we have to determine relate to the proper interpretation of the new statutory regime. The Community Legal Services (Costs) Regulations 2000 and the Community Legal Service (Cost Protection) Regulations 2000 also came into effect on 1 st April 2000.
Richards J ordered the claimant to pay the defendants their costs of the permission application subject to costs protection. The precise terms of his order were that
"The Applicant pay the costs of the First Respondent but the determination of the amount of such costs that it is reasonable for the Applicant to pay be postponed generally."
That order has remained undisturbed. We were told that the claimant's bill of costs up to and including the hearing before Richards J amounted to about £10,500. The House of Lords, for its part, ordered the council to pay the claimant's costs in the Court of Appeal and the House of Lords, and we were told that the process of assessment of the claimant's bill had already begun when Newman J heard the substantive claim.
Newman J's costs order, about which the claimant now complains, was in these terms:
"…that the Defendant's costs be subject to detailed assessment if not agreed, and that the Defendant's costs should be set off against the costs which the House of Lords ordered the Defendant to pay the Claimant, linked to the amount of costs to which the Defendant is assessed as liable to pay according to the House of Lords and no more."
In his short judgment Newman J made it clear that he could see no reason for distinguishing the decision of this court in Lockley v National BloodTransfusion Service [1992] 1 WLR 492. Among the contentions he rejected was a submission that the case of Lockley had been decided per incuriam and that it was inconsistent with the decision of this court in Re ADebtor (The Times, 19 th February 1981) . This argument has been repeated on this appeal.
At the hearing of the appeal we were shown figures proffered for illustrative purposes, and when the hearing was over the claimant's solicitor sent us more detailed figures in a letter to which the defendant's solicitors had contributed information about their own costs. The comparative figures (excluding VAT) were:
Party
Solicitors' bill
Counsel's fees
Other disbursements
Total
Court of Appeal(One day)
Claimant
Defendant
£18,487
£3,000
£5,100
£4,000
£1,247
£25,834
£7,000
House of Lords
(Leave hearing & two days)
Claimant
Defendant
£39,946
£5,500
£83,450
£23,800
£11,945
£135,341
£29,300
High Court
(Four days)
Claimant
Defendant
£9,482
£8–10,000
£17,275
£24,300
£969
£27,726
£32–34,300
We must make certain comments about these figures. The defendant's solicitors' bill included disbursements, which is why there is no separate entry under this head. The claimant's lawyers' comparatively low bill in the High Court (where they failed) was charged at the rates prescribed by the relevant regulations. Their bill in the Court of Appeal and the House of Lords (where they obtained an order for costs in their favour), on the other hand, was set at what they regarded as reasonable market rates. These were the figures they claimed, which will in due course be subject to detailed assessment (if not agreed) . We were told that the bills for solicitor's costs were based on time records, and that counsel's fees were based on the fee notes they submitted. We were also told that there were several complex factors, including the high costs case regime, underlying these figures, and that there were a number of factors, not before the court, which might explain the differences between the figures advanced by each side.
This reference to the "high costs case regime" requires explanation. Because her likely costs were to exceed certain defined limits, in February 2001 the claimant was granted a new funding certificate for the proceedings in the House of Lords which prescribed a total costs limit for expenditure in those proceedings of £62,756. Within that limit leading and junior counsel were permitted to recover fees from the LSC at hourly rates which appear from a footnote to the claimant's skeleton argument to have been £50 for junior counsel and £90 for leading counsel.
Although these represent the limit of the fees recoverable from the LSC, by reason of the effect of regulation 107B (3) of the 1989 Regulations solicitors acting for a client funded by the Community Legal Service ("CLS") are able to recover what are described as their "full commercial rates" from the paying party if an order for costs is made in their clients' favour, even though the LSC is only liable to...
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