R (Davey) v Aylesbury Vale District Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Lloyd |
| Judgment Date | 15 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1166 |
| Docket Number | Case No: C1/2007/0417 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 November 2007 |
[2007] EWCA Civ 1166
Sir Anthony Clarke, Mr
Lord Justice Sedley and
Lord Justice Lloyd
Case No: C1/2007/0417
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE WYN WILLIAMS
QB/2006/PTA/0527
Mr R McCracken QC and Mr M Westmoreland Smith (instructed by Messrs Richard Buxton) for the Appellant
Mr J Findlay and Ms J Oscroft (instructed by Messrs Sharpe Pritchard) for the Respondent
Hearing date: Tuesday 16 October 2007
Judgement
The question before the court is whether, as a matter of law or of practice, an order for costs made in favour of a successful respondent to judicial review proceedings includes costs incurred prior to the grant of permission unless these are expressly excluded.
I can take the material facts directly from the judgment of Wyn Williams J, who on 1 February 2007 concluded that the answer was yes.
1. On the 3 rd February 2004 the Defendant granted planning permission and listed building consent to a company known as Mentmore Towers Limited in respect of a scheme of development upon an area of land known as Mentmore Towers. On the 30 th April 2004 the Appellant filed a claim for judicial review in which he sought orders quashing those grants. By an order dated the 11 th March 2005 Forbes J dismissed the claim after a substantive hearing. Permission to proceed with the claim for judicial review had been granted to the Appellant by Richards J (as he then was) on 23 rd September 2004.
2. At the conclusion of the hearing before Forbes J on the 11 th March 2005 he made certain consequential orders one of which was in the following terms.
“… the Claimant do pay 75% of the costs of this claim not to include costs of the permission hearing to be subject to detailed assessment if not agreed and paid by the Claimant to the Defendant's solicitors. ”
3. The parties could not agree upon the bill of costs presented by the Respondent. In consequence, the Respondent sought a taxation of its costs. The taxation was heard by Master Campbell on 3 rd July 2006. Before the Master, the Appellant raised a point which both parties and the Master considered was a point of principle. The point raised by the Appellant was that under the order of Forbes J he should not be liable for any costs incurred by the Respondent before the decision was made to grant him permission to bring his judicial review proceedings except for the costs incurred in preparing the Respondent's acknowledgment of service and grounds of opposition to the claim.
4. In a reasoned judgment the Master rejected the Appellant's contention. He held that under the order of Forbes J the Appellant was liable to pay what he described as “pre-permission costs” subject, of course, to such costs being reasonably incurred. The Respondent was not limited simply to the costs of preparing the acknowledgment of service and grounds of opposition.
5. The Master gave permission to appeal against that ruling.
6. Both parties agree that if the order of Forbes J had been made after a civil trial in the context of a private law dispute the Master's ruling would be correct. However, the Appellant argues that in the particular context of judicial review proceedings the Master's conclusion is wrong. In effect, the case for the Appellant is that the order of Forbes J is to be taken to mean that no pre-permission costs are recoverable (other than the costs of preparing the acknowledgement of service and summary grounds) notwithstanding that there are no words within the order which expressly suggest that is to be the case.
7. It is to be noted that no argument was addressed to Forbes J upon the issue of “pre-permission costs” generally. As his order makes clear, however, he was asked to exclude from the costs payable to the Defendant the costs of the permission hearing an application on the part of the Claimant to which he acceded.
The bill of costs, assessed on the standard basis and reduced by 25% because the council had belatedly met one of the grounds, came to a little under £20,000. Almost £3,000 of this was the cost of the dispute about the ambit of the judge's order. The pre-permission costs in issue (that is to say, excluding the preparation of the council's acknowledgment of service and grounds of opposition) were the costs of obtaining the advice of junior counsel, a total of £1,090 before discounting, together with part of the solicitor's costs of preparation.
It follows that the second appeal now before this court by permission of Sir Henry Brooke concerns an issue of principle which far outweighs the amount at issue. In giving permission Sir Henry wrote:
This appeal raises an important point of practice. I note that it said that different judges in the Administrative Court are exercising their discretion in different ways on the point at issue.
For my part, I would regard the extract from the judgment of Ouseley J in Young (see p 17 of the small bundle) as representing the correct position, but it is incumbent on the costs judge on an assessment to be watchful in relation to the nature of the respondent's pre-permission costs he decides to allow.
It appears to me to be desirable for the full court to carry out an authoritative review of the whole position.
The Practice Statement (Judicial Review: Costs) [2004] 1 WLR 1760 deems the pre-permission costs, if the order is silent on them, to be costs in the case. This will be the norm in cases where permission has been obtained, whether on the papers or on renewal in open court, without opposition. But it is a feature of final costs orders in many judicial review cases that the costs of having unsuccessfully opposed the grant of permission are not to be recovered by the ultimately successful defendant. Here the grant of permission had been vigorously opposed at an oral hearing before Richards J, as he then was. Upon the grant of permission, Mark Lowe QC for the council realistically conceded that the claimant's costs vis-à-vis the council should be the claimant's costs in the case; but Richards J preferred to reserve them. The failure of the council's opposition to the grant of permission was accordingly reflected in the limitation placed by Forbes J upon his eventual costs order.
While therefore Wyn Williams J was right to say that the task of the costs judge was to interpret Forbes J's order by deciding whether it gave the council 75% of all its costs save those of the permission hearing, or 75% of its costs following the permission hearing plus (as was conceded) the costs of its acknowledgment of service and grounds of opposition, the question for this court is wider: it is whether an order that a defendant is to recover its costs in judicial review proceedings which have gone to a full hearing embraces all costs reasonably incurred by it before the grant of permission. That is how the costs judge, Master Campbell, approached the case: he described the issue, correctly, as a point of principle.
The master, having considered authorities to which I shall come in a moment and which, as he recognised, do not speak with single voice, concluded that in principle “the costs of a threatened claim are generally irrecoverable but, if a claim is made …, permission is granted … and eventually the claimant loses, then in those circumstances costs may well be recoverable.” The reason for the guarded final phrase (“may well be”) is of course that the court can always adapt its order to particular circumstances; but the sense of the master's conclusion is that, other things being equal, a costs order in a defendant's favour following a full hearing includes pre-permission costs. Forbes J had not been asked to deal specifically in his order with the pre-permission costs and did not do so.
On appeal Wyn Williams J noted that it was common ground that in an ordinary civil claim an unqualified costs order would extend to costs reasonably incurred in the run-up to the issue of proceedings. The question was whether the same was the case in judicial review. Having reviewed the decided cases he concluded (§20) that these “suggest strongly that very experienced judges of the Administrative Court have considered it open to them to make orders for costs against unsuccessful applicants which include 'pre-permission costs' after a substantive hearing.” Such a conclusion may well be right, but it does not answer the question of principle as to the prima facie meaning of an unqualified costs order. It led the judge, nevertheless, to the view that this was “the most obvious and natural meaning” of Forbes J's order.
I do not think this was an entirely satisfactory basis on which to resolve an issue of general significance to individuals who bring a public authority to court on arguable grounds. What is needed is a general principle upon which costs awarded to a defendant at the end of a full judicial review proceeding are to be assessed, subject always to qualification in any one case. I entirely understand the judge's reluctance to decide more than the case before him, but this court can and I think should look at the issue more broadly.
In doing so I will refer to the costs of preparing and serving an acknowledgment of service with grounds of opposition as acknowledgment costs, and to other pre-permission costs incurred by a defendant as preparation costs.
The purpose of the permission hearing
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