R (Ewing and another) v Office of the Deputy Prime Minister and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lord Justice Dyson,Lord Justice Brooke |
| Judgment Date | 20 December 2005 |
| Neutral Citation | [2005] EWCA Civ 1583 |
| Docket Number | Case No: C1/2005/0826 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2005 |
[2005] EWCA Civ 1583
Lord Justice Brooke
Vice-President of The Court of Appeal (Civil Division)
Lord Justice Dyson and
Lord Justice Carnwath
Case No: C1/2005/0826
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Ouseley
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant appeared in person
Saira Kabir Sheikh (instructed by Thomson Snell & Passmore) for Royal British Legion as First Interested Party John Pugh-Smith (instructed by CMS Cameron McKenna) for Pegasus Homes as Second Interested Party
Charles Bourne (instructed by the Treasury Solicitor) appeared as advocate to the court
The Defendants did not appear and were not represented
Introduction
Background facts
On 18th February 2005 an application was made for judicial review of four planning decisions relating to a proposed development in Weston-Super-Mare. On the first page, the claimants were named as "(1) Terence Patrick Ewing (proposed) and (2) Keith Vernon Hammerton"; and their address was given as that of "the Euston Trust" in London. In section 8 of the claim form ("statement of facts relied on") , Mr Ewing was described as "a heritage and environmentalist issues campaigner", who had been "involved in several controversial planning applications in London and other parts of the country", and had assisted in setting up the Euston Trust, "a newly formed "National Heritage Nature and Environmental Preservation Society". Mr Hammerton was described as "a heritage campaigner".
It was noted that the development site included a building known as the Severn Croft, "a former hotel and of considerable architectural interest". There was no indication of any more specific reasons for the claimants' interest in this particular development or in this locality. The statement of truth was signed by them both as "claimants". The claim form was accepted and stamped on 18 th February by the Administrative Court office. It was listed as CO/1057/2005.
The application was validly made as respects Mr Hammerton. However, Mr Ewing as a vexatious litigant (under an order made in 1990) was prohibited from commencing proceedings without leave of the court. He had not obtained leave by the 18 th February. On the same day he lodged an application for "leave to apply retrospectively". His witness statement described him as "a Heritage Campaigner of the Euston Trust". Again it gave no indication of any reasons for his special interest in this site, but relied generally on the grounds in the judicial review claim. Apart from the word "(proposed) " after his name on the first page, the judicial review claim form gave no indication that Mr Ewing needed permission to commence proceedings. Mr Ewing now accepts that he should have made that clear.
In the claim form, three of the decisions under challenge (between January 2003 and November 2004) were attributed to the North Somerset District Council, as local planning authority; the fourth (December 2004) to the Office of the Deputy Prime Minister (the First Secretary of State) . It named three "other interested parties": the Royal British Legion ("RBL") , Pegasus Retirement Homes plc ("Pegasus") , and Dorchester Land Ltd ("Dorchester") . RBL is the owner of the site. Pegasus and Dorchester are developers who are or have been associated with the development proposals.
On 23 rd February 2005, copies of the judicial review form were sent under a cover of a letter written by Mr Hammerton, in the name of the Euston Trust, to the two defendants and the three interested parties. In due course, all five responded with acknowledgments of service and statements of grounds for resisting the claim. In the meantime, on 10 th March, Mr Ewing's section 42 application came before Forbes J on paper. It had been given the same number (CO/1057/2005) as the judicial review application. He ordered that it should be adjourned for oral hearing. He gave no further explanation, and he made no direction as to the appearance of any other parties. On 23 rd March the Administrative Court office sent a letter to RBL (and, I assume, to the other parties) indicating that "the above matter" had been listed for mention on 8 th April 2005, with a time estimate of 20 minutes. The letter gave the reference number CO/1057/2005, and the heading referred to the judicial review proceedings. There was no specific reference to the section 42 application, nor any other reference to the subject-matter of the mention.
The hearing before Ouseley J
There was a hearing before Ouseley J on 8th April. On that occasion, Mr Ewing and Mr Hammerton were present in person; and one of the interested parties, RBL, attended by counsel. The judicial review application had not yet been formally considered on paper. However, Ouseley J directed that it be heard with Mr Ewing's application under section 42 –
".. as it is a necessary part of understanding whether his claim under the 1981 Act should be granted."
He added –
"There do not appear to be any significant differences between a standard which a case has to reach in order for permission to be granted under section 42(3) and the threshold which is habitually applied by this court in deciding whether permission to apply for judicial review should be granted. Accordingly, the application by Mr Ewing has been considered with the application for permission to apply for judicial review. If he succeeds in the one, he succeeds in the other; and, if he fails in the one, he fails in the other."
After hearing argument, he delivered a judgment in which he gave his reasons for refusing both applications. He made no ruling on the standing of the claimants, commenting –
"I do not consider it normally appropriate, and do not do so here, to decide standing without consideration of the merits."
He held that, on delay grounds alone, the challenge to the first two decisions was "untenable". In relation to the third decision (the November 2004 resolution) , he discussed the merits of the challenge, which related largely to the extent to which the authority had taken proper account of guidance note PPG15 and of an objection from English Heritage, before authorising demolition of the Severn Croft. He rejected the grounds of challenge as "unarguably wrong". As to the Secretary of State's decision not to revoke, the claimant's request, and the response to it, had been made on the mistaken basis that the relevant permissions had been issued. Ouseley J accepted that there remained the possibility that the Secretary of State might be persuaded to call in the application for his own decision. However, he considered that to be an insufficient basis for keeping the present proceedings on foot:
"The right course to follow is for a proper application for call-in to be made – an application that would explain why it was said that this case raised more than local concerns. That would be the relevant consideration… The Secretary of State can then make a considered reply to that application."
There followed an application by counsel for RBL for the costs of the acknowledgement of service (not of the actual hearing) in accordance with the Mount Cook principles (see below) . Mr Ewing resisted the application against himself, on the grounds that the acknowledgement of service provisions were not relevant to his own application under section 42. Conversely, he resisted any order against Mr Hammerton, on the grounds that he had "played only a negligible role in the proceedings". The transcript records Mr Hammerton as saying that his own involvement had been "… to support Mr Ewing in what he was doing as goodwill rather than anything else."
Ouseley J ordered them both to pay the costs of RBL to be assessed, on a joint and several basis. Mr Hammerton was liable on any view, "having participated in these proceedings and caused costs to be incurred". He continued:
"So far as Mr Ewing is concerned, it would be to my mind highly undesirable if the technical point that he raises were to mean that costs were properly incurred by an interested party and yet they had no means of obtaining costs for dealing with the somewhat unusual position that arises here. It seems to me that, if a vexatious litigant seeks permission to institute judicial review proceedings, the two applications, permission under section 42 and permission to apply for judicial review, have to be dealt with together in order for an expeditious result to be achieved in the interests of everybody.
It therefore follows to my mind that the costs consequences should be the same as if this were an ordinary application for permission to apply for judicial review and the fact that strictly there has been no actual service because that is not yet permitted by the rules, should not stand in the way of an order for costs."
He gave Mr Ewing section 42 permission to apply for permission to appeal to the Court of Appeal, solely in respect of the order for costs. On 30 th June Brooke LJ gave Mr Ewing permission to appeal limited to this issue. There is no outstanding appeal by Mr Hammerton against the costs order as it affects him.
Vexatious litigants and judicial review
Before considering the issues in the appeal, it is necessary to say something about the relationship between the two procedures. In one of Mr Ewing's early cases, Ex parte Ewing [1991] 1 WLR 388, it was decided that an application for permission to apply for judicial review is itself a...
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