Richmond upon Thames LBC v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TUCKEY |
| Judgment Date | 25 January 2006 |
| Neutral Citation | [2006] EWCA Civ 193 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1 04 6013; C1 02 2232; C1 02 6008; C1 04 2232 |
| Date | 25 January 2006 |
[2006] EWCA Civ 193
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATION)
(LORD JUSTICE WALLER, MR JUSTICE LAWS,
MR JUSTICE JOWITT, MR JUSTICE LATHAM)
Royal Courts of Justice
Strand
London, WC2
Sir Anthony Clarke Mr
Lord Justice Tuckey
Lord Justice Jonathan Parker
C1 04 6013; C1 02 2232; C1 02 6008; C1 04 2232
MS HELEN MOUNTFIELD (instructed by Messrs Richard Buxton, 40 Clarendon Street, CAMBRIDGE, CB1 1JX) appeared on behalf of the Appellant.
MR MARTIN CHAMBERLAIN (instructed by Treasury Solicitors, LONDON, WC2B 4TS) appeared on behalf of the Respondent.
Although the councils do not, as I understand it, say that the underlying decisions would have been different, they say that in so far as they were adverse to them, the decisions on costs would or might have been different, and that justice requires this court to give them permission to appeal out of time in Richmond 1, to hear the appeal out of time in Richmond 2 and in each case to allow the appeals. They recognise that the applications are long out of time, but rely upon the decision of Grand Chamber of the European Court of Human Rights in Hatton v United Kingdom [2003] 37 EHRR 28 to the effect that, as the majority of the court said at paragraph 141:
"The scope of review by the domestic court was limited to the classic English public law concepts, such as irrationality, unlawfulness and patent unreasonableness and did not at the time (that is prior to the entry into force of the Human Rights Act 1998) allow consideration of whether the claimed increase in night flights under the 1993 Scheme, represented a justifiable limitation on the right to respect for the private and family lives or the homes of those who live in the vicinity of Heathrow airport."
The court added in paragraph 142:
"In these circumstances, the Court considers that the scope of review by the domestic courts in the present case was not sufficient to comply with Article 13."
I shall return to Hatton v United Kingdom in a moment.
The application in Richmond 4 is somewhat different. I will return to it after considering the applications in Richmond 1 and Richmond 2. The three cases all involve challenges by the council to decisions of the Secretary of State for Transport (the "Secretary of State"), in which he had imposed controls on night flying over London under The Civil Aviation Act 1982 ("the 1982 Act"). The irony of the present situation is that the substantive applications in Richmond 1 and 2, before both Laws and Latham JJ, succeeded. Laws J held that the Secretary of State's decision to introduce new restrictions upon night flying over the three main London airports, based on a quota system, according to the noise of the aircraft used, was contrary to the terms of section 78(3) (b) of the 1982 Act, because the new restrictions did not:
"specify the maximum number of occasions on which our aircraft or descriptions so specified may be permitted to take off or land"
as required by section 78(3) (b), but only sought to impose control by reference to levels of exposure to noise. Accordingly, although the Secretary of State had intended to act within the purpose of section 78(3), he had done so by an impermissible method. His decision was therefore invalid and a declaration would be made to that effect.
Laws J set out his reasons for reaching that conclusion at [1994] 1 All ER 579 to 594. It was not therefore necessary for him to rule on other grounds of challenge advanced by the councils. However he did so, and between pages 594 and 597 rejected a challenge entitled, "Legitimate expectation and the 1988 policy". He then considered what he called "Wednesbury and the 1988 policy" and a number of specific issues, each of which was rejected on the basis that it amounted to what Laws J called a "merits challenge".
It is perhaps sufficient for present purposes simply to refer to this passage at page 598 e to h:
"As regards to the second question on this part of the case which I have identified, I am quite unable to hold that the inference set out by Dr Ollerhead at para 19(c) of his first affidavit gives rise to any Wednesbury complaint. Mr Gordon's argument here (in common, I am bound to say, with much else in his case) is a disguised, though elegant, plea upon the merits. If I were a judge of the merits, I might suppose that Dr Ollerhead's inference as to the extent of any problem relating to sleep deprivation is somewhat fragile; but it is manifestly not for me to express any such view, far less treat it as the basis for the grant of relief in judicial review proceedings. It cannot be said that the reasoning under criticism is perverse in the established legal sense. In my judgment this is an area in which any assault on the Secretary of State's decision can only be mounted in an arena outside the court room. I am not suggesting that I would applaud such an assault or deplore it. I say only that the applicant's complaints on this part of the case are not legal complaints, and thus I am in no way concerned with their strengths and weaknesses."
The council thus succeeded but the judge did not award them all their costs. The last paragraph of his judgment on the merits was in these terms at page 600 g to j:
"In the result these applications must succeed on the single ground as to the construction of s78(3) (b) upon which I have found in Mr Gordon's favour. That ground could have been determined by reference only to the statute and a description of the intended policy: a few pages of documentation. In fact the material before me on the whole case runs to hundreds of pages. I do not say that all of Mr Gordon's other points were unarguable and ought not to have attracted leave, though I think some of them fall into that category. I do not know whether in giving leave Sedley J, before whom there were oral submissions in court, expressed any view as to the relative merits of any of the grounds. But I think the case illustrates the need, which I regard as pressing, for the provisions of RSC Ord 53 to allow the court to refuse leave on some grounds, while granting it on others, as its view of the application's merit dictates."
Laws J awarded the councils only 25% of their costs. There is no record of the reasons given by him for refusing to award more. I will return to his reasons after saying something about Richmond 2. Neither party appealed Richmond 1.
In Richmond 2 the councils challenged different decisions of the Secretary of State. Latham J, in a lengthy judgment, upheld the challenge on two points. The first was based on the fact that the consultation paper was misleading and misled the councils, with the result that they were deprived of making the important point that the Secretary of State's proposals were contrary to his own expressed policy objection: see [1995] Env LR 390 at 405. The second was that the Secretary of State did not take into consideration the fact that the proposed quotas, if fully utilised, would probably result in an increase in noise levels, contrary of the Secretary of State's expressed policy: see also page 405.
In short, as Latham J put it at page 408:
"For all these reasons, I consider that the respondent was empowered to make orders limiting aircraft movements in the form that he has, but that the decisions must be declared unlawful by reason of his failure to provide a full and fair consultation process, and for failing to take into account the fact that the decisions would permit movements at Heathrow which would produce greater noise than that which was experienced at Heathrow in summer 1988, on the basis of his own calculations, contrary to his expressed policy."
However, the councils in addition repeated arguments before Laws J which he had said went to the merits. Latham J followed the decisions of Laws J on those issues. On costs, Latham J accepted the submission that the councils had re-run arguments rejected by Laws J but he awarded them 75% of their costs.
The reasons which Laws J gave for refusing the councils 75% of their costs in Richmond 1 can I think be gleaned from the argument on costs before Latham J, of which we have a record. The same counsel appeared in both Richmond 1 and 2. Miss Mountfield did not come on the scene until Richmond 4 in the Court of Appeal. Mr Ian Burnett QC submitted before Latham J that the councils should not recover more than a proportion of their costs, just as Laws J had awarded only 25% of the costs in Richmond 1. Mr Richard Gordon QC, who appeared for the councils, drew Latham J's attention to the principle in Re Elgindata Ltd (No. 2) [1992] 1 WLR 1207 that costs should follow the event unless the successful party had acted unreasonably or improperly.
It was common ground before us that in reaching his decision in Richmond 1, Laws J so held, or at least that he held that the issues on which the councils failed, including the Wednesbury issues, were merit issues and not legal issues which should not have been brought by way of judicial review. Latham J took the same view of the issues before him, which had already been decided by Laws J in Richmond 1. It was for that reason that he only awarded the councils 75% of their costs, even though they had obtained the order sought. Latham J granted both parties permission to appeal but neither party took steps to have the appeals heard. The councils correctly accept that they need the permission of the court to pursue an appeal in Richmond 2 after all this time.
As I see it...
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