Rural Integrity (Lisburn 01) Limited's Application v Planning Appeals Commission
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Judgment Date | 10 April 2019 |
| Neutral Citation | [2019] NIQB 40 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 10 April 2019 |
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Neutral Citation No: [2019] NIQB 40
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC10936
Delivered: 10/04/2019
WITH APPENDICES
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY RURAL INTEGRITY (LISBURN 01)
LIMITED FOR JUDICIAL REVIEW
-v-
PLANNING APPEALS COMMISSION
________
PROTECTED COSTS AND SECURITY FOR COSTS
MCCLOSKEY J
[1] By its Order dated 09 March 2019, distributed electronically in the wake of an inter
– partes hearing, the court determined the Applicant’s application for a protective costs
order and the Respondent’s application for security for costs as follows:
(a) In the event of the Applicant having to pay costs, the amount recoverable
will not exceed £10,000.
(b) The Applicant will make security for the Respondent’s legal costs and
outlays in the same amount, ie £10,000, including VAT, and shall do so in
accordance with the applicable procedural requirements and mechanisms
by 19 March 2019.
Costs were reserved. This is the reasoned judgment of the court.
[2] The Applicant is a registered limited company with a share capital of £100 and a
single director, one Gordon Duff, who represents this litigant, together with other
comparable and related limited companies, in a total of 33 judicial review challenges filed
with the court during a six month period beginning on 05 March 2018 and ending on 17
September 2018. There has been a multiplicity of challenges, listings and orders in the
court’s unrelenting attempts to devise fair, proportionate, practical and efficient case
management mechanisms and arrangements for this unprecedented group of cases.
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[3] The Respondent in these proceedings is the Planning Appeals Commission for
Northern Ireland (the “PAC”). The Applicant challenges the decision of the PAC dated 11
December 2017 allowing an appeal against a refusal of planning permission and, thereby,
authorising the development of two dwellings and detached garages at an “infill site” at
50/52 Ballee Road West, Ballymena. The successful planning applicant has been
represented by solicitor and counsel in these proceedings.
[4] The application for leave to apply for judicial review proceeded inter-partes on 07
June 2018, before Sir Ronald Weatherup. The judge reserved his decision and, the
following day, promulgated an oral ruling whereby leave to apply for judicial review was
granted.
[5] The available evidence includes a full transcript of the judge’s leave decision. It is
abundantly clear from this that leave was granted subject to no restrictions or conditions
applicable to either the Applicant or the PAC. The court rejects any argument to the
contrary.
[6] By a summons, with supporting affidavit, issued on 15 October 2018, the PAC
applied to the court for an order compelling the Applicant to make security for the costs
of the PAC under Order 23 Rule 1 and Order 53 Rule 8 of the Rules of the Court of
Judicature. Attached to the summons was a schedule indicating that the PAC’s estimated
costs of defending these proceedings total £36,000 plus VAT. The accompanying affidavit
contains particulars of the heavy case management which these proceedings have entailed
to date. This affidavit posits the substantially smaller sum of £20,000 plus VAT in respect
of legal costs.
[7] All of the registered companies in question are, in non-technical legal terms,
established, owned, managed and operated by Mr Duff. The only expenditure which they
have incurred is the court fees involved in initiating each of the judicial review
applications and any subsequent ancillary or incidental fees. Mr Duff asserts that this is
effected by the mechanism of directors’ loans to the companies, of which there is no
supporting evidence. He estimates that each judicial review case generates fees of this
genre of some £260/£270. In two of the 33 cases Mr Duff instructed solicitors to act on
behalf of the relevant applicant company. The court’s understanding of the evidence is
that this retainer has been terminated.
[8] There is a second interlocutory application requiring adjudication. By this
application the Applicant seeks a protective costs order under the (in shorthand) Aarhus
Convention Regulations. It would appear from the pertinent affidavit sworn by Mr Duff
(21 May 2018) that the order sought was initially one whereby any legal costs recoverable
from the Applicant would not exceed £10,000 plus VAT. The court construes Mr Duff’s
more recent stance, however, to be that a protective costs order should be made conferring
on the Applicant an outright costs indemnity or exemption or, at worst, limiting its costs
exposure to its share capital of £100. See regulations 3(3) and 6 of the Aarhus Convention
Regulations.
[9] The evidence/submissions emanating from Mr Duff include assertions that (a) he
is owed some £5,000 by the companies, representing court costs incurred in the various
judicial reviews and (b) he estimates that his total costs in these proceedings will be of the
order of £5,000/£6,000, a sum which he will seek to recover from the PAC in the event of
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the legal challenge succeeding. There is no evidence whatsoever of Mr Duff’s personal
means or resources. Nor is there any evidence of the Applicant, the other companies or
the collective legal proceedings being financed, partly or otherwise, by sources other than
Mr Duff.
[10] The topic of security for costs is governed by Order 23 of the Rules of the Court of
Judicature. Rule 1 provides:
“1. - (1) Where, on the application of a defendant to an
action or other proceeding in the High Court, it appears to
the Court-
(a) subject to paragraph (4), that the plaintiff is
ordinarily resident out of the jurisdiction, or
(b) that the plaintiff (not being a plaintiff who is suing
in a representative capacity) is a nominal plaintiff
who is suing for the benefit of some other person
and that there is reason to believe that he will be
unable to pay the costs of the defendant if ordered to
do so, or,
(c) subject to paragraph (2), that the plaintiff's address
is not stated in the writ or other originating process
or is incorrectly stated therein, or
(d) that the plaintiff has changed his address during the
course of the proceedings with a view to evading the
consequences of the litigation, or
(e) that the plaintiff is a company or other body
(whether incorporated inside or outside Northern
Ireland) and there is reason to believe that it will be
unable to pay the defendant’s costs if ordered to do
so,
then if, having regard to all the circumstances of the case,
the Court thinks it just to do so, it may order the plaintiff to
give such security for the defendant's costs of the action or
other proceeding as it thinks just.
(2) The Court shall not require a plaintiff to give
security by reason only of paragraph (1)(c) if he satisfies the
Court that the failure to state his address or the mis-
statement thereof was made innocently and without
intention to deceive.
(3) The references in the foregoing paragraphs to a
plaintiff and a defendant shall be construed as references to
the person (howsoever described on the record) who is in
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