The King (on the application of SO) v Thanet District Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Edis,Lord Justice Arnold,Lord Justice Underhill |
| Judgment Date | 16 May 2023 |
| Neutral Citation | [2023] EWCA Civ 526 |
| Docket Number | Case No: CA-2022-001378 |
| Court | Court of Appeal (Civil Division) |
and
[2023] EWCA Civ 526
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Arnold
and
Lord Justice Edis
Case No: CA-2022-001378
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Anthony Elleray KC sitting as a judge of the High Court
CO/4149/2021
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Tim Baldwin and Ms Lara Simak (instructed by Watkins and Gunn) for the Claimant
Mr Andrew Lane and Mr Jack Barber (instructed by Thanet District Council Legal and Democratic Services) for the Defendant
The Interested Parties did not appear and were not represented
Approved Judgment on Costs
On 14 April 2023 the court handed down its judgment on the substantive claim, see [2023] EWCA Civ 398. The parties have not been able to agree the order which should be made consequent upon that decision. In this judgment I will deal with the issues which have arisen. The parties have lodged written submissions and there has been no further hearing.
The issues concern:-
i) The costs order which should be made in relation to the proceedings up to and including the decision of Mr. Elleray KC refusing permission to seek judicial review after a rolled-up hearing. It is agreed that SO's costs of the appeal and the claim for judicial review should be paid by Thanet District Council.
ii) The application by SO for a payment on account of costs.
When these proceedings were first issued they included a challenge to both section 77 Notices which Thanet District Council had issued in relation to the Land in September and November 2021. The challenge was much more broadly based than the ground on which the court quashed the November section 77 direction. The judgment given on 14 April 2023 records what happened about the September section 77 direction as follows:-
“22. In September 2021 a section 77(1) direction was issued in respect of the land. After some uncertainty as to its scope it has become clear that this related to another group of Travellers who had arrived on the Land without permission after SO and her immediate family had entered with permission. There is no need to say anything more about this, except that it was followed by a complaint under section 78 seeking a removal order which was adjourned on 9 November 2021 to be heard in the magistrates' court on 8 December 2021.”
The parties' submissions
SO's position on costs is that she should be treated as the successful party and awarded her costs of the proceedings in the High Court. In the alternative it is submitted that an issue-based order should result in her being awarded 60% of those costs to reflect the costs of issues on which she did not succeed. She contends that if any order is made in favour of Thanet District Council, the Council should not be permitted to set off those costs against the costs due to SO. The authorities on the relevance of the fact that SO has legal aid to the making of costs orders for and against her are relied on.
Thanet District Council submits that it succeeded on all pleaded issues in the High Court, and lost on only one issue which was actually raised by Mr. Elleray KC at the hearing before him and was not pleaded at all. It therefore submits that the costs order made by the High Court should stand, and it should have its costs of those proceedings. It further contends that it should be entitled to set off its entitlement to costs against its liability to SO in respect of the proceedings in the Court of Appeal.
Discussion and decision
The original claim contended that both section 77 directions were unlawful on four grounds. These may be summarised as follows:-
Ground 1: unlawful/irrationality of the decision to issue and serve a Section 77 Notice on the Claimant.
Ground 2: unlawful service of Section 77 Notice.
Ground 3: unlawful/irrational failure to conduct welfare inquiries.
Ground 4: failure to provide sanitary conditions in accordance with national guidance.
All grounds were refused permission on paper. Grounds 1, 2 and 3 were renewed and refused permission by Mr. Elleray at the rolled-up hearing. Ground 4 was not renewed and remains dismissed. Grounds 2 and 3 have never had permission and remain dismissed. The issue on which SO succeeded was either within ground 1 or was, as Thanet District Council contends, first raised by the judge.
Ground 1 relied on the fact that SO had been given consent by Thanet District Council to reside on the Land, and said, correctly, that both directions were in the same terms and applied to “All Occupants” residing in vehicles on the Land. The original Summary Grounds of Opposition sought to uphold both directions and did not say that the September direction was not effective against SO. That had become...
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