The King (on the application of City Portfolio Ltd) v Lancaster City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 03 August 2023 |
| Neutral Citation | [2023] EWHC 1991 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/573/2022 |
[2023] EWHC 1991 (Admin)
Mr Justice Fordham
Case No: CO/573/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
SITTING IN MANCHESTER
Sasha White KC and Charles Bishop (Gateley Legal) for the Claimant
Ian Ponter (Legal Services, Lancaster City Council) for the Defendant
Determination on Costs
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is a Costs Determination on the papers in a planning judicial review claim: see the Administrative Court Judicial Review Guide 2022 at §25.5. Although this is a paper determination, I am satisfied that it engages the open justice principle and I consider it appropriate that the reasons be promulgated as a judgment in the public domain. It was issued to the parties as a non-confidential determination with no embargo on 31 July 2023 to be handed down, with typos etc corrected, on Thursday 3 August 2023.
Context
The disputed costs issues arise out of a claim for judicial review which I had been due to hear, originally fixed for substantive hearing on 1 November 2022, then refixed for hearing on 19 December 2022. The Claimant owns land at Stone Row Head in respect of which it applied to the Defendant for planning permission in November 2020. By a decision on 7 January 2022, the Defendant designated the Lancaster Moor Conservation Area. It did so at speed, based on an emergency report dated 6 January 2022, and without consultation. The catalyst for urgent action was said to be an application dated 13 December 2021 for demolition of the old hospital at Ridge Lea. The designated Conservation Area included within it the hospital at Ridge Lea and the land at Stone Row Head. After a letter before claim (9 January 2022), the Claimant began these judicial review proceedings (17 February 2022). Permission for judicial review was granted on all 6 of the pleaded grounds (4 April 2022).
In August 2022 the Defendant carried out a public consultation on the merits of continued designation of the Conservation Area, to inform a decision whether to retain the designation or vary it. The Claimant responded on 19 October 2022. The outcome was a Report recommending that the Conservation Area decision be rescinded, and a varied Conservation Area designated. That recommendation was adopted by decision on 6 December 2022. The varied Conservation Area still includes the hospital at Ridge Lea and the land at Stone Row Head. The documents can be found in the public domain by anyone wanting more contextual background detail. Skeleton arguments had been filed in the judicial review proceedings on 11 October 2022 by the Claimant, and on 18 October 2022 by the Defendant. The Bundle for the hearing included the August 2022 consultation documents and the Report making the recommendation.
After the decision on 6 December 2022, the parties filed an agreed statement that the decision under challenge having been withdrawn, the claim for judicial review was now academic. I made an Order – by consent – on 13 December 2022 that the claim be withdrawn, with directions for written submissions on the remaining contested issue of costs. The parties duly and promptly filed their commendably concise submissions in accordance with the directions. After a delay within the Administrative Court in Manchester, the submissions came to me on 10 July 2023. I accessed the authorities being cited and read the papers. Neither party had sought an oral hearing of this costs determination and I did not consider a hearing to be necessary. At stake are the Claimant's legal costs which, in total, are put at £83,294.16. The Claimant says it should have its costs. The Defendant says there should be no order as to costs.
Argument
The Claimant submits, in essence as I see it, as follows. It has succeeded. It has obtained a decision on the merits of a Conservation Area, arrived at after a public consultation and on consideration of the product of that consultation. That, in substance, is what it was seeking to achieve by the claim for judicial review. Nothing more could realistically have been achieved by the claim. The grounds argued that a Conservation Area could not lawfully be designated urgently (ground 1), with a truncated process triggered by focusing on the Ridge Lea hospital demolition (ground 5), without public consultation (ground 2) and legally sufficient enquiry (ground 3) to ensure that relevancies were taken into account (ground 4) and a sufficiency of material to support this as a reasonable decision (ground 6). The August 2022 consultation and December 2022 decision secured all of this. The designation was considered on its merits, with a non-truncated process, with public consultation and full enquiry, ensuring that relevancies were taken into account and ensuring a sufficiency of material to support a reasonable decision. The outcome is just as if the claim had succeeded. This was not an independent supervening event. The disputed issue of ‘causal link’ should be decided in the Claimant's favour. What happened was no coincidence. It was causally linked to the judicial review claim. Why else would it have happened, as it did and when it did. The deficiencies identified in the claim were addressed. The Claimant should recover its costs in full.
The Defendant submits, in essence as I see it, as follows. The August 2022 consultation and December 2022 decision were freestanding events. They made the judicial review claim academic. The Defendant strongly maintains that the urgent action in January 2022, with the absence of public consultation, was lawful. The Claimant does not stand vindicated on the issue of whether there was a breach of applicable public law duties (discussed in cases like R (Silus Investments SA) v Hounslow LBC [2015] EWHC 358 (Admin) [2015] BLGR 391 §§33–39). The disputed issue of ‘causal link’ should be decided in the Defendant's favour. It is “clear” that the decision to rescind the original designation of the Conservation Area was “not caused or contributed to by the Claimant's claim”. There is no “evidence” adduced by the Claimant of “any causal link” between the judicial review claim and the “outcome” – or “policy outcome” – being the revised Conservation Area with its slightly different boundary. The correct position is demonstrated by evidence. The Report, which contained the recommendation accepted in December 2022, “confirmed” that the “process of further consideration” was “motivated solely by the fact that the urgency surrounding the (entirely lawful) January 2022 decision had not allowed for consultation”. Paragraphs 2.3 and 2.4 of that Report provide this evidence and show that the “sole reason” was that the Defendant “then had the opportunity to undertake” a public consultation. What happened had “nothing to do with” the claim for judicial review. There should be no order as to costs.
The Law
The parties have cited R (M) v Croydon LBC [2012] EWCA Civ 595 [2012] 1 WLR 2607; R (Tesfay) v SSHD [2016] EWCA Civ 415 [2016] 1 WLR 4853; Accessible Orthodontics (O) Ltd v NHS Commissioning Board [2021] EWHC 44 (2021) 194 Con LR 181 (TCC); R (City of Wolverhampton Council) v SSHD [2022] EWHC 1721 (Admin). These cases provide a secondary discussion – which I have also considered – of other cases such as R (Boxall) v Waltham Forest LBC (2000) 4 CCLR 258 ( M §31, Tesfay §6); R (Bahta) v SSHD [2011] EWCA Civ 895 [2011] 5 Costs LR 857 ( M §38, Tesfay §8); R (Emezie) v SSHD [2013] EWCA Civ 733 [2013] 5 Costs LR 685 (Tesfay §10); Speciality Produce Ltd v SS Environment [2014] EWCA Civ 225 [2014] CP Rep 29 ( Accessible §25); R (Agyemang) v Haringey LBC [2017] EWCA Civ 1630 (2018) 21 CCLR 101 ( Accessible §26); SM (Afghanistan) v SSHD [2018] EWCA Civ 32 ( Accessible §27) and R (Parveen) v Redbridge LBC [2020] EWCA Civ 194 [2020] 4 WLR 53.
My overriding objective (as in Wolverhampton §1) is to do justice between the parties ( M §32(iii)), having undertaken a reasonable and proportionate attempt to analyse the situation ( M §36). The legal analysis starts with the general principles regarding costs ( CPR44.2(2)(4); Tesfay §5). There is a key question about whether the Defendant is “the unsuccessful party”, and the Claimant “the successful party” ( CPR44.2(2)(a)) who has “succeeded” on the “case” and in the “claim” (cf. CPR44.2(4)(b) and (5)(d)). A claimant who “obtains all the relief which [they] seek[]” is “the successful party” – being “wholly successful” and “vindicated” – which means they are “entitled” to all their costs “unless there is a good reason to the contrary” ( M §§59, 60(i), 61).
It is appropriate to think about the “claim”, the “issue” and the “outcome”. The “outcome” in judicial review – constituting “success” for costs purposes – will often not mean the “ultimate success” ( Tesfay §53) of a “new decision” on the merits which is favourable to, rather than “against”, the “interests of the claimant” ( Tesfay §§57, 67). Often, in judicial review, “the most that can be achieved is an order that the decision-maker reconsider on a correct legal basis”, which means that achieving such an outcome usually constitutes “success” ( Tesfay §§57, 67), having regard to the remedies which “in effect” the claimant had sought ( Tesfay §59). If the new decision is adverse on the merits, the claimant may “stick” by accepting its legality, or “twist” by challenging its legality ( Tesfay §67).
The idea of “success” of a judicial review claim, for the purposes of costs, has been described in subtly different ways. Courts have spoken of whether the claimant “should be regarded...
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