The Public Services Ombudsman for Wales (Appellant/Paying Party) v Patrick Heesom (Respondent/Receiving Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 22 October 2015 |
| Neutral Citation | [2015] EWHC 3306 (QB) |
| Date | 22 October 2015 |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2015/0269 |
[2015] EWHC 3306 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE SENIOR COURTS COSTS OFFICE
(MASTER HAWORTH)
The Royal Courts of Justice
Strand
London
WC2A 2LL
Mr Justice Hickinbottom
Case No: QB/2015/0269
Vikram Sachdeva QC (instructed by Browne Jacobson LLP) appeared for the Appellant
Martin Westgate QC (instructed by Howe & Co Solicitors and Robins Costs Consultants Ltd) appeared for the Respondent
(As Approved)
Background
From 1990, Patrick Heesom ("Mr Heesom") was a local councillor, first on Clwyd County Council and then, following the reorganisation of local authorities in Wales, on Flintshire County Council ("the Council").
In 2009, a complaint was made to the Public Services Ombudsman for Wales ("the Ombudsman") about Mr Heesom's conduct as a councillor, under the procedure set out in the Local Government Act 2000 ("the 2000 Act"), which still applies in Wales although no longer in England. In a lengthy report, the Ombudsman found that there was evidence of breach of the Council's Codes of Conduct serious enough to warrant reference to the Adjudication Panel for Wales for adjudication by a case tribunal.
The matter was referred. The proceedings before the case tribunal were substantial, occupying nearly 60 hearing days over many months. In two decisions, issued in June and August 2013, the case tribunal published its findings in relation to fact, breach and sanction. It found Mr Heesom had committed fourteen breaches of the Codes of Conduct, and it disqualified him from being a local councillor for thirty months.
By section 79(15) of the 2000 Act, an appeal against the case tribunal's decisions lies to "the High Court". Mr Heesom exercised that right by lodging an Appellant's Notice in the Administrative Court Office at the Royal Courts of Justice on 9 August 2013. The proceedings were served on the Ombudsman on 15 August 2013.
On 26 August 2013, the Ombudsman applied "to transfer the case to Cardiff". The Adjudication Panel, which, with the Council, had been added to the claim as defendants, supported that application. Correspondence between the parties ensued. The Ombudsman said in a letter dated 31 October 2013 that he took the view that the case should be transferred to Cardiff Civil Justice Centre, and it would be up to the Administrative Court in Cardiff to decide where the case should be heard – but, the Ombudsman said, he had no objection to it being heard in North Wales. Howe and Co, for Mr Heesom, responded that same day saying that, in their view, the case should be heard in North Wales and the administration of the case should be transferred to the Administrative Court Office in Cardiff; and they had no objection to such a direction being made, if permission to appeal were granted. The following day, the Ombudsman responded, in substance agreeing with that suggestion. On 7 November 2013, Howe and Co wrote to the Administrative Court Office at the Royal Courts of Justice to that effect.
On 15 November 2013, Supperstone J granted permission to appeal, removed the Adjudication Panel and the Council as defendants, and made an order in the following terms:
"The hearing of the appeal to be transferred to Cardiff with a direction that the appeal be heard in North Wales."
The claim was duly transferred to the Administrative Court Office in Cardiff, where it was administered, a number of orders for directions being made there following transfer.
I heard the substantive appeal in Mold over four days in April 2014, and I delivered a reserved judgment on 15 May 2014 (now reported as [2014] EWHC 1504 (Admin), [2014] 4 All ER 269). I allowed the appeal in part, overturning three of the case tribunal's findings of breach; and, in respect of sanction, concluding that a period of disqualification was warranted, but the period imposed was manifestly excessive. I substituted a period of eighteen months. Following consideration of written representations in relation to costs, on 4 June 2014 I ordered the Ombudsman to pay Mr Heesom 35 per cent of his costs of the appeal.
A bill of costs for detailed assessment was prepared by Mr Heesom's costs lawyer/draftsman, John Robins of Robins Costs Consultants Ltd ("Robins"), and served on the Ombudsman on 4 September 2014. The full sum, including VAT, was £1,949,259.60, 35 per cent of which is £682,240.86. On 16 October, points of dispute were served on behalf of the Ombudsman, which indicated that the Ombudsman accepted a full bill of only £213,215.36, 35 per cent of which is £74,625.38. A response to those points of dispute was served on 12 November 2014. An interim payment of £100,000 on account of costs was made voluntarily.
Given the difference between the parties, they were unsurprisingly unable to agree the amount of costs that should be paid. On 29 December 2014, Robins on behalf of Mr Heesom sent the detailed bill to Cardiff Civil Justice Centre, for the costs proceedings to be issued there. Accompanying that bill were (i) an application for a further interim payment of £160,000, and (ii) an application to transfer the assessment proceedings to the Senior Courts' Costs Office ("the SCCO"). However, on 17 February 2015 these documents were returned unissued, with a letter explaining that "these should be filed at [SCCO]". Mr Robins duly filed them there.
On 8 April 2015, a one-day hearing of preliminary issues was listed in the SCCO before Master Haworth, for December 2015. One of the preliminary issues, as I understand it, is in respect of the proportionality of the bill as a whole.
On 6 May 2015, the Ombudsman filed an application for the transfer of the assessment proceedings from the SCCO to "the Cardiff District Registry"; or, alternatively, if the matter were retained by the SCCO, for an order that the assessment hearing be in Wales.
Service of that application on Mr Robins caused him to telephone Cardiff Civil Justice Centre for further details as to why it had been thought by the court that the assessment must be lodged in the SCCO; and he followed that up on 11 May 2015 with an email essentially to the same effect. The following day, 12 May 2015, he received a response from David Gardner, the Administrative Court Office Lawyer assigned to the Cardiff Administrative Court Office. The email read:
"I have been forwarded your email below by the Administrative Court Office Wales staff for advice.
The advice of the Administrative Court Office is that all applications for a detailed assessment of costs arising out of Administrative Court proceedings must be lodged in the [SCCO]. The reasoning behind this advice is as such:
1. CPR 47.4(1) requires all applications for a detailed assessment of costs to be lodged in 'the appropriate office'.
2. The meaning of 'appropriate office' is outlined in CPR PD 47 paragraph 4.
3. All five offices of the Administrative Court Office (that is to say Birmingham, Cardiff, Leeds, London and Manchester) are part of 'the Administrative Court Office' and as such Administrative Court claims are not covered by the directions in CPR PD 47, paragraphs 4.1(a) and (b). Thus the direction in CPR PD 47, paragraph 4.1(c) applies and the application for a detailed assessment must be lodged in the SCCO.
I hope this assists. Please feel free to contact the Administrative Court office or me if you have any further queries."
I shall return to the relevant provisions of CPR Part 47 shortly.
However, to complete the chronology, the applications to transfer and for a further payment were set down for hearing before Master Haworth on 13 May 2015. At that hearing, he found that (i) the assessment proceedings were correctly filed in the SCCO; (ii) there were no good grounds for transferring the assessment to Cardiff or for the SCCO to hear the assessment in Wales, whether in Cardiff or Mold; and (iii) in addition to the payment on account already made, an interim costs certificate in the sum of £100,000 should be issued. The Master gave permission to appeal in respect of the venue issues, but refused permission to appeal against the interim certificate.
In an Appellant's Notice dated 8 June 2015, but issued on 9 June, the Ombudsman pursued the appeal in respect of venue, and renewed his application for permission to appeal against the interim certificate. Those are the applications before me now.
Mr Vikram Sachdeva QC has appeared for the Ombudsman, and Mr Martin Westgate QC for Mr Heesom. At the outset, I thank them for their helpful contributions.
The Application for an Extension of Time
In the absence of a specific order of the court to the contrary, CPR rule 52.4(2)(b) requires an appellant's notice to be filed within 21 days of the decision of the lower court that the appellant wishes to appeal. The decisions of Master Haworth that the Ombudsman wishes to appeal were made on 13 May 2015. Any appellant's notice therefore had to be filed on or before Wednesday 3 June. As I have indicated, it was not in fact filed until Tuesday 9 June.
The reasons for that delay, such as are given, are set out in the notice itself. A Litigation Assistant from the Ombudsman's solicitors attended the Royal Courts of Justice on the afternoon of 3 June 2015, the last day for filing the appellant's notice. She did not have a happy time. She first attended the Administrative Court Office, where she had to wait for some time because the office was extremely busy. When she eventually spoke to a clerk,...
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