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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Davies & Anor v Secretary Of State For Environment, Transport & Regions & Anor [1999] EWHC Admin 575 (21st June, 1999) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/575.html Cite as: [1999] EWHC Admin 575 |
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1. This
is an application under s.288 of the Town and Country Planning Act 1990
challenging a decision to grant planning permission for a canal boat mooring
basin (a marina) at Napton Junction, Warwickshire, which is at the junction of
the Oxford and Grand Union canals. The decision was dated 7 October 1998 and
was made by an inspector appointed by the Secretary of State, allowing an
appeal against the local planning authority's refusal of planning permission.
The applicants are Mr & Mrs Davies, who are the proprietors of a
neighbouring marina and were objectors at the inquiry. The respondents are the
Secretary of State and the developers of the proposed marina, Black Prince
Holidays Limited.
2. The
inspector identified two main issues: (1) whether or not the proposal complied
with Policy R6 of the Warwickshire Structure Plan and (2) the effect of the
proposal on the character and appearance of the Cotswold Scarp Slopes Special
Landscape Area. The present application is concerned principally with an
aspect of the inspector' s handling of the first issue, though it will be
necessary to refer briefly to the inspector's conclusion on the second issue as
well.
3. On
the first main issue the inspector started by setting out the effect of the
relevant policy. She said:
4. She
went on to consider whether the proposal would be in conflict with the policy.
Having regard to the nature of the challenge, I think it necessary to set out a
large part of her consideration of that issue:
5. In
relation to the second main issue the inspector concluded that there would be
no conflict with policy, finding amongst other things that "these proposals
would conserve and restore the pastoral hedged character of the landscape in
accordance with the Landscape Guidelines" (para 21), that the marina would be
prominent but "its appearance would not be inconsistent with the adjoining
canal activities which are also a significant feature of the area, and a
considerable tourist attraction" (para 22), and that "the operation of the
marina is not by itself a noisy activity" (ibid.).
7. Mr
Davies says that he challenged the proposition that a marina with fewer than
200 berths could be commercially viable only if supported by land based
facilities or boat building. It was the first point he put to the inquiry when
he himself gave evidence. His evidence was that 200 berths might provide
maximum profitability but that smaller sites were still viable without
supporting land based activity. He gave to the inquiry two examples of
commercially viable marinas of 100 berths without supporting land based
activity. It is fair to say that there is no record of what precisely he told
the inquiry, but on the material before me I accept that he did draw the
inspector's attention to two examples. One of them was the applicants' own
100-berth marina, Napton Marina. The other was a proposed 100-berth marina at
Ventnor Farm, which was the subject of a planning application at the time of
the inquiry but for which planning permission has subsequently been granted.
8.
The applicants' submissions to this court are that (1) the inspector failed to
take into account their case that the minimum requirements for a commercially
viable marina were lower than those put forward by the developers, and/or (2)
she failed to give adequate reasons in relation to this issue.
9. In
relation to the first point, it is submitted that no reference is made to the
applicants' evidence or submissions on the first main issue. The inspector
refers in paragraph 8 of the decision letter to the council's position and
seems thereafter to deal with the debate between the council and the
developers. Paragraph 9 touches on the key issue ("For technical and
commercial reasons, your client requires a site which is a minimum of 5.5
hectares ....") but expresses it in terms that give no indication of the
existence of a dispute over it and do not even show whether she accepted the
validity of the developers' requirement. The only mention of any matters
raised by the applicants is in paragraph 25, which, it is submitted, looks like
an after-thought and supports the view that the applicants' case on the main
issue was not taken into account.
10. The
consequence of the inspector's error of approach is said to have been a failure
to apply her mind to whether sites of less than 5.5 hectares in size might have
been realistic alternatives to the subject site at Napton Junction. The
developers' investigation of potential sites had resulted in a list of 23 other
sites, 6 of which were smaller than 5.5 hectares. They included the Ventor Farm
site referred to by the applicant in his evidence to the inspector. That site,
for which planning permission was subsequently granted, might have been
regarded with favour by the inspector had she applied her mind to smaller
sites. More generally, although all 6 of the smaller sites were in countryside
locations, the inspector might have concluded that the siting of a marina in
one of those sites would have a lesser effect on the countryside than the
proposed development. (A submission that at least one of the other sites was,
unlike the subject site, outside a special landscape area was based on an
inference from the documents that I am unwilling to draw. I therefore leave
that point to one side, though it would not in any event affect my decision.)
The inspector might also have questioned the adequacy of investigation carried
out into potential smaller sites. Accordingly, the failure to take into
account the applicants' case as to the minimum requirements for a commercially
viable marina vitiated the decision in a way that should cause it to be
quashed; and, in the event of the court accepting the applicants' case on this
first point, it would be wrong for the court to withhold relief in the exercise
of its discretion
11. The
failure to give adequate reasons is a separate head of submission though
closely related to the first point. At the very least, it is contended, the
inspector should have shown that she appreciated the existence of an issue over
the minimum size requirement and should have expressed a conclusion on it. In
the course of argument before me different descriptions were given to the
issue, ranging from "significant" to "important" and "major". The essence of
the submission, however, was that this was an issue that should have been dealt
with in the decision letter. The failure to deal with it left the applicants
in the dark as to the inspector's approach to the issue and caused them
prejudice. This also feeds back into the first point, in that it is submitted
that in the absence of any reference to the point the court could and should
infer that it was not taken into account.
12. On
behalf of the Secretary of State it is accepted that the inspector had to take
into account the applicants' contention that smaller sites were realistic
contenders and in that context to consider the evidential dispute as to the
viability of smaller marinas. Although the inspector did not deal with them
expressly, it is submitted that the proper inference to be drawn from the
decision letter as a whole is that she did take those matters into account and
that she resolved the evidential dispute against the applicants and in favour
of the developers. That is to be inferred, in particular, from the discussion
of the first main issue at paragraphs 7 to 14. In those paragraphs the whole
thrust of the inspector's assessment was directed to whether, in terms of the
second limb of Policy R6, there were other means of realising the full
potential of the canal network. Her conclusion that there were no other such
means was based on her acceptance of the exercise carried out by the
developers. As part of that she accepted the developers' case that for
technical and commercial reasons a minimum size of 5.5 ha. was required. Her
reasons were stated in sufficient detail to enable the reader (i.e. the
informed parties to the appeal before her) to know what conclusion she had
reached on the issue.
13. It
is submitted that the court should in any event exercise its discretion against
quashing the decision, on the ground that there is no realistic possibility of
the inspector having reached a different conclusion even if smaller sites had
been commercially viable. All of the smaller sites were in open countryside
and therefore had no advantage over the subject site in terms of Policy R6.
There was no additional objection to the subject site based on its location in
a special landscape area, since the inspector had found the site to be
compatible with the relevant policies in that respect. Moreover only two of
the other sites were located at a junction or long pound as required by the
second limb of Policy R6, and both of those failed to meet the requisite
physical criteria even apart from the question of size. No other possible site
beyond those identified by the developers has been suggested by the applicants.
14. The
Secretary of State's submissions are adopted by the second respondents, the
developers. They also take an alternative point on the effect of Policy R6.
The submission is that, so far as the first limb of the policy is concerned, no
site "related to existing settlements" has been ruled out on grounds of size.
The developers, in their evidence to the inquiry, did not identify a potential
smaller site related to an existing settlement and none has been suggested by
the applicants. In those circumstances, and given the absence of objection on
landscape grounds to the subject site, there is simply no room for comparison
between the subject site and other smaller sites. One is concerned only with
the second limb of the policy. In that limb the reference to "other means of
realising the full potential of the canal network" is a general reference to
other
means
and is not a reference to other
sites.
It is not intended to involve a comparison between different sites each of
which is in open countryside and related to a canal junction or long pound.
Accordingly the issue as to size was irrelevant to the result and the inspector
was not required to reach a conclusion on it.
15. I
do not think it necessary to rehearse at any length the legal principles
relevant to my assessment of the case. I remind myself of what is said in
Save
Britain's Heritage v. Number 1 Poultry Limited
[1991] 1 WLR 153 about the need to construe decision letters as a whole and
with a measure of benevolence, as to the requirement that the reasons should be
proper, intelligible and adequate, and as to the circumstances in which a
deficiency of reasons may cause substantial prejudice (as e.g. where they are
so inadequately or obscurely expressed as to raise a substantial doubt whether
the decision was taken within the powers of the Act).
16. All
parties have drawn my attention to
Bolton
Metropolitan DC v. Secretary of State for the Environment
(1995)
71 P&CR 309 at 313-315, where Lord Lloyd states inter alia:
17. To
deal with a suggestion that seemed on occasion to surface in the applicants'
submissions, I do not accept that the second sentence entails that reference
must be made to everything that is significant or non-peripheral. That would
be to place an unjustified gloss on the operative statement of principle in the
first sentence. In this connection I should also mention
Secretary
of State for the Environment v. MJT Securities
(1997) 75 P&CR 188, to which my attention has also been drawn. Suffice it
to say that in my view nothing in that case purports to qualify the
Bolton
principles or to apply them in a way that has any particular bearing upon the
present case.
18. I
also note what Lord Lloyd said in
Bolton
(at
the top of page 315) to the effect that, since there is no obligation to refer
to every material consideration, but only the main issues in dispute, the scope
for drawing any inference (i.e. that the decision-maker lacked a rational
reason for the decision or has not fully understood the materiality of a matter
to the decision) will necessarily be limited to the main issues, and then only
when all other known facts and circumstances appear to point overwhelmingly to
a different decision.
19. After
careful consideration of the decision letter I reject the applicants'
submission that the inspector failed to take into account their case as to the
minimum size of a commercially viable marina. I prefer the analysis of the
decision letter that is put forward on behalf of the Secretary of State.
20. In
considering the first main issue identified in the decision letter, the
inspector focused on the question whether there would be other means of
realising the full potential of the canal network. That question was a central
one, since the subject site did not fall within the first limb of Policy R6
(not being related to an existing settlement but being in open countryside) but
did otherwise fall within the second limb of the policy (being related to a
canal junction). In order to answer it, she examined the developers'
assessment of other potential sites. That assessment included smaller sites
as well as those at or above the minimum size that the developers said was
required. It analysed the sites by reference to a number of criteria,
including physical criteria and other factors as well as size. In my view the
inspector's examination of that assessment necessarily included consideration
of the appropriateness of the criteria themselves. If she had not considered
the criteria to be appropriate, she could not have expressed herself as she did
in paragraph 14, where she referred to the developers "systematic and diligent
search for a suitable site" and recorded that she was satisfied that there were
no other means of realising the full potential of the canal network. She must
in my view have accepted the validity of the requirement of a 5.5 hectare site
and of the technical and commercial reasons put forward in support (as referred
to at the beginning of paragraph 9). Although there is no express acceptance
of those matters, the proper inference is that she did accept them. It follows
that she must have rejected the applicants' case that a smaller marina would
have been commercially viable. That was a matter of judgment for her and her
decision on the issue is unassailable.
21. Thus
the contention that the inspector did not even have the applicants' case in
mind is in my view unsustainable. In the light of the matters to which I have
referred, a failure to take it into account cannot be inferred from the failure
to make express reference to it when considering the main issue, whether that
point is looked at alone or together with other points made by reference to the
structure of the decision letter (including the fact that the only paragraph
referring specifically to matters raised by the applicants is paragraph 25).
22. Given
that the inspector proceeded by looking at potential alternative sites as a
means of answering the question whether there would be other means of realising
the full potential of the canal network, there seems to me to be an air of
unreality about the developers' alternative submission that, within the
framework of the second limb of Policy R6, there was no room for comparison
with other sites and therefore no need to express a conclusion on this issue;
and I would not uphold the inspector's decision on this alternative basis.
23. As
to the adequacy of the inspector's reasons, in my view it was not necessary for
the inspector to deal in terms with the evidential dispute as to the commercial
viability of smaller marinas. It was a material consideration, having been
raised in Mr Davies's evidence - though not in any great detail, as it would
seem from the information available to this court. I accept that an issue may
be important even though dealt with briefly. I also acknowledge that Mr Davies
had expert knowledge about marinas that the council may have lacked. But
looking at it in the context of the case as a whole, I do not think that Mr
Davies's evidence elevated this into one of the principal controversial issues
calling for separate treatment. In any event, on my preferred construction of
the decision letter as set out above, the inspector's reasons were sufficient
to enable the applicants to know what conclusion the inspector had reached on
the issue. I do not think that there was any deficiency of reasons, let alone
a deficiency causing substantial prejudice to the applicants.
24. I
understand that the applicants, as owners of a competing marina who
participated actively in the inquiry, may feel aggrieved that the inspector did
not deal in terms with an issue to which they themselves attached considerable
importance. My task, however, is to decide whether the inspector's decision
complied with the minimum standards imposed by the law; and for the reasons I
have given, I conclude that it did.
25. In
the circumstances I can deal briefly with the issue of discretion, which does
not strictly arise on the findings I have made. If I had concluded that the
inspector failed to take into account the applicants' case as to the minimum
size for a commercially viable marina, I would still not have been minded to
quash the decision. I do not consider there to have been a realistic
possibility of the inspector reaching a different decision as to the grant of
permission even if smaller sites had been commercially viable. I accept the
submissions put forward on behalf of the Secretary of State. I also note the
inspector's observation, at paragraph 10 of the decision letter, that each of
the four other potential sites satisfying the developers' main physical
criteria lies in the open countryside "and
therefore
none of them has an advantage over the appeal site" (emphasis added). I do not
see why the same reasoning should not have applied to smaller sites lying in
the open countryside. The speculative suggestion that one of the identified
smaller sites might have had appreciably less effect on the open countryside,
or that another smaller site might have been found if further investigation had
been carried out, does not seem to me to be supported by the evidence or to
have sufficient weight to justify the view that a different conclusion might
have been reached. There is a high threshold before the court will exercise
its discretion not to quash a decision that it has found to be unlawful, but
the facts of the present case would in my view have reached that threshold.
27. MR
JUSTICE RICHARDS: I am handing down the judgment in this case. For the reasons
given in that judgment the challenge to the grant of planning permission by an
inspector appointed by the Secretary of State is dismissed.
28. MR
MOULD: My Lord, that being so, I apply for the application to be dismissed with
the first Respondent's costs. In accordance with the practice set out of Part
4 of the Procedure Rules, I invite your Lordship to assess my clients' costs in
the event that he is minded to make that order. In accordance with the
Practice Direction, a Schedule of those costs, which I invite your Lordship to
include within that assessment, has been served upon the court and indeed upon
the other parties.
30. MR
MOULD: No, there is an updated version which is dated the 17th. That
essentially has been updated to cover the costs of today's hearing, as I
understand it. It has been dealt with in accordance with the requirements
setting out the fee earners, the grades and the various matters in relation to
which costs had been occurred. The grand total is set out on the second page
as £5,447.72. There is a declaration made by the Treasury Solicitor which
is made by reference to that which could have been recoverable on detailed
assessment. That is the amount of the money that I seek.
31. MR
TREVELYAN THOMAS: My Lord, I too have an application for costs on behalf of the
second Respondent. We too have filed two statements with the court and on the
Applicant. The first relates to the costs incurred up to the date of the
hearing last week, and the second deals with the additional attendance to come
here today. Does your Lordship have that?
32. MR
TREVELYAN THOMAS: Again, they are set out in what I hope is the appropriate
form. Mr McCracken has been good enough to indicate that he opposes our costs
(that is the second Respondent) on the matter of principle. Can I take you to
the
Bolton
case? Can I invite you to come to the third page, page 1178, just by, I think,
letter F:
34. MR
TREVELYAN THOMAS: That is right. I draw your Lordship's attention to number
(3), the first sentence:
35. I
make four separate points. Firstly, we filed the evidence in response to the
application which plainly, in my submission, was important material which was
needed to deal with the Applicants' appeal, and, in my submission, we should
plainly be entitled to those costs. If your Lordship would come to the first
set of costs, the final page apportioned costs between the affidavits and the
hearing. Your Lordship will see the figure of £1,431 for the affidavit
and £6,396 for the balance.
37. MR
JUSTICE RICHARDS: If you are referring to your Statement of Costs, the first
document, one for the hearing for 10th June is two pages and the second one,
the addendum, is two pages.
38. MR
TREVELYAN THOMAS: I did not realise that. Can I, please, pass it to you. It
was something that I specifically asked to be done and it looks as though it
was only supplied to me.
39. MR
McCRACKEN: I wonder if I can have a copy as well, because I think I am quite
interested in this.
41. MR
JUSTICE RICHARDS: Perhaps you had better wait until Mr McCracken has had a
chance to study it.
42. MR
TREVELYAN THOMAS: In any event, in my submission the second Respondent should
be entitled to that element of his costs. Beyond that, in my submission, it
was right in the circumstances of this case that he was represented before you.
The developer had filed the evidence upon which the challenge was successfully
defended. One does not know what might have turned upon the details of the
affidavit which Mr Parker sworn. There was, in my submission, a case which
depended in part upon what was said or was not said or what material was or
was not before the Planning Inquiry, a matter which the second Respondent was
appropriate to deal with.
43. Thirdly,
my Lord, in my submission, the developer does have an interest to be protected
separate to that of the first Respondent, because he, of course, had secured a
valuable planning permission which he was anxious to protect.
44. Fourthly,
although we supported the Secretary of State and did not repeat a word of what
he said, separate submissions were made on behalf of the second Respondent.
45. MR
JUSTICE RICHARDS: It may not be your strongest point, since they were
submissions I rejected.
47. MR
McCRACKEN: My Lord, may I first of all acknowledge, of course, that my clients
are bound to pay in principle the costs of the first Respondent. May I deal,
first of all with the principle of whether or not my clients should have to pay
any of the costs of the second Respondent and then deal with the particulars of
the first Respondent's application for costs.
48. If
one looks at what the House of Lords said in
Bolton,
the principle is very clear. Lord Lloyd of Berwick says, on the page preceding
that to which my learned friend referred your Lordship -- It is page 51 in the
Planning Law Reports which is the edition that was before the court in the main
hearing. It is in the second paragraph of Lord Lloyd's speech, where he says:
49. So
my submission will be that the burden falls clearly and squarely upon the
second Respondent. One of the reasons for that is set out in the immediately
preceding sentence, where Lord Lloyd said:
50. That,
of course, accords with a general principle, which is of some public concern at
the moment, that the cost of litigation should not be unnecessarily high
because the rise in costs by unnecessary duplication or triplication by lawyers
each performing the same task.
52. My
submission would be that in this instance my learned friend is unable to show
anymore than he is the developer, which is, as Lord Lloyd explains, "not of
itself sufficient to justify a second set of costs".
54. MR
McCRACKEN: The evidence is something that could have been presented, and indeed
would no doubt have been presented, by the Treasury Solicitor had the second
Respondent not filed the second Respondent's affidavit.
55. MR
JUSTICE RICHARDS: Then the costs would presumably have been higher on the part
of the Secretary of State?
56. MR
McCRACKEN: No, my Lord, they would not, with the greatest respect, because one
of the interesting things about the Secretary of State's costs is that the
Secretary of State has -- and if your Lordship turns to the first Respondent's
Statement of Costs, the first Respondent claims in respect of counsel fees
totalling about £1,750. I do not take issue with those. Those relate to
fee for hearing, fee for skeleton argument and fee for advice, so that
£1,750. I accept that that is reasonable. That, of course, involved Mr
Mould analysing the documents, analysing the issues and preparing the
submissions. The question then arises as to the extent to which any other
lawyer needed to perform the same task.
57. If
one looks on the first page of the first Respondent's Statement of Costs, one
sees a really most interesting feature of the case. Looking at the first item,
at attendances on client: 6.1 hours at £120, and work done on a document:
1.9 hours at £120, the Treasury Solicitor spent 18 hours working on the
documentation and talking about it with the Planning Inspector or whoever
represented the Planning Inspector. I have two points to make about that.
First of all, it is inconceivable in the 18 hours' deliberations that the
Treasury Solicitor spent on the documentation and talking to the Planning
Inspectorate that the Treasury Solicitor would not have been able very simply
and at minimal extra costs to have sworn an affidavit setting out the necessary
documentation. So I reject the submission, or at least I submit that the
submission of my learned friend, Mr Trevelyan Thomas, that he is entitled to
at least the costs of the affidavits is misconceived because that would
involve, at the very least, duplication between the Treasury Solicitor and his
Clerk.
58. MR
JUSTICE RICHARDS: And you say that he did not need to be at the hearing, that
there was not likely to be a separate issue and presumably you also say, that,
insofar as he did advance separate submissions, they did not succeed.
59. MR
McCRACKEN: My Lord, that is right. For the benefit of your Lordship's note I
would refer to the Civil Procedure Rules, 44.3(4)(b) which specifically
indicates that the court must have regard to that factor. So I submit that it
would be wrong in principle for the second Respondent to have any costs in this
case. So far as the particulars of the Treasury Solicitor's costs are
concerned, I have already indicated that I accept that Mr Mould's fees are
reasonable. While I think it must have been reasonable for the Treasury
Solicitor, to a limited extent, to seek cast to her mind around the
documentation and the issues, there is in the claim that is put forward by the
Treasury Solicitor an element of duplication which the court should be astute
to avoid.
60. MR
JUSTICE RICHARDS: It is duplication that arises if I make an award in relation
to both Respondents.
61. MR
McCRACKEN: My Lord, it is triplication if your Lordship makes an award in
favour of the second Respondent, because ----
62. MR
JUSTICE RICHARDS: How it is duplication, if it is simply an award in favour of
the Secretary of State?
63. MR
McCRACKEN: I accept that the first Respondent must, of course, have some time
to look at the documents. I do not dispute that for the moment, but my point,
and can I put it simply as this: it is wrong in principle in a case such as
this, which turns fundamentally just on the examination of documents, that
solicitors should be paid about twice as much as counsel who argues the case in
court. That in a sense is what brings the law into disrepute, the duplication
involved in that.
64. MR
JUSTICE RICHARDS: I wonder whether that is right, if the solicitors have done a
lot of work that enables counsel to operate quickly and efficiently and on
lower fees than otherwise would have been the case, and there has been no
duplication and nothing unreasonable. If one looks at the counsel's fees in
the case, I think you will be in some difficulty in persuading me that counsel
was not assisted in relation to the Secretary of State's case by the work done
by the solicitors.
65. MR
McCRACKEN: My Lord, may I say right at the outset, I am not seeking to strike
out all of the solicitor's costs. I would not for a moment seek to do that,
and I do not suggest that the Treasury Solicitor is not much more helpful than
other solicitors in cases of this sort. It is right to recognise that this
jurisdiction is one which is fundamentally based upon the examination according
to some relatively straightforward principles of law of documentation, and in
those circumstances one does not expect that solicitors will have to spend
quite as much time as is indicated here.
66. Perhaps,
I can make a point in a slightly different way as well, a related point, my
Lord. If and insofar as it was necessary to take 18 hours to work out, as it
were, the documentary proof that the Inspector had had regard to the evidence
of my clients, the dispute about whether or not the commercial requirement was
for 5.5 hectares -- if it really took 18 hours, then there was something
somewhat amiss. I am not suggesting something jurisdictionally amiss with the
way the Inspector approached it. I emphasise that I accept your Lordship's
decision on that, but there was something about the organisation of the
documentation that the world at large, in my submission, is entitled to expect
should have been and was not there.
67. Therefore,
could I indicate that I readily accept that my learned friend for the first
Respondent is entitled to, at the very, least £3,000 of costs. In my
submission, the second Respondent is not entitled to any costs. If your
Lordship felt that the full entirety of the Treasury Solicitor's cost were
recoverable, I suppose the commission of those fees for the affidavit of the
second Respondent might, in those circumstances, be legitimately recoverable.
68. MR
JUSTICE RICHARDS: Looking at the overall costs figures, your overall costs were
some £14,000, the second Respondent's overall costs were some £18,500
and the Treasury Solicitor's overall costs were £5,500, including, in each
case, counsel's fees.
69. MR
McCRACKEN: My Lord, yes, but it cannot be right that the court should in any
sense endorse, as a measure of those costs which are reasonable, that the
unsuccessful litigant should have to pay to the successful litigant the market
rate in a particular area of practice. That cannot be right and it would be
plainly, in my submission, absurd to suggest that any counsel involved in this
case, for example -- perhaps, I can stand back a moment. If I may, I would
prefer to deal with the principle of the second Respondent's costs rather than
the detail of it, because if the question does not arise, the points that I
would be wishing to make need not be made and I am wearing your Lordship
unnecessarily.
70.
Therefore, I can do no more than submit that it is not, in interest of the
reputation of the legal service of the country, that fancy market rates should
be reflected in the Orders for costs that unsuccessful litigants have to pay.
71. Unless
I can be of any further assistance, those are my submissions on the principle
in relation to the second Respondent and detail in relation to the first
Respondent.
73. MR
TREVELYAN THOMAS: In respect of our affidavits you will remember we were
criticised for putting our affidavit in late. One of the reasons, I can tell
your Lordship, why it was late was because we were waiting to see if the first
Respondent did file any evidence.
74. MR
JUSTICE RICHARDS: The Applicant will pay the costs of the first Respondent,
the Secretary of State. There will be no Order as regards the costs of the
second Respondent. The second Respondent would not normally be entitled to
costs in a matter of this kind and the particular circumstances of the present
case do not, in my judgment, justify an award of a second set of costs.
75. I
acknowledge that the second Respondent did some work on the evidence, though I
am not satisfied that it would have increased the costs of the Secretary of
State by a substantial amount if that work had been done instead by the
Secretary of State. In any event, however, I take into account the fact that
attendance by or on behalf of the second Respondent was not, in my view,
necessary at the hearing itself. There was not likely to be a separate issue.
Insofar as separate submissions were made on behalf of the second Respondent,
they did not find favour with the court and I have regard to the fact that the
second Respondent lost on that issue in deciding on what the appropriate
overall Order is. As I have indicated, the appropriate Order is that there
should be no Order in relation to the costs of the second Respondent.
76. As
to the quantum of the Secretary of State's costs, I am not satisfied that any
unnecessary or unreasonable costs were incurred in the preparation of the case.
In my judgment, it is necessary to look at the costs incurred by the solicitors
and costs incurred by way of counsel's fees in the round in order assess the
reasonableness of the costs incurred by a particular party. I note that the
overall costs of the Secretary of State are substantially lower than the
overall costs of either of the other two parties, and I do not think that there
is any basis upon which I should reduce the claim that is made by the Secretary
of State.
77. I
will, therefore, assess costs in the sum of £5,477.72, being the total
amount in the first Respondent's Schedule of Costs.