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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Campaign to Protect Rural England & Anor v Secretary of State for Communities and Local Government & Ors [2019] EWCA Civ 1230 (15 June 2019) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1230.html Cite as: [2020] JPL 138, [2020] 1 WLR 352, [2019] WLR(D) 419, [2019] EWCA Civ 1230, [2020] WLR 352 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
PLANNING COURT
HHJ Evans-Gordon
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE HAMBLEN
and
LORD JUSTICE COULSON
____________________
CAMPAIGN TO PROTECT RURAL ENGLAND - KENT BRANCH |
Appellant |
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- and - |
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SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT MAIDSTONE BOROUGH COUNCIL |
1st Respondent 2nd Respondent |
|
- and - ROXHILL DEVELOPMENTS LIMTED |
Interested Party |
____________________
Ms Jacqueline Lean (instructed by the Government Legal Department) for the
1st Respondent
The 2nd Respondent and the Interested Party did not appear and were not represented
Hearing Date: 27th June 2019
____________________
Crown Copyright ©
Lord Justice Coulson :
1 Introduction
2 The Factual Background
3 Issue 1: A Claimant's Liability For Multiple Costs
3.2 The Principal Authorities
" The House will be astute to ensure that unnecessary costs are not incurred. Where there is multiple representation, the leading party will not normally be required to pay more than one set of costs, unless the recovery of further costs is justified in the circumstances of the particular case…
What then is the proper approach? As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule. But the following propositions may be supported.
(1) The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award of costs by apportionment, whether by agreement with other parties, or by further order of the court. In so far as the Court of Appeal in the Wychavon District Council case may have encouraged or sanctioned such a course, I would respectfully disagree.
(2) The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of costs in every case.
(3) A second set of costs is more likely to be awarded at first instance, than in the Court of Appeal or House of Lords, by which time the issues should have crystallised, and the extent to which there are indeed separate interests should have been clarified.
(4) An award of a third set of costs will rarely be justified, even if there are in theory three or more separate interests. On the facts of the present case the Secretary of State is clearly entitled to the whole of his costs. The only question is whether the Manchester Ship Canal Co. should also receive their costs. In my opinion they should. I accept that the issues were all capable of being covered by counsel for the Secretary of State. But the case has a number of special features. First, the case raised difficult questions of principle arising out of the change of Government policy towards out-of-town shopping centres between the date of application and the final decision. The Secretary of State was concerned not only to support his decision, but also to explain and defend his wider policy. If the appeal had gone the other way, the case would in all likelihood have gone back to him for re-determination de novo."[2]
"Acknowledgment of service
54.8
(1) Any person served with the claim form who wishes to take part in the judicial review must file an acknowledgment of service in the relevant practice form in accordance with the following provisions of this rule.
(2) Any acknowledgment of service must be –
(a) filed not more than 21 days after service of the claim form; and
(b) served on –
(i) the claimant; and
(ii) subject to any direction under rule 54.7(b), any other person named in the claim form,
as soon as practicable and, in any event, not later than 7 days after it is filed.
(3) The time limits under this rule may not be extended by agreement between the parties.
(4) The acknowledgment of service –
(a) must –
(i) where the person filing it intends to contest the claim, set out a summary of his grounds for doing so; and
(ia) where the person filing it intends to contest the application for permission on the basis that it is highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred, set out a summary of the grounds for doing so; and
(ii) state the name and address of any person the person filing it considers to be an interested party; and
(b) may include or be accompanied by an application for directions.
(5) Rule 10.3(2) does not apply…
Failure to file acknowledgment of service
54.9
(1) Where a person served with the claim form has failed to file an acknowledgment of service in accordance with rule 54.8, he –
(a) may not take part in a hearing to decide whether permission should be given unless the court allows him to do so; but
(b) provided he complies with rule 54.14 or any other direction of the court regarding the filing and service of –
(i) detailed grounds for contesting the claim or supporting it on additional grounds; and
(ii) any written evidence,
may take part in the hearing of the judicial review.
(2) Where that person takes part in the hearing of the judicial review, the court may take his failure to file an acknowledgment of service into account when deciding what order to make about costs.
(3) Rule 8.4 does not apply…"
"Accordingly, there is now, by the new rules, a positive requirement that not only should there be an acknowledgement of service filed, but that that acknowledgement of service should include a summary of the grounds for contesting the claim, and, as Mr Corner correctly submits, that will almost inevitably involve some work on the part of the defendant or the interested party in deciding what should be put in and how the desire to contest should be indicated."
"14 The purpose of subparagraph (2) would appear to be that where points which showed that the claim lacked merit were not made at the permission stage but were raised on the hearing, the court might take the view that it was not fair that the applicant should pay the extra costs which could have been avoided if only the points had been made at the earlier stage. But that, of course, only underlines the point made by Mr Corner, that if that is one of the purposes behind the new provisions, and the requirement is there, then why should the successful party, in this case the defendant, have to bear the costs of putting forward his objections to the claim if those objections then serve to defeat the claim? Why should he be required by the rules to incur costs which he can never recover, even if he is successful as a result of what he has done? That, submits Mr Corner, is manifestly unfair, and I agree with him… It seems to me that, in principle, he must be right, and that if a defendant incurs costs in submitting an acknowledgement of service, as required by the rules, then he ought to be able, if he succeeds, to recover his costs of so doing."
47 The fourth issue raises a matter of considerable public importance, namely as to the guidance to be given by this Court concerning the award of costs at the permission stage of claims for judicial review. The issue affects not only claimants and defendants, but also interested parties and the court itself in the access that it provides to justice, having regard to the overriding objective of dealing with cases justly in CPR Part 1.1 and good public administration. More precisely, on the facts of this case, the issue is whether Moses J. was entitled in the exercise of his discretion to order Mount Cook to pay the Council's costs of filing an acknowledgment of service and of successfully resisting its oral application.
48 The issue arises under the relatively new procedure for the grant of permission for claiming judicial review introduced by CPR Part 54 on 2nd October 2000, supplemented by a Judicial Review Practice Direction...
49 The new procedure involves the proposed defendant and any interested party right from the start and is generally dealt with in the first instance as a paper application. By CPR 54.7, the claimant must serve a claim form on the defendant and any interested party within seven days of issue. By CPR 54.8 any such person "who wishes to take part in the judicial review" is required to file an acknowledgment of service". If he files an acknowledgment of service and intends, in taking part in the judicial review, to contest the claim, CPR 54.8(4) requires him to plead it in the acknowledgment of service and to summarise his grounds for doing so.
50 However, CPR 54 says nothing direct about the costs of filing such a document, nor indeed about the costs of and incurred by a defendant who chooses, in accordance with his entitlement under paragraph 8.5 of the Practice Direction, to attend and argue his case at an oral renewal hearing. There is an indirect reference to costs in CPR 54.9. By 54.9(1), a failure to comply with the requirements as to acknowledgment of service by a party who subsequently seeks to take part in a permission hearing may, but will not necessarily, result in the court not allowing him to do so. But if he is allowed to take part, by 54.9(2), the court may take his failure into account "when deciding what order to make about costs", a provision that may have as one of its premises that a successful defendant at the permission stage who has complied with CPR 54.8 should normally be entitled to his costs of filing the acknowledgment of service. Another premise may be that a defendant who has not complied with CPR 54.8 and who has not attended a permission hearing, but who later succeeds on the substantive hearing of the claim, should have some or all of his costs disallowed because of his failure to comply with rule and thus to put his case to the court at the permission stage.
51 However, regardless of the question of costs, there is now a positive obligation on a defendant or other interested party served with the claim form to acknowledge service and to consider in doing so: 1) whether to contest the claim, and, if so, on what grounds and at what stage; and 2) if he decides to contest it, to summarise his case at the permission stage.."
74 But where does that general rule leave Leach and the costs of filing an acknowledgment of service upon which a defendant has relied and followed through by successfully resisting the claim at the permission stage? As I have said, as a result of the note in the White Book, the ruling of Collins J. in Leach appears to be regarded as an authority for the proposition that a defendant who successfully resists the grant of permission should, as a matter of principle, be entitled to his costs, not only of filing an acknowledgment of service as required by CPR 54.8, but also of his preparation for and attendance at any permission hearing. In fact, as Mr. Steel observed, there was no permission hearing in that case. The only hearing was of an application by an unopposed defendant for an order that the claimant should pay his costs of filing of the acknowledgment of service. It was not, therefore, a case that would have engaged paragraph 8.6 of the Practice Direction since, when read with paragraph 8.5, the guidance that a defendant or other interested party attending an oral permission hearing should not generally have his costs clearly applies only to the costs of and occasioned by his attendance at such a hearing. Given that distinction and the absence of any such constraint on the narrower issue before him, there was, with respect, good sense in Collins J's. recourse to the obligation in CPR 54.8 to file an acknowledgment as a reason for requiring a claimant to pay the costs of that initial procedural step. Different considerations, which he did not have to consider, would obviously apply to the costs of a permission hearing at which a defendant who intends "to take part in the judicial review" chooses voluntarily to attend and orally to argue his case…
76 Accordingly, I would hold the following to be the proper approach to the award of costs against an unsuccessful claimant, and to the relationship of the obligation in CPR 54.8 on a defendant "who wishes to take part in the judicial review" to file an acknowledgment of service with the general rule in paragraph 8.6 of the Practice Direction that a successful defendant at an oral permission hearing should not generally be awarded costs against the claimant:
1) The effect of Leach, certainly in a case to which the Pre-Action Protocol applies and where a defendant or other interested party has complied with it, is that a successful defendant or other party at the permission stage who has filed an acknowledgment of service pursuant to CPR 54.8 should generally recover the costs of doing so from the claimant, whether or not he attends any permission hearing…"
"80 Finally, Luton BC appeals in relation to the costs order made against it in favour of the interested parties, in respect of their costs of preparing their acknowledgement of service. In my judgment, the appeal against the costs order is wholly unsustainable.
81 Luton BC's claim qualified as an Aarhus Convention claim for the purposes of the special costs regime for such claims set out in the Civil Procedure Rules (CPR Part 45.43 and the associated Practice Direction). Luton BC and CBC made an agreement that any costs order to be made as between them should be for a nil amount. However, the interested parties were not a party to that agreement and were in no way bound by it. The judge was fully entitled to award the interested parties their costs of preparing the acknowledgement of service, in line with ordinary principles as identified by him. The costs awarded were at a level well below the maximum costs award permissible in respect of an Aarhus Convention claim under the Rules.
3.3 The Position in Judicial Review
3.4 The Position in Statutory Review
4.1 The claim form must be served on the appropriate Minister or government department and, where different, on the person indicated in the following table:
If the application is brought under – 1. section 287 of the Town and Country Planning Act 1990; or 2. section 113 of the Planning and Compulsory Purchase Act 2004. |
The authority who prepared the relevant document. |
If the application relates to any decision or order, or any action on the part of a Minister of the Crown to which – 1. section 288 of the Town and Country Planning Act 1990 applies; or 2. section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 applies. |
a. The authority directly concerned with the decision, order or action; or b. if that authority is the claimant, on every person who would, if he were aggrieved by the decision, order, relevant document or action, be entitled to apply to the High Court under section 288 of the Town and Country Planning Act 1990 or section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 as the case may be. |
If the application relates to any decision on the part of a Minister of the Crown to which section 22 of the Planning (Hazardous Substances) Act 1990 applies. | a. The hazardous substance authority who made the decision on the application to which the proceedings relate; or b. if that authority is the claimant, on every person who would, if he were aggrieved by the decision, be entitled to apply to the High Court under section 22 of the Planning (Hazardous Substances) Act 1990. |
Acknowledgment of service
5.1 Rules 8.3(1) and 8.3(2) do not apply to a claim for planning statutory review.
5.2 Any person served with the claim form who wishes to take part in the planning statutory review must file an acknowledgment of service in the relevant practice form in accordance with paragraphs 5.3 to 5.6.
5.3 Any acknowledgment of service must be –
(a) filed not more than 21 days after service of the claim form; and
(b) served on –
(i) the claimant; and
(ii) any other person named in the claim form, as soon as practicable and, in any event, not later than 7 days after it is filed.
5.4 The time limits under paragraph 5.3 may not be extended by agreement between the parties.
5.5 The acknowledgment of service –
(a) must –
(i) where the person filing it intends to contest the claim, set out a summary of his grounds for doing so;
(ii) state the name and address of any person the person filing it considers should be served in accordance with paragraph 4.1; and
(iii) comply with rule 10.5; and
(b) may include or be accompanied by an application for directions.
5.6 Rule 10.3(2) does not apply.
5.7 The provisions of Part 15 (defence and reply) do not apply."
3.5 Summary
a) When permission to seek review is refused, a claimant may be liable to more than one defendant and/or interested party for their costs of preparing and filing their AoS and summary grounds.
b) It is not necessary for the additional defendant(s) and/or interested party to show "exceptional" or "special" circumstances in order, in principle, to recover those costs.
c) However, to be recoverable, those costs must be reasonable and proportionate. So, for example, if there is an obvious lead defendant and the court was not assisted by the AoS or summary grounds of an additional defendant(s) and/or interested party, then the costs of that additional defendant(s) and/or interested party may not be proportionate and so will not be recoverable. That is an assessment which is case-specific and not susceptible to more general rules.
5 Issue 3: Quantum And The Aarhus Cap
"The court reaffirmed the principles established in its judgment in Commission of the European Communities v Ireland (Case C-427/07, BAILII: [2009] EUECJ C-427/07) [2010] Env LR 123; [2009] ECR I-6277, noting in particular that Aarhus Convention does not affect the powers of national courts to award "reasonable costs", and that the costs in question are "all the costs arising from participation in the judicial proceedings" (paras 25-27). In response to the questions raised by the Supreme Court, it began by affirming the duty of member states to ensure that the directive is "fully effective", while retaining "a broad discretion as to the choice of methods" (para 37). The national court, in turn, when ruling on issues of costs, must satisfy itself that that requirement has been complied with, taking into account "both the interest of the person wishing to defend his rights and the public interest in the protection of the environment" (para 35).
5.3 CPR Part 45 and Interested Parties
5.4 Analysis
Lord Justice Hamblen:
Lord Justice David Richards:
Note 1 This is a reference to the Aarhus Convention of 1998 which provided, amongst many other things, that environmental litigation should not be “prohibitively expensive”. In the UK this eventually found its way into the CPR in 2017, and operates by way of a cap on the total costs liability of claimants to other parties. In the present case, the cap was £10,000. [Back] Note 2 In the course of his speech inBolton, Lord Lloyd referred to Wychavon District Council v Secretary of State for the Environment (1994) 69 P&CR 394 in which the judge at first instance had awarded the developer the whole of his costs, whilst the Secretary of State had recovered nothing. Although the Court of Appeal plainly considered that to have been the wrong way round, there was little they could do because the developer was not a party to the appeal.
[Back] Note 3 I note that, in support of her subsequent written submissions, Ms Lean referred to various documents that surrounded the introduction of Practice Direction 8C, including DCLG’s original proposals, papers provided to the CPR, and even judicial comments on the proposals. In my view, it is only in a very rare case, where there was some particular dispute about the interpretation of a particular Rule, that such material could possibly be relevant or even admissible. It is becoming much too common for parties to deluge the court with the written materials that surrounded the introduction of a new part of the CPR. That is not good practice. The Rules say what they say and will be interpreted accordingly. No assistance can usually be gained from this sort of extraneous material. I make no further reference to it in this Judgment. [Back] Note 4 Unsuccessful claimants in personal injury litigation have another form of protection, by way of Qualified One Way Costs Shifting under CPR 44.13-44.17. [Back]