- Supreme Court
- 30 July 2021
- Lord Reed (P), Lord Hodge (DP), Lord Lloyd-Jones, Lord Leggatt and Lord Burrows
- [2021] UKSC 36
- [2021] PLSCS 139
Town and country planning – Statutory review – Costs – Second respondent local authority adopting local plan following finding of first respondent secretary of state that plan was sound – Appellant seeking statutory review – Court refusing permission and awarding costs against appellant in favour of respondents and interested party – Court of Appeal dismissing appeal – Appellant appealing – Whether adverse costs order appropriate in favour of multiple parties at permission stage – Appeal dismissed
The second respondent local authority adopted the Maidstone Borough Local Plan, following a finding by an inspector appointed by the first respondent secretary of state that the plan was “sound” within section 20(5) of the Planning and Compulsory Purchase Act 2004. The plan included a particular policy which allocated a large site at Woodcut Farm for mixed employment floor space, promoted by the interested party.
The appellant sought statutory review of the decision to adopt the plan under section 113 of the 2004 Act. Lang J refused permission to apply. She accepted that the claim was subject to the Aarhus cap (on the total costs liability of claimants to ensure that environmental litigation was not prohibitively expensive contained in Part 45 of the Civil Procedure Rules (CPR)). In the present case, the cap was £10,000. The appellant was ordered to pay the respondents’ and the interested party’s costs up to that cap.
The Court of Appeal dismissed the appellant’s appeal against that decision, finding that unsuccessful claimants at the permission stage might be liable to more than one defendant and/or interested party for their reasonable and proportionate costs in preparing and filing acknowledgments of service and summary grounds: [2019] EWCA Civ 1230; [2019] PLSCS 135.
The appellant appealed. The issue was whether a claimant in statutory and judicial review cases who was unsuccessful at the permission stage should be liable for the costs of multiple other parties, including respondents and interested parties.
Held: The appeal was dismissed.
(1) The appellate courts, and principally the Court of Appeal, had responsibility for developing the principles upon which courts might exercise their discretionary power within the framework of the statute, the rules of court and the practice directions. Therefore, regard had to be had to R (Gourlay) v Parole Board [2020] UKSC 50; [2020] 1 WLR 5344 which gave guidance on that primary responsibility and on the limited circumstances in which the Supreme Court would intervene to review the Court of Appeal’s decisions in such matters.
As the Court of Appeal had the principal responsibility for monitoring and controlling the developing practice in relation to orders for costs, the Supreme Court was ordinarily very slow to intervene. The Court of Appeal heard many more cases and was better placed to assess what changes in practice were appropriate. The Supreme Court could not respond with the speed, flexibility and sensitivity of the Court of Appeal. Therefore, the normal approach was one of non-interference with guidance on costs and other matters of practice. Only in the rare circumstance that an appeal on costs raised a question of law of general public importance was it appropriate to appeal to the Supreme Court solely on a question of costs.
The Court of Appeal had to keep under review its decisions laying down guidance on practice and it was wrong to treat its rulings on principles of practice as binding legal precedents from which it could not depart. Nonetheless, it was appropriate for the Court of Appeal to review a decision laying down a principle of practice where there was a sufficient reason to do so, such as where there had been a material change of circumstances or where a previous case had been decided per incuriam: Gourlay followed.
Applying the reasoning in Gourlay to the facts of the present case, the appeal disclosed no error of law and had to be dismissed.
(2) The appellant had relied on the decision of the House of Lords in Bolton Metropolitan District Council v Secretary of State for the Environment (Practice Note) [1995] 1 WLR 1176 as establishing that, where there was multiple representation in a planning appeal, the losing party would not normally be required to pay more than one set of costs. That case provided guidance on practice and concerned the award of costs after a substantive hearing and predated the CPR which introduced the acknowledgment of service procedure. The guidance in Bolton had to be read in the light of the new rules in the CPR. However, the Bolton principles remained relevant in planning cases because the successful defendant or interested party could only recover its costs for preparing those documents where the costs were reasonable and proportionate.
Case law emphasised that CPR Part 54 obliged a defendant or interested party to file an acknowledgement of service and summary grounds if it wished to take part in a judicial review (whereas in the past there had been no such obligation). In those circumstances, an unsuccessful claimant should in principle be liable for the reasonable and proportionate costs of defendants and interested parties in relation to that initial procedural step. That reasoning applied equally in the context of statutory planning reviews.
(3) The appellant could succeed in this appeal only if it could establish an error of law in the decision of the Court of Appeal. There was no error of law in the decision to qualify or make an exception to the guidance as to practice contained in Bolton because that decision was itself no more than guidance as to practice. Moreover, the Court of Appeal had not erred in law in its construction of CPR rule 54.8 and 54.9 and Practice Direction 8C. The preparation, filing and service of the acknowledgement of service was mandatory if the person served with the claim wished to take part in the judicial review. While CPR Part 54 established a general practice in relation to the award of costs for attending the oral permission hearing, it was silent on the cost of preparing the acknowledgement of service: R (on the application of Leach) v Local Administration Commissioner [2001] EWHC Admin 455; [2001] 4 PLR 28 and R (on the application of Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346; [2004] 1 PLR 29 considered.
Ned Westaway and Esther Drabkin-Reiter (instructed by Richard Buxton Environmental and Public Law) appeared for the appellant; James Maurici QC and Jacqueline Lean (instructed by the Government Legal Department) appeared for the first respondent; the second respondent and the interested party did not appear and were not represented.
Eileen O’Grady, barrister
