Challenges and Opportunities in Judicial Review Costs
INTERESTED PARTY COSTS
IN JUDICIAL REVIEW
RICHARD BUXTON
RICHARD BUXTON SOLICITORS
ENVIRONMENTAL PLANNING AND PUBLIC LAW
CAMBRIDGE
rbuxton@richardbuxton.co.uk
Tel: 01223 328933
SUMMARY
•
CPRE Kent appealed paper costs order (only) in local plan challenge
•
Court of Appeal followed
Mount Cook
•
Unsatisfactory rules remained in place
•
Supreme Court granted PTA
•
“Glimmer of hope” for better access to justice
•
We need help from other JR practitioners to nail this!
MOUNT COOK
•
R
(
Mount Cook Land Ltd.) v. Westminster City Council
[2003] EWCA Civ 1346.
•
Big Council, big developer, no IP
•
Dispute about costs awards of oral hearings
•
Shortly after new CPR and
Leach
[2001] EWHC Admin 455
•
“The effect of
Leach
certainly in a case to which the Pre-Action Protocol applies is that a
successful defendant
or other party
at the permission stage who has filed an
acknowledgement of service pursuant to CPR 54.8 should generally recover the cost of
doing so from the claimant, whether or not he attends any permission hearing”.
EFFECT
•
“Gospel” that for awards to IPs at the paper permission stage are OK
•
Unpredictable whether in fact awarded but always a danger
•
Confirmed in
R (Luton BC) v. Central Bedfordshire Council
[2015] EWCA Civ 537 as
“ordinary principles”
•
IP claims tend to be substantial
•
In Aarhus cases results in default costs limits being used up at permission stage
•
Where no Aarhus cap, can be truly frightening levels of exposure
APPEAL IN CPRE KENT CASE
•
Default cap of £10k
•
Approx claims: SS £3.5k, LPA £5k, IP £ 8k
•
The 10k used up in order so IP in fact awarded £1.5k
•
We say should be £3.5k: only one set, as in
Bolton v SSE (Practice Note)
[1995] 1 WLR 1176
•
Decided to appeal in public interest
•
Planning LJ in CA recognised problem and granted permission
•
CA at hearing tried to reconcile
Mount Cook
and
Luton
with
Bolton
•
Proportionality approach - further confusion
APPEAL TO SUPREME COURT
•
CA reasoning re
Bolton
wrong, and ditto
Mount Cook
•
No account of other cases incl
Berkeley
(x 2),
Ewing
, etc.
•
Proportionality approach highly unsatisfactory
•
Costs of submission on duplication etc.
•
Examples of problems caused
[NB not appealing issues of correct defendant in statutory appeal cases or as such eating into
the Aarhus cap excessively at permission stage]
**** PTA GRANTED 28 FEBRUARY 2020 ****
•
Timing unknown, but advise staying costs orders pending SC sorting
•
SC
wants examples of practical effects of IP costs problem
So HELP PLEASE
•
Experience of issue in non-Aarhus cases?
•
Experience in Aarhus cases?
•
Please provide details!
(Even if some deal was struck later, need to know order made on paper and/or
at oral hearing)
CPRE Kent appealed for a fairer costs order in a local plan challenge, seeking better access to justice. Key cases like Mount Cook and Luton highlight the complexities in costs allocation. The appeal to the Supreme Court aims to address these challenges and seeks clarity on the proportionality approach.
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Presentation Transcript
INTERESTED PARTY COSTS IN JUDICIAL REVIEW RICHARD BUXTON RICHARD BUXTON SOLICITORS ENVIRONMENTAL PLANNING AND PUBLIC LAW CAMBRIDGE rbuxton@richardbuxton.co.uk Tel: 01223 328933
SUMMARY CPRE Kent appealed paper costs order (only) in local plan challenge Court of Appeal followed Mount Cook Unsatisfactory rules remained in place Supreme Court granted PTA Glimmer of hope for better access to justice We need help from other JR practitioners to nail this!
MOUNT COOK R (Mount Cook Land Ltd.) v. Westminster City Council [2003] EWCA Civ 1346. Big Council, big developer, no IP Dispute about costs awards of oral hearings Shortly after new CPR and Leach [2001] EWHC Admin 455 The effect of Leach certainly in a case to which the Pre-Action Protocol applies is that a successful defendant or other party at the permission stage who has filed an acknowledgement of service pursuant to CPR 54.8 should generally recover the cost of doing so from the claimant, whether or not he attends any permission hearing .
EFFECT Gospel that for awards to IPs at the paper permission stage are OK Unpredictable whether in fact awarded but always a danger Confirmed in R (Luton BC) v. Central Bedfordshire Council [2015] EWCA Civ 537 as ordinary principles IP claims tend to be substantial In Aarhus cases results in default costs limits being used up at permission stage Where no Aarhus cap, can be truly frightening levels of exposure
APPEAL IN CPRE KENT CASE Default cap of 10k Approx claims: SS 3.5k, LPA 5k, IP 8k The 10k used up in order so IP in fact awarded 1.5k We say should be 3.5k: only one set, as in Bolton v SSE (Practice Note) [1995] 1 WLR 1176 Decided to appeal in public interest Planning LJ in CA recognised problem and granted permission CA at hearing tried to reconcile Mount Cook and Luton with Bolton Proportionality approach - further confusion
APPEAL TO SUPREME COURT CA reasoning re Bolton wrong, and ditto Mount Cook No account of other cases incl Berkeley (x 2), Ewing, etc. Proportionality approach highly unsatisfactory Costs of submission on duplication etc. Examples of problems caused [NB not appealing issues of correct defendant in statutory appeal cases or as such eating into the Aarhus cap excessively at permission stage]
**** PTA GRANTED 28 FEBRUARY 2020 **** Timing unknown, but advise staying costs orders pending SC sorting SC wants examples of practical effects of IP costs problem So HELP PLEASE Experience of issue in non-Aarhus cases? Experience in Aarhus cases? Please provide details! (Even if some deal was struck later, need to know order made on paper and/or at oral hearing)
