England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Collins)

		Royal Courts of Justice Strand, London, WC2A 2LL Friday 7 December 2001

Friday 7 December 2001

JUDGMENT ON COSTS
1. LORD JUSTICE SIMON BROWN: The issue now arising is whether there should be no order for costs, an order for one set of costs or an order for two sets of costs.
2. Two sets of costs would be very unusual, not least in the light of the decision of the House of Lords in Bolton Metropolitan District [1995] 1 WLR 1176. It is true that in one sense, of course, the issues could perhaps be said not previously to have chrystallised but, in so far as that was so, that is hardly to the respondents' credit. True, too, in Bolton there were indeed two sets of costs ordered, but there is a striking contrast between the unsuccessful party in that case, a group of eight local authorities supported financially by a consortium of major commercial interests, and the public interest groups who are the unsuccessful appellants before us. So there is no question of two sets of costs here.
3. If there were to be one set only, no one seems to be suggesting that the order should be in favour of BNFL rather than the Secretary of State, which again would be unusual in the light of the Bolton Metropolitan case; and if one asks, as between the appellants' and the Secretary of State's arguments in this court, whose prevailed or proved the more helpful and successful, the answer is not entirely obvious.
4. If one approaches the case from the other way round and looks, so to speak, at the respondents globally and asks should there be one set of costs in their favour, having regard to their arguments generally as against the appellants', still the answer is by no means clear.
5. We think there are two special features of this case. The first is that the public interest in this particular area, the area of public health and well-being, is obviously very great and very exceptional, and it is right that that public interest be borne clearly in mind and that all issues be properly examined in the light of it. Secondly, the appellants here, though they have failed before us, at least succeed on one important point of principle, the question as to whether ordinarily capital costs would fall to be brought into account, and they have thereby corrected what we identify as an error in the main ground of decision below.
6. We bear in mind that we are not asked to disturb, and do not disturb, the order for costs below which was against the applicants (the appellants before us) so that on any view they must bear not merely their own costs of the proceedings throughout, but also the costs they were ordered to pay the Secretary of State below. We do not think it right that they should be ordered to pay in addition the costs of the appeal.
7. That, of course, is to be regarded as a highly exceptional course. It should not encourage public interest groups generally to suppose they will be immune from any adverse orders for costs on appeal, but we make none here.
8. We are, of course, most grateful to both the respondents for their arguments, not least BNFL. It is highly desirable, not merely that the public interest groups' argument should be available to the court, but so too should be the respondents'.
9. There it is: appeal dismissed, no order for costs.
ORDER: Appeal dismissed. No order for costs.