England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE THOMAS)

		Royal Courts of Justice Strand London WC2 Tuesday 18 December 2001

JUDGMENT ON COSTS
1. LORD PHILLIPS, MR: Mr David Anderson QC applies for an order that the appellants should pay the costs of the Association of the British Pharmaceutical Industry, on whose behalf he has appeared.
2. The Association took part as an interested and directly affected party in the hearing below. They were awarded their costs. Mr Anderson says that the principles which justified the award below apply equally before this court. Mr Hoskins for the appellants resists this application on the grounds that, in judicial review proceedings where there is multiple representation on behalf of the defendants or respondents, the normal order is simply that the Secretary of State will have his costs but other parties will not. That is indeed the normal rule as the House of Lords made plain in Bolton MDC v The Secretary of State for the Environment [1995] 1 WLR 1176 but, as Lord Lloyd says in that case, although that is the normal rule it is not the inflexible rule:

"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."

3. The matters relied upon by Mr Anderson when seeking costs are, first, that his clients were directly affected by the relief sought. Disclosure was ordered against them and, if the Secretary of State was unsuccessful in resisting the application for judicial review, the Association would almost certainly find itself facing a very substantial damages claim for infringement of Article 81 of the European Convention.
4. The grounds upon which relief had been sought by the appellants expressly averred that ABPI were infringing Article 81. Mr Hoskins responds that the Association only rendered themselves bound by the result of these proceedings by joining in them. Had they not done so, then they would not strictly have been bound by the result. The scenario that that introduces is of a second set of proceedings in which ABPI would seek to persuade the court to reach a decision in conflict with that which would have been reached by this court. That is unattractive and unrealistic. It seems to me that ABPI were justified in taking part both in the Divisional Court and in this court because of their particular special interest.
5. Mr Anderson then submits that the amounts at stake are quite exceptional in this case. In that he is correct. That has not been disputed, and that is also a factor which was held to be a relevant special circumstance in Bolton. Mr Hoskins suggested that it was unnecessary in the Court of Appeal for ABPI to be separately represented. I do not accept that. The department and ABPI were opposing parties to the negotiations which had resulted in the PPRS as a consensual agreement. They do not share the same interest in relation to that agreement. As Mr Anderson has said, had questions of a reference to the European Court arisen, they would quite probably have wished to speak with different voices. It would not have been appropriate for both to be represented by the same solicitors and counsel.
6. For all these reasons I consider that this is an exceptional case in which an order for costs ought to be made in favour of the ABPI on this appeal.
7. LORD JUSTICE ALDOUS: I agree.
8. LORD JUSTICE WARD: I agree.