England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th October 2007

Lord Justice Waller:

1. At first blush, this application, being an application to appeal an order relating to costs and having been refused in unequivocal terms by Mummery LJ on paper, it would appear to have little prospect of success. But as I have indicated to Mr Batstone, there are some troubling aspects. The chronology is as follows: on 7 February 2007, the Agricultural Land Tribunal granted a certificate of bad husbandry in respect of some land at New Inn, Amroth, Pembrokeshire. That land had been let to a Mr Davies by the Philipps. The decision of the Agricultural Land Tribunal was a matter of some importance to the Philipps, because on the making of such a certificate depended the effectiveness of a notice to quit served by them on Mr Davies. On 6 March 2007, Mr Davies requested the tribunal to refer certain questions of law to the High Court. On 13 March, the tribunal refused that request, and on 27 March 2007 Mr Davies made an application under CPR 23, requesting the court to order the reference of points of law. CPR 23 does not, in terms, require the Philipps to be made a party, but they were made a party, and they would undoubtedly on any view have had to have been served as interested parties.
2. We know very little about what went on between 27 March and the date of the hearing before Sullivan J on 17 May, save what Mr Batstone has told us this morning. It is clear, on the face of the timetable, that the period of time between 27 March and 17 May is not great. In that period, the solicitor for the Philipps put in a statement correcting certain matters that occurred before the tribunal. One can see further that the skeleton argument for Mr Davies was only served on 14 May, and a skeleton for the tribunal prepared by Mr Harris was only served on 15 May. It is clear that some discussion between Mr Batstone (for the Philipps) and Mr Harris (for the tribunal) had taken place, because those skeletons referred to the possibility that Mr Harris would not be able to be present because his wife is expecting a baby, and that Mr Batstone might appear. But Mr Batstone informs us that he did not know precisely what points the tribunal would run until he received that skeleton of Mr Harris. In any event, the arrangement between Mr Batstone and Mr Harris was that Mr Harris would appear at the hearing to support Mr Harris' skeleton argument, Mr Batstone would not appear unless Mr Harris was not available, and Mr Batstone would put in some written submissions dealing more fully with certain points that Mr Harris had dealt with in his skeleton. There was then the hearing, and the judge dismissed the application. What the judge then had to do was to deal with the question of costs, and there is a transcript of what occurred when that application was being dealt with. First of all, Mr Harris put in the tribunal's bill of costs, and then drew the court's attention to the fact that the Philipps also had a bill of costs which they put in, and he put that bill in, drew the court's attention to it, but then said he had nothing to say about it.
3. The judge then said this:

"If I could ask you to tell Mr Batstone at least that I did consider it. I would say on the record, though, that the normal practice in challenges of this kind (insofar as there is a normal practice, because there are not many challenges against Agricultural Land Tribunals), but in statutory appeals of this kind one would, where the decision maker was defending the decision, unless there was some very separate and distinct interest, one would not normally order two sets of costs. That would be the normal position. I will hear submissions about it from Mr Roger."

4. Later the judge checked with Mr Roger what Mr Roger's experience was, and Mr Roger explained that in his experience, in one case, so far as the Agricultural Tribunal was concerned, the landlord had not asked for costs, and all he then said was that he did not think there was any different or should be any different approach in relation to this type of application. The case which deals with orders for costs, and the question whether there should be two orders or three matters of that sort is a House of Lords decision, Bolton v Secretary of State for the Environment [1999] 1 WLR 1176. Lord Lloyd gave the judgment of the court on that occasion, and it is right to say that he quoted from a decision of the Court of Appeal in which Leggett LJ had said (certainly in a planning context):

"In my judgment, circumstances such as these, where the issues argued on behalf of two or more respondents are identical, the court should be disposed to make only one order for costs."

Then Lord Lloyd went on:

"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."

He then deals with the Secretary of State defending a decision being entitled to costs, and then he says this:

"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."

5. Pausing there, one simply needs to replace "landlord" for "developer" and see that normally it may well be that a landlord will not get his costs unless he can show that there is a separate issue, and the mere fact that the landlord is the landlord will not itself justify a second set of costs in every case. Then Lord Lloyd went on:

"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."

6. Interestingly enough, in that case they went on to award, I think, a third set of costs, but that matters not. The point is that there is, as it were, an approach identified by the House of Lords, but the House of Lords are saying that it should not be a rule. As far as I am concerned, I am troubled about certain points in this case which seem to me possibly to distinguish it from the norm. First, it seems to me possible that the judge is applying much more of a rule than should be applied without considering the particular circumstances of this case. Where, as it seems to me, a party are served with proceedings such as these, it is difficult to think that he will (or that party will) not incur at least some costs in considering the position where the matter is of importance to him. It seems to me that Lord Lloyd is accepting that may well be the position when he differentiates between a first instance decision and a decision of an appellate court. It furthermore seems to me that a question will arise in many cases as to what the appropriate stage is up to which some costs will be awarded. For example, if a party who has a serious interest in a matter does not and is not aware of precisely the points that have been taken by a tribunal, he may be entitled to incur costs up to the stage of identifying what points are being taken, and whether there is a separate point that can be argued. It also seems to me that in this case, one can see that those representing the Philipps were not simply cavalier in relation to costs. They did think about the question as to whether Mr Batstone should appear, and they did limit themselves to written submissions. Finally, the other special feature of this case is that there was apparently an arrangement between Mr Harris and Mr Batstone that because Mr Harris' wife was expecting a baby, Mr Batstone should remain ready to appear in the case in case Mr Harris could not be there. It does, on the face of it, seem very tough in that situation that at the conclusion of the hearing the tribunal should be entitled to have 100% of its costs, but the Philipps should have no costs at all. Now, I have spelt out those points in some detail. I have done that because, as it seems to me, the normal rule may well be that which was adopted by the judge in this case, and there should be no encouragement to think that persons can come along and argue points because they want to argue the points, when those points are being argued by another party. But there is room, as it seems to me, for this court identifying at least some area in which a party who is interested, like the Philipps' are here, may obtain at least some costs, having to consider the matter as they would have had to do on this occasion.
7. As I have emphasised to Mr Batstone, this is an appeal on costs. It is an appeal which will have its difficulties. One would hope, possibly, that having spelt out some of the points which, it seems to me, might distinguish this case from the ordinary case, that good sense could prevail among the parties, so that before further costs were incurred a compromise could be reached. But I would allow this application and grant permission to appeal.

Lord Justice Keene:

8. I agree. It is important that the normal and proper reluctance to order two sets of costs in favour of parties running the same basic arguments does not harden into a rigid rule which inhibits a proper consideration of all the circumstances of the individual case. There may be, for example, instances where such a second party might be entitled to some of its costs, perhaps those incurred at an earlier stage or stages of proceedings. So I can see some value in allowing the full court to look further at this topic, and there are, as my lord has indicated, some specific circumstances here which may distinguish it from the normal situation, particularly in respect of Mr Batstone's position. But I too would emphasis the risks run by the applicants in pursuing this matter to a full hearing before this court. They may lose, and a costs order against them then could be substantial, and indeed quite disproportionate to the amount in issue. Having said that, I agree that permission to appeal should be granted.

Order: Application granted