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
ADMINISTRATIVE COURT
(MR JUSTICE CRANSTON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th December 2009

Lady Justice Smith:

1. This is an appeal from a costs order made by Cranston J on 8 April 2008 at the end of a hearing of a renewed application for permission to bring proceedings for judicial review. Permission to appeal again his costs order was granted by Keene LJ and myself on 5 December 2008.
2. In 2007 the appellant, Ms Ursula Riniker, commenced proceedings for unfair dismissal and other employment-related claims against the City and Islington College Corporation. The claim proceeded initially in the Central London Employment Tribunal. However, during a case management discussion in September 2007, it emerged that one of the lay members who sits at that centre might be called as witness in the proceedings. To avoid any appearance of bias, the Regional Chairman for London Central decided to transfer the case to the Watford centre. Ms Riniker objected to that decision on the ground that, due to her poor health, it would not be possible for her to travel to Watford, which is the London North West region.
3. The Regional Chairman for London North West, Miss Vivienne Gay, offered to transfer the case for hearing at Stratford in East London. Ms Riniker responded that that was not an acceptable option. Miss Gay decided that the case would be heard in Watford. Ms Riniker indicated that she intended to seek judicial review. Miss Gay pointed out to her that, if Miss Riniker were dissatisfied with her direction, the appropriate course was to appeal to the Employment Appeal Tribunal.
4. Notwithstanding that advice, Ms Riniker commenced proceedings for judicial review on 16 January 2008. Before doing so, she issued letters before action. She was at all times acting in person. In the proceedings, she sought the quashing of the order that the case be heard in Watford and a mandatory order returning the case for hearing at Central London. The claim was brought against the employment tribunal's Regional Chairman of London Central and against Miss Gay. It should have been brought against the Ministry of Justice, but nothing turns on that.
5. The case was handled for the defendants by the Treasury Solicitor and was served personally by Ms Riniker on the Treasury Solicitor in the early evening of 21 January 2008.
6. An Acknowledgment of Service dated 14 February was filed by the Treasury Solicitor on 18 February 2008. This set out the grounds of resistance to the claim very fully and included a prayer for the costs of responding to the claim. The document was filed three days late. This was later said to be due to an administrative error in the Treasury Solicitor's office. It had been thought that the proceedings had been served on 24 February rather than 21 February. Ms Riniker was convinced that the staff within the Treasury Solicitor's office had dishonestly sought to pretend that they thought the claim had been served on the 24^th when they knew perfectly well that it was served on the 21^st. I say nothing more about that.
7. On 25 February 2008, Beatson J refused permission to proceed after consideration of the papers. He said that the claim was unarguable and totally without merit. That was because judicial review is a remedy of last resort. Ms Riniker had an adequate remedy by appeal to the Employment Appeal Tribunal. In any event, he said the decision to hear the case in Watford was not flawed on public law grounds or by virtue of Article 6. On receipt of that decision, Ms Riniker wrote a letter criticising Beatson J in scurrilous terms.
8. On 5 March 2008, Ms Riniker renewed her application for permission to bring proceedings. The hearing was fixed for 8 April 2008. But before the hearing date arrived several things happened. Ms Riniker submitted a very detailed response to the Acknowledgment of Service. Also, by a letter dated 24^th, she pointed out to the Treasury Solicitor that the Acknowledgement of Service had not been lodged in time and that, if the defendants wished to oppose the application, they would have to seek permission to take part in the hearing pursuant to part 54 rule 9.1 of the CPR.
9. In a letter dated 1 April 2008, a solicitor in the Treasury Solicitor's department acknowledged to the court that the Acknowledgment of Service had been served late, apologised and asked for permission to take part in the hearing and to defend the proceedings on the basis set out in the Acknowledgement of Service. On 2 April another solicitor sent a letter of apology for the oversight to Ms Riniker.
10. The defendants served a document dated 1 April entitled "Outline submissions on hearing of renewed application for permission for judicial review". This was a short document summarising the effect of the Notice of Appearance and quoting the whole of Beatson J's observations when refusing permission on paper. At the same time the defendants served on Ms Riniker a schedule of costs in the sum of £4,700 and a covering letter which informed her that, at the hearing, they would be seeking an order for costs of the Acknowledgment of Service and of attendance at the hearing. The schedule did not break down into items of expenditure which were referable to the Acknowledgment of Service and to the proposed attendance at the hearing although it is possible, if one has knowledge of solicitors' bills and costs to work out that which was likely to be referable to the attendance at the hearing.
11. On 7 April Ms Riniker wrote to the court asking that the defendants should be refused permission to take part in the hearing. When 8 April arrived, Ms Riniker was struck down by a sudden illness and was unable to attend court. She faxed a message to the court seeking an adjournment but this was not accompanied by any medical certificate and Cranston J decided to proceed in her absence. He considered that there would be no unfairness to Ms Riniker as he had before him her written submissions, which were very full.
12. The judge clearly allowed the defendants to take part in the hearing. We can see that because we have a transcript in which Miss Gray, their counsel, was speaking. It is also apparent from the transcript that the judge had read the Acknowledgment of Service. The judge gave a judgment refusing permission to proceed. Miss Gray applied for costs. I quote verbatim the exchange which took place between them:

"Miss Gray: My Lord you will see some of the correspondence before the court. I have been instructed to ask for costs today. We have provided a schedule of costs.

Mr Justice Cranston: Yes I have to say it does not seem unreasonable at all but, since she has not had a chance to make any submissions on costs, I think we need to give her an opportunity to do so. In principle, you must get your costs. I think it is a question of what is the best way, in your submission, to proceed. Shall I make the order and give her 14 days or 28 days to object in writing?

Miss Gray: My Lord, yes. I would be happy with that, if you would make the order. As you said, we are entitled to our costs and I would submit that she be given 14 days to object in writing.

Mr Justice Cranston: Yes. 14 days to object in writing to the order. Remind me of the amount.

Miss Gray: It was £4,700.

Mr Justice Cranston: Yes. Having looked at the schedule earlier today, that did not seem unreasonable. She needs to have the chance to respond so that in 14 days she can object in writing and the matter can be dealt with on the papers. Thank you very much"

13. Pursuant to that exchange an order was issued. We have been told today that it was drafted in the court office and not by Miss Gray of counsel. It said:

"1) Permission is given for the Defendants to be present in court today;

2) Permission be refused;

3) The Claimant to pay the costs of the defendants of today's attendance summarily assessed in the sum of £4,700;

4) The Claimant have14 days from today to respond in writing as to why she should not pay some costs 5) Thereafter the matter is to dealt with on the papers [to be dealt with on the papers I think it must have been meant]"

14. Pursuant to her opportunity to object, Ms Riniker did object in writing and not only about the costs order. She invoked CPR Part 23 under which, in respect of an order made in her absence, she was entitled to ask for a re-hearing. She wished to challenge the judge's decision to proceed in her absence and the outcome of the hearing as well as the costs order. Her objections as to the costs order were put before Stadlen J, who confirmed Cranston J's order. We have not seen that order, but we understand that he did not give reasons for his decision. Ms Riniker's other objections were apparently not put before a judge but were rejected by a court officer, who also advised Ms Riniker that, if she wanted to challenge Cranston J's order, she must go to the Court of Appeal and would have to seek the permission of the court.
15. As I explained in my judgment of 5 December 2008, Ms Riniker's application should have been put before a judge and was not. Ms Riniker was angry about that. A great deal of correspondence ensued and in due course a very reluctant Ms Riniker appeared before the Court of Appeal comprising Keene LJ and myself. After a very full hearing on all the outstanding issues we determined all aspects of her submissions and refused permission in respect of all her grounds save for the appeal against the costs order for which we granted permission. We did so after consideration of the authority of R (Mount Cook Land Limited and Westminster City Council) [2003] EWCA Civ 1346. That case is Court of Appeal authority for the proposition that the usual costs order following an unsuccessful application for permission to bring judicial review proceedings will be that the unsuccessful claimant will be ordered to pay the defendant's costs of filing the Acknowledgment of Service but will not usually be ordered to pay the costs of attending the hearing. The judge has a discretion to award the costs of attendance but should do so only in exceptional circumstances. Some examples are given of the kind of situation which might amount to an exceptional circumstance in which the costs of attendance would be awarded. It appeared to us from the transcript that Cranston J had not been invited to consider that authority and did not have it in mind. He appears to have awarded the costs of attendance without considering whether the circumstances were exceptional and without considering what part of the bill was attributable to the costs of attendance and the costs of the Acknowledgment of Service. Accordingly we thought the costs appeal was arguable.
16. Today, on the appeal, Ms Riniker has appeared in person. She submitted two skeleton arguments, one of which sought to re-open the arguments which were disposed of at the hearing last December. The court has no jurisdiction to re-open those matters, as we have explained to her, and I shall say no more about them. However her main skeleton argument deals with the issue of costs on which she has permission to appeal.
17. At the outset of the hearing we indicated to Ms Riniker that on reading the papers we thought that there was some merit in her submissions and we would call immediately upon Miss Gray to address us as to why the appeal should not be allowed. However, it is convenient if at this stage if I summarise Ms Riniker's submissions taken from her skeleton arguments. She submitted that the judge's order for costs was wrong, indeed unlawful. First, the judge had purported to make an order for the costs of the hearing. The words when making the order were not specific, but the terms of the written order were quite clear. He ordered that the claimant was to pay the costs of 'today's attendance, summarily assessed at £4,700'. That, she submitted, was wrong in principle because paragraphs 8.5 and 8.6 of the Practice Direction to CPR 54 stated as follows:

"8.5 Neither the defendant or any other interested party need attend the hearing on the question of permission unless the court directs otherwise."

8.6 Where the defendant or any party does attend the hearing the court will not generally make an order for costs against the claimant."

18. Ms Riniker made two submissions about that. First, she said that paragraph 8.6 really means that there should not generally be any order for costs against the claimant. In the case of Mount Cook to which I have already referred, the Court of Appeal has construed paragraph 8.6 as meaning that the court will usually make an order for the costs of the Acknowledgment of Service but will not generally make an order for costs of attendance. I will return in a moment to Ms Riniker's argument that Mount Cook was wrongly decided but, even accepting Mount Cook as correct, Ms Riniker submitted that there should not have been an order for her to pay the costs of the defendants' attendance at the hearing because, if the judge is going to make such an order, he should at least have explained why he was departing from the usual order. He did not explain why he regarded the circumstances as exceptional. In any event, she submitted, these defendants could never be entitled to the costs of the attendance because they were not entitled to take part in the hearing. That was because they had not filed their Acknowledgment of Service in time. They could not take part unless the court granted permission. Although they had informally asked for permission, the defendants had not made a formal application for permission as she submitted they should have done, pursuant to Part 23. Therefore the judge had no right to allow them to take part in the hearing. What is more, his order recited only that he had given them permission to attend. That was otiose, as anyone has the right to attend the hearing. What was required, she submitted, was permission to take part. That was not given and if they judge had intended to give such permission he had not power to do so, as there had been no formal application.
19. Ms Riniker accepted that, if Mount Cook was correctly decided, it would be usual for the court to order an unsuccessful claimant to pay the costs associated with the filing of the Acknowledgment of Service. However, these defendants ought not to be permitted to have even those costs because the Acknowledgment had not been lodged in time. Moreover she submitted that the defendants had not complied with the pre-action protocol. When we asked Miss Gray about compliance with the pre-action protocol she submitted that there had not been a letter before action and that therefore the protocol had not been invoked. However, Ms Riniker has showed us her letters before action and I am satisfied that the pre-action protocol was indeed invoked. We have not been shown any reply to the letters before action.
20. Finally Ms Riniker made a number of submissions about the bill of costs. She pointed out that it was not clear which items related to the hearing and which to the preparation of the Acknowledgment of Service. I have already mentioned that. She said that the Acknowledgment was more elaborate and therefore more expensive than it need have been. Had a proper answer been given to the letter before action, only a limited amount of work would have been necessary for the preparation of the Acknowledgment. The additional document put in just before the hearing was, in her submission, unnecessary and really all it did was to quote Beatson J. Further she said that the bill had claimed an item for attendance upon her and there had been no contact with her at all.
21. As I have indicated, we found at least some of those submissions on the face of it persuasive and invited Miss Gray to respond. She submitted that the judge's order was lawful and properly made. She acknowledged that the usual order under Mount Cook was that the defendants would only have the costs of their Acknowledgment, but she submitted that the judge was entitled to treat this as an exceptional case. She drew attention to the fact that the circumstances were very similar to those which the Court of Appeal in Mount Cook had given as examples of exceptional circumstances. Ms Riniker had persisted in asking for reconsideration of the decision despite the fact that Beatson J had said that her claim was totally without merit. Also she had been advised at an early stage that her proper course was to go to the Employment Appeal Tribunal. Thirdly she had written a scurrilous letter to the court following Beatson J's decision. In those circumstances, although the judge had not explained his decision fully, as he might have done, his order was open to him and was properly made; we should not interfere with it.
22. In my view Ms Riniker is entitled to succeed in this appeal.
23. As to the costs of attendance at the hearing I would accept her submission that it was not open to the judge to order their payment without considering whether the circumstances were exceptional. It was not suggested to the judge at the time that the circumstances were exceptional. Indeed counsel made no attempt to address the judge on the question of whether the costs of attendance would be recoverable or to remind him of the provisions in paragraph 8.6 of the Practice Direction.
24. Nor indeed did the judge consider whether the usual order that the defendant should be entitled to the costs of preparation of the Acknowledgment of Service ought to apply in a case where that document had been filed out of time. In my judgment those matters were not only relevant to the exercise of his discretion; they were important, indeed vital. Therefore in my judgment the judge erred when he made the order that he did make, allowing the costs of attendance without applying his mind to those important factors.
25. In those circumstances it seems to me right that this court should exercise its discretion afresh. However, it would not be right in my judgment to take into account information which was not available to the judge at the time that he made his decision.
26. On considering the costs of attendance, I can see that if the defendants had put in their Acknowledgment at the right time, they would have had a strong argument for asking the judge to say that the circumstances of the case were exceptional. But they did not put it in time. Their attendance was necessary only because their Acknowledgement was not before the judge and they needed permission to take part and to put it before him. In my judgement it would have been unnecessary for the defendant to attend court as well as putting in a lengthy and detailed written document. In short, the costs of attendance were incurred only because the defendants had failed to put their case before the court in writing.
27. I do not accept Ms Riniker's submission that the defendants were not allowed to take part because they had not put in a formal application. I am satisfied that such is not necessary and I refer in that regard to CPR 54.9(1):

Where a person served with the claim form has failed to file an Acknowledgement of Service in accordance with Rule 54.8 he-

a) may not take part in a hearing to decide whether permission should be given unless the court allows him to do so; but …(not relevant)

I am satisfied that permission to take part may be given informally by the judge in response to an informal application and that it is not necessary for a formal application for such permission to be made under Part 23 of the CPR. I reject Ms Riniker's submission to the contrary.

28. Nor am I impressed by her submission that the court did not give permission for the defendants to take part. The order records that the judge allowed them to attend. Such permission, as Ms Riniker says, was not necessary. However it is clear that the judge did give permission to take part whatever the order says.
29. But, that said, for the reasons that I have already given, I do not think that the defendants should have the costs of their attendance. Nor do I think that they should have the costs of preparation of the Acknowledgment. The thrust of the decision in Mount Cook is that a defendant should have the costs associated with the Acknowledgment because he is obliged to incur those even before the application for permission is considered on paper. If the application fails, he would have been put to unnecessary costs. Thus it is right that he should usually recover those costs. However, where a defendant has not put in the Acknowledgment of Service in time and, even more so, where he has not complied with the pre-action protocol, it does not appear to me that the general rule, as explained in Mount Cook should necessarily apply. The thrust of that decision is that where the defendant has done all that he should have done he should be entitled to those costs. But these defendants had not done all that they should have done; they were late with the Acknowledgment and they had not complied with the pre-action protocol.
30. Accordingly for those reasons I would not allow the defendants' claim for the costs of putting in the Acknowledgment of Service. I would therefore allow the appeal in full.
31. I add a few words because Ms Riniker wished to submit to us that the case of Mount Cook was wrongly decided. In fact what she really wanted us to do was to say that the case of Re-Leach [2001] EWHC Admin 455 had been wrongly decided and has been wrongly followed on numerous occasions since then. In fact the decision of Collins J at first instance in Leach has effectively been subsumed into the decision in this court in Mount Cook and, although Ms Riniker is reluctant to accept it, the case of Mount Cook is binding on this court. However, I will record the gist of Ms Riniker's submission because I am not without sympathy with her standpoint.
32. Her submission is that there should not usually be any order for costs against a claimant who seeks permission to bring proceedings for judicial review and who renews the application orally after refusal on paper. It would have a chilling effect on claimants if they were to be deterred from renewing their applications for permission by the risk of facing a large bill of costs if unsuccessful. That, she submitted, was what was intended by paragraph 8.6.
33. Paragraph 8.6 is prefaced with the words "Where the defendant or any party does attend the hearing, the court will not generally make an order for costs against the claimant". Ms Riniker submitted that in construing this paragraph, the courts in Mount Cook and in Leach were wrong to say that it meant that it would be usual for there to be an order of costs in respect of the Acknowledgment of Service but not in respect of the attendance at the hearing. She submitted that the true meaning of the paragraph was that, where a defendant or any party attends the hearing, the court will not generally make an order for costs against the claimant. In my view, Ms Riniker's submission is incorrect. The intention of paragraph 8.6 must have been to limit its effect to the cost of attendance at the hearing because, if that were not the case, the rule would simply say that the court will generally not make an order for costs against the claimant. The words "Where the defendant or any party does attend a hearing" would be otiose. I do, however, accept that it was the intention of those drafting the rules and practice direction that defendants should keep their costs to a minimum until permission has been given. That is why they are expected to put their case forward in summary form in response to the letter before action as part of the pre-action protocol. If that has been done, as it should be, very little extra work will then be required for the preparation and presentation of the Acknowledgment of Service and the chilling effect of an order for costs will be minimized. There will be an opportunity for the defendants to put their case in full in detail after permission has been granted. The decision of this court in Ewing v Office of Deputy Prime Minister [2005] EWCA Civ 1583 is authority for those propositions: see particularly the judgment of Carnwath LJ at paragraphs 41 to 43 of his judgment.
34. For the reasons that I have given I would propose that this appeal be allowed and that the order for costs made against Ms Riniker should be quashed.

Lord Justice Pill:

35. I agree.

Order: Appeal allowed