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 COLLINS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th January 2010

Lord Justice Mummery:

1. This is a renewed application for permission to appeal. The application is made by Mr Lucian Eyers and Mrs Claire Eyers in person. The decision which they wish to appeal is the decision made by Collins J on 12 May 2009 in which he was dealing only with an application made by Mr and Mrs Eyers for the costs of judicial review proceedings which had been disposed of by Mr Mark Ockelton on 12 February 2009. He directed that costs would be dealt with in writing. As stated in paragraph 21 of his judgment of 12 February, the papers were to be put before a High Court judge, if the parties could not reach an agreement.
2. Mr and Mrs Eyers put forward their arguments, information and submissions about costs. An agreement was not reached. So it came before Collins J to be dealt with on the papers without a hearing. He gave a decision in which he balanced various factors and decided that there should be no order as to costs. He gave reasons, which I will come back to in a moment.
3. The position is that there can only be an appeal against a decision of the lower court on costs, first if permission is obtained, and in this case the permission of this court is required. Secondly, in order to obtain permission, this court has to be satisfied that there is a real prospect of the appeal succeeding. There is no point in allowing appeals to go forward which are going to fail and incur more costs for everybody. In deciding whether an appeal against an order for costs has a real prospect of success, the standard practice in this court, established by cases over many years, is that it will only interfere with a discretion that a judge of first instance has on costs if it can be shown that his decision was plainly wrong. That means he has misunderstood the law, or has made a mistake of legal principle, or has misunderstood the facts by taking into account things that are not relevant or forgetting to take into account things that are relevant. The judge at first instance has a wide discretion as to what he thinks is a fair and reasonable order to make about who should pay the costs of the case.
4. The application was, in accordance with the procedure of this court, first put before a Lord Justice to deal with on the written materials. Dyson LJ considered the papers and he refused permission for these reasons. He said:

"There is no appeal from the order of Mr Ockelton on 12 Feb 2009 and it is too late to appeal now. The only question for Collins J was what order for costs to make. He considered the merits of the judicial review claim and concluded (in the appellants' favour) that it was likely that the decision to serve a breach notice would have been quashed in the proceedings. But as against that, he had to weigh in the balance the fact that (i) the appellant should have agreed to the withdrawal of the claim and avoided the costs for hearing before Mr Ockelton and (ii) it is important not to discourage sensible withdrawals of decisions by making orders for costs against decision makers who have agreed to withdraw their decisions."

Then he added this, which is very much what I have already said:

"This court will not interfere with the discretionary performance of this balancing exercise unless the judge's decision is plainly wrong. This decision was not even arguably plainly wrong."

5. As is their right, Mr and Mrs Eyers then asked for a renewed consideration of their application. That involved the oral hearing which has taken place today. Mr and Mrs Eyers have put before the court all the written materials that were before Dyson LJ and they have made oral submissions in the course of the last half an hour. I have discussed with them the basis on which this court would decide to grant permission and the various points they wish to make for the purposes of obtaining permission to appeal.
6. To understand the points it is necessary to sketch in what this dispute was really about. The outline facts are these. The council granted Mr and Mrs Eyers planning permission subject to conditions in 2004. The permission was to put up some stables with storage and a tack room. Then at the beginning of 2008 the council, quite wrongly in the view of Mr and Mrs Eyers, served on them a Breach of Condition Notice, alleging that condition 11 was being breached, in that there was a prohibition against the use of the building as a dwelling. They disputed the validity of the notice, saying it should never have been served. In fact they make more serious allegations which I will come to in a moment.
7. They applied to the Administrative Court for permission for judicial review. You cannot bring judicial review proceedings without the prior permission of the court. This is in order to stop such proceedings being abused. They succeeded in getting permission before Collins J to bring judicial review proceedings. After the permission had been obtained the council decided to withdraw the notice. Mr and Mrs Eyers had achieved part of what they had set out to achieve, which was to get this notice set aside by the court or withdrawn. The council made an offer, which was not considered adequate by Mr and Mrs Eyers, to repay certain costs of the proceedings. Mr and Mrs Eyers claimed that they should have been paid costs and damages for the financial loss that they say has been inflicted on them by the unlawful acts of the council.
8. They allege that there was misconduct on the part of the council. They say that the service of this notice was done maliciously and viciously. It was not a mistake. They say that, as a result of this, they have suffered financial hardship. Mr Eyers said that he lost his credit rating because of the notice. The value of the property was considered to be seriously affected by the mortgagee. They could not borrow any further monies as a result of this notice being served. They feared the council might even do this sort of thing against them again. They complained that the council should not, as Mr Eyers put it, be allowed to walk away free from this situation. It seemed unfair and, in Mr Eyers' words, the council was "getting away with murder".
9. As well as alleging misconduct on the part of the council, there are also allegations of misconduct on the part of the barrister who represented the council. It was alleged that Mr Ockelton was misled in certain respects by the council's barrister.
10. I have got to look at all of those allegations in the context of the application that is before me, which is not for a re-hearing of the case. It is for a permission to appeal against Collins J's decision that there should be no order as to costs, and I bear in mind the basic principles that I set out at the beginning, that this is an appeal sought to be brought against a discretion, which is really for the judge at first instance. He decides who should pay costs and there is no appeal unless he goes off the rails about the law or about the facts.
11. What we have from Collins J is, in my view, a balanced decision. He first of all dealt with the amounts that Mr and Mrs Eyers were talking about, which they are saying the council should foot the bill for. He said, at paragraph 3 of his decision:

"I am afraid the claimants have misunderstood the basis on which costs, as opposed to damages, are rewarded. Costs are only to cover work done in preparing and presenting a claim. They do not cover and cannot cover financial loss as claimed by the claimants."

12. Then he went on to balance what factors were in favour of Mr and Mrs Eyers. He said there was a factor in favour of them. The breach of condition notice had been withdrawn following and because of the institution of their claim. So there was an argument for saying that they should recover the costs of preparing and presenting their claim. They had to bring the claim to get the council to back off. He says that, to the extent that this claim extended beyond the quashing of the notice, any recovering of costs will not cover all their loss. Then he looked at the fact that the council had withdrawn its decision to serve the breach notice and said this, in paragraph 6:

"…the claimants ought to have agreed to the withdrawal of the claim and…the hearing before Mr Ockelton was unnecessary."

13. That was a point in favour of the council, that further costs had been incurred which were not necessary because it was not reasonable of Mr and Mrs Eyers to refuse to agree to the claim being withdrawn. He said, balancing one side's factor against the other side's factor, that in the circumstances it was appropriate that there should be no order.
14. In my judgment, there is no real prospect of this court, sitting with three judges, disagreeing with what the judge did. It might not have done the same thing itself, but that is not the point. Was it legally wrong for the judge in the exercise of its discretion to say this was a case for no order? In my view, it is impossible to say that that was legally wrong. There really is no prospect of this appeal succeeding. In fact, as I have pointed out to Mr and Mrs Eyers, if they obtained permission to appeal and this went to appeal and they lost the appeal, as I think they would, they would have to pay the council's legal costs of the appeal and so they would finish up worse off than they are now, not only having suffered the losses they complain of but -- and this would really be a bitter pill as far as Mr and Mrs Eyers were concerned -- they would have to pay money to the council in relation to an unsuccessful appeal about costs.
15. I can tell Mr and Mrs Eyers from many years' experience, not just in this court but in other courts, that appeals against costs hardly ever succeed, for the reason that it is the judge who is dealing with the case to decide what is fair about costs. This court would only interfere with the appeal court is there has been an error of law, and there has been no error of law in this case.
16. I would say finally that I do not need any persuading that Mr and Mrs Eyers feel very, very deeply aggrieved about what has happened. They are aggrieved by the council's conduct and they are aggrieved by the alleged conduct of the council's barrister and they are aggrieved by the refusal of Collins J to make an order for costs in their favour. I do not doubt for a minute that that is their feeling about this, but cases in courts are not decided according to the feelings of parties; they have to be decided according to the law. I have to say that the law is clear about this for the reasons that I have given. I refuse permission. I know that Mr and Mrs Eyers will be aggrieved by my decision, but I have to make a decision regardless of whether people feel aggrieved by it or not. The decision I make is, in my view, in accordance with the law.

Order: Application refused