England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(MR JUSTICE NICOL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24 January 2011

Lord Justice Thomas:

1. This is an appeal against the decision of Nicol J on a judicial review on an issue as to costs. The order for judicial review was in these terms:

"Whether or not paragraph 11 of the Order made by His Honour Judge Gilbart QC on the 10^th day of April 2007 whereby the Claimants should pay the costs of that hearing on an indemnity basis be quashed."

2. There were appeals against the scope of that order but they failed. It was that sole question that came before Nicol J. To explain it, it is necessary to set out some of the background.
3. The applicants to the court, Mr and Dr Riseborough, have a dispute in relation to the compensation for an electricity pylon and electricity lines crossing the land near their house. When the dispute arose the National Grid employed experts. The National Grid then alleged that the appellants obstructed the experts, causing one to resign and the other not to visit.
4. An application came on before HHJ Gilbart QC on 10 April 2007 in which the National Grid sought more time to obtain expert evidence and that they be paid by the applicants the costs that they had incurred as a result of obstruction by Mr and Mrs Riseborough. The judge, in a robust judgment, said that he considered the conduct of the applicants was outrageous and unreasonable; that it had caused the National Grid significant cost; that the applicants should pay the costs on the indemnity basis. He made on order for a detailed assessment.
5. On the basis of what was then before the judge and his acceptance of what was said by the National Grid, it might be difficult to criticise that judgment. However, on 29 May 2007 one of the experts and the applicants wrote a joint letter to the solicitors for the National Grid withdrawing the allegations each had made against the other. This is sometimes referred to as the "withdrawal letter". On 1 July 2007 the applicant asked the tribunal to rescind its order for costs on that basis. Three things then happened. First, the applicants complained about the conduct of HHJ Gilbart QC. Secondly, the Lands Tribunal advised the applicants that the only way to challenge the order was by way of judicial review. They wrote a letter to that effect (page 596 of the bundle). Third, when the matter came on before HHJ Gilbart again (on 13 September 2007) he dismissed the applicants' application to rescind the order of 10 April 2007. He appears to have done so on the basis that was an order as to timing and that he would have made the order in any event.
6. An application for judicial review of the decision of HHJ Gilbart was made. Underhill J refused that application on paper, but it was granted by Holman J so that a proper consideration could be given to whether there was power to rescind the order. What Holman J said at paragraph 21 of his judgment was.

"I wish to stress that I have no material before me today on which to form any view at all as to the scope of the power of the tribunal. It would, however, be surprising if a tribunal was devoid of all and any power at least to adjust an order as to costs if it were later shown that the order had been made on a fundamentally mistaken basis.

22. Where I respectfully part from Mr Justice Underhill is in his view that the terms of the withdrawal letter were 'not a sufficient basis for any reconsideration of the order to be required'. It does seem to me at least arguable -- and for today's purposes the test is no higher than that – that, as Judge Gilbart plainly considered that the inability of Mr Cotterill [one of the experts] to inspect the property was 'a very powerful point' when he made the indemnity order for costs, and as Mr Cotterill appears later to have withdrawn the assertion which formed the evidential basis for that 'very powerful point', the question whether or not there should have been an order for indemnity costs was, at least, worthy of reconsideration.

23. As I have said, I cannot see that anywhere in the judgment of 13 September 2007 Judge Gilbart gave his express 'reconsideration' to an order for indemnity costs."

7. When the matter came on before Nicol J he addressed the issue on the basis that the question for decision was whether anything affected the order of costs that had been made on 10 April 2007. He said at paragraph 21 of his judgment:

"21. In deciding whether the decision of 10th April is infected by an error of law I must consider the evidence and material that was before the court on that occasion. New evidence cannot, at least not in circumstances such as the present, show that the original decision was wrong in law. One cannot show that a decision is wrong in law because, for instance, it failed to take account of evidence that was not available to the decision maker at the time of the decision in question. In my judgment it is not possible to establish that Judge Gilbart's decision of 10th April 2007 was wrong in law by reference to evidence that has been produced subsequently, and what I refer to in particular is the joint letter. What I think the claimants really want is an appeal on the facts; an appeal, in addition, at which new evidence could be received and at which they could ask for the decision that costs be awarded against them should be rescinded in the light of the new evidence. However, the statutory system in which the Lands Tribunal operates does not provide that kind of remedy. I say all of this without expressing a view one way or the other as to whether the joint letter would have been crucial evidence absent a good deal of further investigation as to how it came to be written and why Mr. Cotterill had made the statements he did earlier in the year."

8. The application has been advanced at some length by Dr Riseborough, and I hope I do not do it injustice by saying that it contains three elements, one pointing out errors in the judge's judgment which had an effect upon his conclusion; secondly, that there was bias and impropriety on behalf of all of those who had dealt with the matter to date; thirdly, that the Administrative Courts and Tribunal staff have not dealt with the matter as they should have done because they have kept certain documents away from the applicants.
9. As I indicated before I heard the oral submission, and as I reiterate now, I am not presently persuaded that in respect of any of those grounds there is any real prospect this court would take a different view to that which was taken by Nicol J. I should add that there is no evidence at all of any bias on the part of Nicol J, let alone Sir Richard Buxton, who gave lengthy reasons for refusing permission in a way that is done in this court.
10. However, despite that view of the grounds before me, it does seem to me that there may be an arguable point as to whether Nicol J considered the issue that was raised on judicial review as it may be arguable that the question posed in the judicial review was wider than that addressed at paragraph 21 of Nicol J's judgment.. I indicated this at the outset of the hearing and said that I was prepared to give the applicants one month from the date they received the transcript of this judgment so that they can take legal advice from someone who is familiar with administrative law in relation to the scope of the judgment of Nicol J and whether he dealt with the question as posed by Holman J.
11. It may be that even if it is arguable that Nicol J did not deal with the whole scope of the question posed at the judicial review -- and I have not made my mind up on that -- there would be no prospect of success in this court in any event; firstly, because there is no power in the tribunal to correct an order for costs made; secondly, because on the facts the letter subsequently sent by the applicants and one of the experts on 29 May 2007 might not in any event have provided grounds for changing the order. However, it does seem to me that these points, which I have enumerated so that a copy of this judgment can be given to a lawyer, ought to be explored; that any further argument on it should be reduced to writing, and I can consider whether permission to appeal should be granted. I therefore adjourn the application on those terms and I will deal with the reference to me on paper without any further hearing.

Order: Application adjourned