England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH IVISION
THE ADMINISTRATIVE COURT

		Court 7 St Dunstan's House Fetter Lane London WC2
		Tuesday, 18th June 2002

Tuesday, 18th June 2002

1. MR JUSTICE FORBES: This is an application by the claimant, Mr AR Massingham, under section 288 of the Town and Country Planning Act 1990 whereby he seeks to quash the decision of the Secretary of State, taken by his duly appointed Inspector, to dismiss an appeal against the failure by the local planning authority, the Havant Borough Council, to determine the claimant's application for a lawful development certificate. It is convenient to refer at this stage to the terms of section 191 of the 1990 Act, which deal with a certificate of lawfulness of existing use or development. So far as material, that section provides as follows:

"191(1) If any person wishes to ascertain whether --

(a) any existing use of buildings or other land is lawful;

(b) any operations which have been carried out in, on, over or under land are lawful; or

(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.

(2) For the purposes of this Act uses and operations are lawful at any time if --

(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.

(3) For the purposes of this Act any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if --

(a) the time for taking enforcement action in respect of the failure has then expired; and

(b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force.

(4) If on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use operations or other matter described in the application or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect and in any other case they shall refuse the application".

2. It is to be noted that the terms of section 191(4) are mandatory.
3. Having regard to the reference in section 191(2) and (3) to the expiry of the time for enforcement action, it is necessary to refer to the terms of section 171B of the 1990 Act, which provides for the necessary time limits. So far as material, that section is as follows.

"(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.

(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.

(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach".

4. It can be seen from the terms of section 171B(3) that, where the breach of planning control alleged is a failure to comply with a condition attached to a planning consent, the relevant time limit for enforcement action is one of ten years calculated from the date of the breach of condition.
5. The background facts of this matter are set out in paragraph 4 of the Inspector's decision letter, dated 9th January 2002, which is in the following terms:

"Background

4. Planning permission was granted on 4th December 1981 for the continued siting of three caravans at 43 Bosmere Road. Condition 2 of that permission states that the caravans shall not be occupied except for the purposes of human habitation and between 1st March and 31st October in any year. In 1994 the site was acquired by Mr Massingham's daughter in law and another and subdivided into two plots, 43A and 43B that now exist. Mr Massingham said that he moved a mobile home onto 43B in September 1995. He told me that he used it as a second home".

6. The Council failed to determine Mr Massingham's application for a certificate of lawful development within the statutory period. Mr Massingham's appeal was heard on 1st December 2001. It was an appeal against the deemed refusal of the local planning authority, brought pursuant to the provisions of section 195 of the 1990 Act.
7. At paragraphs 5 and 6 of his decision letter, the Inspector recorded the claimant's case under the Human Rights Act. In particular, the Inspector set out the claimant's assertion that his human rights under Articles 8 and 14 and Article 1 of Protocol 1 of the European Convention of Human Rights had been interfered with unlawfully.
8. At paragraph 7, the Inspector considered the effect of condition 2 of the planning permission, and I will come to the way in which the Inspector dealt with that matter very shortly. However, it is convenient at this stage to indicate that, at the forefront of the claimant's submissions before me, was his contention that condition 2 was invalid, that any failure to comply with it did not give rise to any breach of planning control and therefore, as I understand it, it did not present any bar to the grant of a certificate of lawful development.
9. The claimant based his submissions as to the invalidity of condition 2 on a number of grounds: first, that the condition referred to the caravan, rather than to the caravan site; second, that the latter part of the wording of the condition was insufficiently precise and was ambiguous; third, that the condition only applied to the caravan site or sites and did not apply to other forms of building development and that this was discriminatory and an infringement of the claimant's Articles 8, 14 and First Protocol rights.
10. These arguments were substantially put to the Inspector in the course of the inquiry, although not in the same order as they were put to me. However, it is convenient, before dealing with the Inspector's conclusions, to identify the second main ground of challenge in these proceedings which is that if, contrary to the claimant's primary contention, condition 2 is a valid condition, then the relevant time limits for enforcement action under section 171B had expired. Central to that particular submission is the claimant's assertion that placing the caravan on site was a form of operational development, as opposed to a change of use, and/or if it was a change of use, it was a change of use to use as a dwellinghouse, as opposed to a temporary caravan; in either or both cases, the point being that the relevant time limit for enforcement action would be four years.
11. Having summarised as best I can the claimant's submissions with regard to the grounds of challenge to the decision made by the Inspector, I turn now to quote the relevant parts of the decision letter. It is convenient to quote them in the order in which they appear in the decision letter, before moving on to refer briefly to the submissions made on behalf of the Secretary of State by Mr Litton. I therefore quote from paragraph 5 of the decision letter, as follows:

"Resume Human Rights Act 1998

5. Mr Massingham relied heavily on the Human Rights Act in making his appeal. He referred to section 3(1) of the 1998 Act which states that 'so far as is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights'. He also referred to Section 6(1) which states that it is unlawful to act in a way which is incompatible with a Convention right.

6. He questioned whether the 1990 Act could continue to be interpreted in accordance with case law based on the judgments made before 2nd October 2000 but said that he raised that only in the context of this case and sought no wider application. In particular he suggested that an interpretation of planning law in respect of caravans based on existing judgments had the result of making him a victim whose Convention rights had been violated under Articles 14 and 8 and Article 1 of Protocol 1 of the 1998 Act. He was being discriminated against as a caravan owner because he was being treated differently to those who owned permanent dwellings. He referred specifically to the seasonal condition that was attached to the planning permission relating to the site and said that where caravans had been replaced by permanent dwellings in the Eastoke area the condition had not been applied.

7. The condition means that Mr Massingham, like many other caravan owners in this area, cannot use his second home in a way that he would ideally wish. However, I do not accept that if this appeal were dismissed he would suffer discrimination in comparison with the owners of permanent dwellings in the area. When the condition was applied to the permission for siting caravans in 1981 the main policy objective was to retain holiday accommodation. The Inspector in the earlier appeal found a clear planning purpose for the condition and more recently, the Environment Agency have also recommended that it should be applied to permissions for caravans because of problems of flooding in the winter months in Eastoke. Mr Massingham accepted that flooding was proper justification for its imposition. Unlike the permanent dwellings in the area, 23B Bosmere Road is a small site within a large area of holiday caravans. I think there is objective and reasonable justification for the difference in treatment.

8. It is also important to recognise that the refusal of a lawful development certificate would in itself involve no sanction against Mr Massingham. I think that it is right for the Council to point out that section 191 establishes whether a local planning authority has power under planning legislation to regulate, in the public interest, an individual's use and enjoyment of his land. Mr Massingham would have the opportunity to assert his Convention rights if the Council should decide to use its discretionary power and take enforcement action. I do not consider that Mr Massingham's rights under Article 14 taken with Article 8 of the Convention are violated in this appeal.

The continuation of the use for siting three caravans without compliance with condition

9. The Council pointed to the precise and narrow meaning of section 191(3) which sets out the circumstances in which any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful. Mr Massingham acknowledged that, in this case, he had to show that the failure to comply with the condition had taken place over ten years before the application was made. He also acknowledged that he could not provide evidence of that. In fact he had no knowledge of the site before 1995. The evidence was that, apart from one occasion when he used the property, it has been used in accordance the permission.

10. He therefore attempted to make his case on the ground that the condition was invalid because it was imprecise. He suggested that there was an ambiguity about the use of the site between 31st October and 1st March. I note that the permission is for the siting of three caravans and not a continuous residential use and I do not think that there is any such ambiguity. The condition was not challenged when first imposed in 1981, nor in an appeal that Mr Massingham made in 1998 against the Council's refusal to grant permission for the continuation of the use without complying with it. In my view, it is valid on its face and clearly enforceable.

11. I have concluded that the condition is lawful and that lawful use of the site without compliance with condition 2 has not been demonstrated.

The material change of use to/construction of a dwellinghouse

12. As an alternative, Mr Massingham suggested that when he moved his mobile home to the site there was both a material change of use from a caravan site to that of a single dwellinghouse and that there had been operations resulting in the construction of a dwellinghouse. This would bring it outside the scope of the 1981 permission but there was no evidence for either.

13. Although he made no point about the subdivision of the site in 1994, the Council took the view that it was not contrary to the 1981 permission. I saw that the result of the subdivision is that the site is now occupied by two large rather than what must have been three smaller caravans. I think that the Council are right to say that the present caravans were brought onto the site under the authority of the 1981 permission and I note that there was no suggestion otherwise in the 1998 appeal.

14. Part of Mr Massingham's case was based upon a contention that because section 29(1) of the Caravan Sites and Control of Development Act 1990 defined a caravan as a 'structure' it must be a building for the purposes of section 336(1) of the 1990 Act. He accepted that this proposition had been rejected in the judgment in the case of Measor v Secretary of State and another [1998] 4PLR 93, but continued to assert that the Human Rights Act meant that the opposite view should be taken. I have dealt with that above.

15. The judgment in the Measor case restated the approach to the definition of a building for the purposes of development control which had been well settled in previous cases including Barvis Limited v Secretary of State [1971] to which Mr Massingham referred. In acknowledging that it would be wrong to say that a mobile home could never be a building, the court accepted that each case must be looked at on its merits. In this case, I am in no doubt that the mobile home fails the tests of permanence and attachment established by the courts.

16. Mr Massingham did not suggest that the mobile home was constructed on the site but described how he moved it to the site in one piece and had to encroach upon the enjoining site in order to manoeuvre it. On the question of permanence I saw that there had been some works to alter the concrete slabs on which the previous caravans had stood to form one larger area. However, there was no claim that the mobile was attached to that slab in any way. In fact one corner is still supported by a jack and the other three corners are supported on loose columns of concrete blocks on pieces of wood. The wheels remain although the axles are supported on blocks. Mr Massingham pointed out that because of the possibility of flooding, the mobile home has been raised higher than is necessary to simply get it off its wheels. I do not see that that is an indication of either permanence or attachment. It has been held by the courts that the connection to mains services is not material in determining whether a caravan is a building and I saw nothing on this site which would suggest that I should take a different view.

Conclusion

17. For the reasons given above and having regard to all other matters raised, I am satisfied that the Council's deemed refusal to grant a LDC in respect of use of 43B Bosmere Road, Eastoke without complying with condition 2 of planning permission 18061/4 and the change of use to/construction of a single dwellinghouse was well founded and I shall exercise accordingly the powers transferred to me in section 195(3) of the Town and Country Planning Act 1990, as amended by the Planning and Compensation Act 1991".

12. The Inspector thereafter proceeded to dismiss the claimant's appeal.
13. On behalf of the Secretary of State, Mr Litton submitted that the Inspector had not fallen into error in any of the ways suggested by the claimant in these proceedings. So far as concerns the assertion that condition 2 was invalid by reason of the use of the word "caravan", as opposed to "caravan site" and/or because of lack of precision of language or other ambiguity, Mr Litton pointed to the way in which the Inspector dealt with this matter at paragraphs 9 and 10 of the decision letter (see above). He submitted that there was no basis upon which the Inspector's reasons could be impugned or criticised, whether for the reasons advanced by Mr Massingham or any other reason. I agree with Mr Litton's submissions. As it seems to me, the Inspector not only had a clear understanding of the way in which the claimant put his case, but he dealt with it and dealt with it in a way that is plainly correct. There is no substance in this part of the grounds of challenge to the Inspector's reasons.
14. So far as concerns the human rights challenge and the suggested resulting invalidity of the condition, Mr Litton submitted that Articles 8, 14 and Article 1 of the First Protocol were not engaged, because the issue of a certificate of lawful development neither creates nor removes rights. The certificate, if granted, is declaratory only of certain existing rights of the party in whose favour it is made. By a parity of reasoning, to refuse to issue a certificate of lawful development does not create or remove any such rights. It is merely a refusal to grant the declaration sought.
15. I agree with those submissions and it is plain from the terms of paragraph 8 of the decision letter that the Inspector was of a similar view. However, the Inspector wisely went on to consider whether there was any arguable basis upon which it could be said that there had been an infringement of any of the relevant rights upon which the Mr Massingham relied. On the assumed basis that those Convention rights were engaged, the Inspector dealt with the suggested infringement in paragraphs 5 to 8 of the decision letter.
16. At paragraph 7, the Inspector expressly made findings which supported his conclusion that there had been and would be no infringement of the relevant rights in any event.
17. Again, I agree with Mr Litton that the Inspector's reasoning is unimpeachable. Accordingly, this further basis of challenge to the validity of condition 2 and to the Inspector's reasons for making the findings that he did is unsustainable and must therefore fail.
18. So far as concerns the second main argument advanced by the claimant in these proceedings, namely that, for the reasons I have already identified, the appropriate time limit for enforcement action in this case is one of four years, the Inspector dealt with this particular part of the case in paragraphs 9 to 16 of the decision letter (see above).
19. I agree with Mr Litton's submission that the Inspector's reasoning is without fault. I can see no basis upon which it can be said that the Inspector fell into error when reaching his conclusions to the effect that what had happened on the site constituted neither operational development nor development consisting of a change of use from a caravan to a permanent dwellinghouse. An important part of the Inspector's decision in this regard was based on the authority of Measor v Secretary of State [1998] and it is helpful to refer to part of the judgment of Mr Robin Purchas QC (sitting as a Deputy Judge of the High Court) in that case. At page 99, the judge said this:

"Decision

In my judgment, Mr Hobson is correct in his submissions. The approach to the definition of 'a building' for the purposes of development control is now well settled. It should be considered as a matter of fact and degree in the light of the factors identified by the Court of Appeal in Elitestone and helpfully summarised at paragraph 55.10 of the Encyclopedia of Planning. Generally, a mobile caravan would not satisfy that definition, having regard to factors of permanence and attachment.

On the findings of fact of the Inspector in the present case, there were ample grounds for his conclusion that they did not constitute buildings in the light of that guidance."

20. Just as in Measor, where there was ample evidence for the Inspector's conclusion that the caravans did not constitute a building, so too in this case there was ample evidence upon which the Inspector was entitled to conclude that the mobile home in question was not a building within the proper meaning of that expression for the purposes of development control. The relevant findings of fact are carefully set out in paragraph 16 of the decision letter (see above). It is clear to me that the Inspector was entitled to reach those conclusions on the evidence he heard. Furthermore, those conclusions were ones which fully supported his decision that the mobile home constituted neither a building nor did it constitute operational development for the purposes of section 171B.
21. Accordingly, I have come to the conclusion that Mr Litton is correct in his overall submission that the Inspector's decision in this case cannot be faulted. I have listened with great care to Mr Massingham's submissions, which he has put forward with considerable force and eloquence, but I am satisfied there is no substance in any of them. Accordingly, for those reasons, this application is dismissed.
22. MR LITTON: My Lord, following your judgment, I do have an application for the claimant to pay the Secretary of State's costs. I hope, my Lord, that you have been provided with a schedule?
23. MR JUSTICE FORBES: Yes, I have seen the schedule of costs.
24. Have you seen a schedule of costs, Mr Massingham?
25. We will have to take this, I think, in two stages. First, do you oppose the application for costs in principle?
26. MR MASSINGHAM: Can I just think? In principle?
27. MR JUSTICE FORBES: Let me tell you what the ordinary principle is, and it is the ordinary principle.
28. MR MASSINGHAM: If you could explain?
29. MR JUSTICE FORBES: The losing party pays the successful party's costs. That applies to these proceedings, as it applies generally to all forms of civil proceedings. It is not an absolute rule, but for a judge to depart from the general rule, there has to be a good reason. If you have a good reason, now is the time to tell me?
30. MR MASSINGHAM: Thank you for your judgment, my Lord. I consider that I made a proper case. It was not a vexatious or frivolous case.
31. MR JUSTICE FORBES: No, I accept that.
32. MR MASSINGHAM: I do believe that I have made the case just under the straight definition of the relevant provisions. I did not expect to lose on every single point. I expected at least to win on one.
33. MR JUSTICE FORBES: I am sure you did. Otherwise, you would not have come, I am quite sure.
34. MR MASSINGHAM: Some of them were very sort of -- can I just say -- for your judgment. I had hoped that just the building one would have carried the day without any sort of reference to anything else.
35. I feel that it would be unfair to award costs against me if you considered that I had made a frivolous and vexatious case (sic).
36. MR JUSTICE FORBES: The general rule does not turn on whether the losing party has acted unreasonably by bringing a frivolous case. There are other provisions in the law which deal with that sort of litigation and I readily accept and I am sure the Secretary of State readily accepts that yours is not a vexatious or frivolous claim.
37. But the general rule is that the losing party in a perfectly respectable, legitimate case ordinarily pays the costs of the successful party. There is no moral condemnation in this rule. It is merely that to the victor go the spoils, I suppose, including a right to recover some of the costs incurred in contesting the matter.
38. Do you understand?
39. MR MASSINGHAM: I understand.
40. MR JUSTICE FORBES: My making an order of costs against you does not involve any condemnation of you.
41. MR MASSINGHAM: I accept that, sir.
42. What it may mean in principle is that people like myself would be precluded from actually coming before a judge like yourself to actually determine sort of what would be considered very serious matters since the Human Rights Act came into force.
43. I would never dispute that before the Human Rights Act came into force that there was there was any -- that there was any case at all. But I still believe that if you award costs against me, as a matter of principle it would tend to preclude -- how shall I say it -- poor people from actually ever challenging the Secretary of State.
44. MR JUSTICE FORBES: I think we all accept that it does act as a disincentive, but it is a risk that you have to assess and decide whether you are prepared to accept or not.
45. But I am constrained by the law. The law requires me to exercise my discretion on matters relating to costs, in accordance with the appropriate principles. As I have said to you, it is the ordinary rule that the losing party pays the costs of the successful party, although that is not an absolute rule. However, a judge should not depart from that rule unless there is a good reason for doing so.
46. I really cannot be more helpful than that.
47. Your point is that it was a perfectly proper case to bring and you ought to be allowed to bring a case like that without having to run the risk of having to pay any costs. That is really what it comes to, is it not?
48. MR MASSINGHAM: As I say, if it had been a case which was I consider had no merit, I would never have pursued it.
49. MR JUSTICE FORBES: Of course. I accept that.
50. MR MASSINGHAM: In absolutely absolute direct terms, some of the things were totally for your judgment, whether the condition was valid or invalid. The operational development was always a sort of -- also another one for your decision.
51. But I considered that when I just read the definition of "a building", because caravans were not specifically included or included in not being a building, if you like, the key stone to everything was the fact that within the definition of the word "building", without any reference to anything else, it does not exclude a caravan.
52. MR JUSTICE FORBES: I understand. Of course, that was all dealt with in Measor and has been dealt with before.
53. MR MASSINGHAM: I accepted that.
54. MR JUSTICE FORBES: Your point is that things have moved on since.
55. MR MASSINGHAM: Really and truly, the word "building" should have just been considered as it stood, without reference to anything else, except some decisions since 2nd October 2000.
56. That is all I could rely on, simply you actually just reading the words in that decision, without any reference to Measor or anything else, which had not even come into force before the Human Rights Act has even received royal assent.
57. MR JUSTICE FORBES: Right. I think I understand the in which way you put the matter, but nothing you have said so far would justify me in my view from departing from the ordinary principle that you should be ordered to pay the Secretary of State's costs, you having brought the case and your case having been dismissed for the reasons given in my quite lengthy judgment.
58. Is there anything more you want to say on that aspect of the matter?
59. MR MASSINGHAM: On that aspect, I must accept your judgment, my Lord.
60. MR JUSTICE FORBES: Right. The next stage is whether I should order that you pay costs in a sum of money which I will summarily assess today with the help and benefit of the statement of costs which the treasury solicitor has provided, and a copy of which has been sent to you.
61. Do you have that?
62. MR MASSINGHAM: My Lord, yes.
63. MR JUSTICE FORBES: There are two stages in this particular part of the process: first, whether you object in principle to a summary assessment or whether you would wish to have the costs made the subject of a detailed assessment, which means it would go off to another day and the bills would be looked at by a costs judge, who would allow what he considered to be right, but that would involve further costs.
64. Or, if you accept the principle of a summary assessment, then we can have a consideration of the statement of costs and see whether any part of those costs should not be included or should be reduced in some way or other.
65. MR MASSINGHAM: I accept that your summary judgment is probably the most satisfactory.
66. MR JUSTICE FORBES: All right. In that case, we go forward then to the last stage, which is therefore the summary assessment itself. Have you had a chance to consider the various items?
(Pause).
67. You will see that they are quite carefully identified. If you turn to the first page, you will see that the first block of costs, the first piece of information you are told is the fee earner for the treasury solicitor. You can see the name?
68. MR MASSINGHAM: Yes.
69. MR JUSTICE FORBES: That person's seniority and the hourly rate which is claimed for -- I think it is her -- is it her?
70. MR LITTON: It is, my Lord, yes.
71. MR JUSTICE FORBES: Thank you -- for her various actions.
72. Now, the hourly rate claimed there for a person of that seniority is not an unusual one, but is there anything you want to say about the hourly rate? Does that seem excessive to you?
73. MR MASSINGHAM: I have not the faintest idea, my Lord.
74. MR JUSTICE FORBES: All I can say to you is that my experience is that it is not.
75. MR MASSINGHAM: I will accept your guidance.
76. MR JUSTICE FORBES: In a sense, I am a little hesitant about saying that, because it rather looks as if I am not giving much scope to you to make representations, but may I ask you, does it strike you as in any way outrageous?
77. MR MASSINGHAM: What, the hourly rate?
78. MR JUSTICE FORBES: Yes -- bearing in mind this is quite a senior solicitor working in central London?
79. MR MASSINGHAM: I presume the actual hours --
80. MR JUSTICE FORBES: That is the next point. The fact that Miss McNally may have spent X hours on a particular activity does not mean to say that that is a reasonable number of hours, but we are looking at the hourly rate at the moment.
81. MR MASSINGHAM: Obviously, it does seem outrageous to me, but that is just my personal --
82. MR JUSTICE FORBES: It does?
83. MR MASSINGHAM: Yes.
84. MR JUSTICE FORBES: Right. You query the rate. I will bear that in mind because I will hear what Mr Litton has to say about it in just a moment.
85. Then let us look at the hours. Those split up into a number of different activities, and in these matters I can perhaps be a little bit more informative or helpful than with regards to the hourly rate.
86. The first one is that she spent one and a half house getting instructions and generally dealing with the Secretary of State, with the department -- one and a half hours dealing with the department to get into a position to deal with your claim.
87. I have to say it does not seem to me to be excessive. Do you argue otherwise?
88. MR MASSINGHAM: I presume I would say that was probably fair enough, sir.
89. MR JUSTICE FORBES: Yes. Then of course she had to go and see Mr Litton and discuss the case with him, and all together she has spent just under two and a half hours doing that. Again, on a case such as this, there does not seem to me to be anything wrong with that.
90. Then she has to deal with you and that means dealing with your correspondence -- not necessarily coming to see you, but to deal with your correspondence and matters such as that and she has put that at one and a half hours. Again, it does not seem --
91. MR MASSINGHAM: It seems a bit excessive to me.
92. MR JUSTICE FORBES: Does it.
93. MR MASSINGHAM: Well, it was just a handful of very short letters that were exchanged.
94. MR JUSTICE FORBES: All right. We will put a query against that and I will see what Mr Litton has to say about that.
95. Then attendances on others. That would include dealing with the court office and matters such as that.
96. MR MASSINGHAM: I was not sure what that meant.
97. MR JUSTICE FORBES: Half an hour.
98. Then there is the work done back at the office, as it were, on the document and getting things typed and considering the documents, preparing instructions for the barrister, and so on. All together, four and a half hours.
99. MR MASSINGHAM: That does seem excessive, but I would have thought Mr Litton would have done most of that work, sir.
100. MR JUSTICE FORBES: What he does then has to be translated into appropriate paper to be sent to the court, and so forth. But we will hear what Mr Litton has to say about that. You query that amount?
101. MR MASSINGHAM: Possibly, I was not certain if the Secretary of State civil servants actually prepared some of the documents. I am not quite sure how it works.
102. MR JUSTICE FORBES: We will put a query against that.
103. Attendance at hearing. That is coming here today. She is claiming two and a half hours for that. That is plainly right, is it not?
104. MR MASSINGHAM: Yes.
105. MR JUSTICE FORBES: A good estimate.
106. MR MASSINGHAM: Is that the actual time today -- not actually waiting, but actually in the court?
107. MR JUSTICE FORBES: No. That is attendance at the hearing. She has been here for two hours on the actual hearing itself. You have to allow her a certain amount of waiting time, as it were, and I would be very surprised if she was not here by 12.30.
108. Then there is the travel time and a certain amount of waiting time, for which she has given just over half an hour, and that is it, so far as she is concerned. Do you follow?
109. MR MASSINGHAM: Yes.
110. MR JUSTICE FORBES: Then you know who the barrister is. It is Mr Litton. You know how long he has been a barrister, which is since 1989, which is 12 and a bit years. First of all, he has a fee for advice and in conference. He gets paid for that and for preparing various documents, including the skeleton argument, and he gets a fee for being here today. Do you query any of those matters?
111. MR MASSINGHAM: Obviously, his fee for the hearing, I am not sure, is it that double accounting, the fee for the documents, when it has already been prepared?
112. MR JUSTICE FORBES: You have Miss McNally's work on documents. Then you have Mr Litton's work, in which he gave advice in conference, he prepared an advice for the Secretary of State and he will have done things such as preparing the skeleton argument. All together, he is to be paid £600 for that work.
113. Again, it is a matter for you, and if you challenge it, I will get Mr Litton to expand a little, but I would have to say that that is not an unreasonable amount of money.
114. MR MASSINGHAM: I am not suggesting -- I was just wondering whether it was double accounting. That was all.
115. MR JUSTICE FORBES: Nor indeed is fee.
116. MR MASSINGHAM: No, his fee.
117. MR JUSTICE FORBES: So what it really comes to then is that you have raised queries as to the hourly rate, to the amount of time spent on attendances on opponents, and to the amount of time spent working on documents, all of those in respect of Miss McNally.
118. Let us see what Mr Litton has to say about those matters?
119. MR LITTON: My Lord, in terms of the hourly rate, in a sense, my Lord, I suspect you are in a better position to judge this than I am, but certainly for a senior solicitor in central London, where there is a private --
120. MR JUSTICE FORBES: She is a grade 6 team leader.
121. MR LITTON: Grade 6 team leader.
122. MR JUSTICE FORBES: Tell me what that means? She is sitting right behind you.
123. MR LITTON: She is responsible, my Lord, for a team I think effectively of 18 fee earners, plus support staff, within the treasury solicitor's office.
124. MR JUSTICE FORBES: Right, and the year in which she was admitted? I am sorry to ask for these details.
125. MR LITTON: 1986, my Lord. So a solicitor for 16 years.
126. MR JUSTICE FORBES: How many in the team?
127. MR LITTON: Effectively, 18 fee earners. I am sorry, 18 in total, so including fee earners and support staff. So a reasonably large team.
128. My Lord, in a sense by comparison with solicitors of her seniority and her responsibility in a private firm, I would hazard a guess probably they would be charging out at not less than £250 an hour.
129. MR JUSTICE FORBES: Yes.
130. MR LITTON: So it is at least £100 less than that per hour, so I would suggest that £142.50 is not by any stretch of the imagination an excessive rate.
131. MR JUSTICE FORBES: What about the attendances on opponents? The opponents in this case of course was the litigant in person.
132. MR LITTON:It is, my Lord. Certainly, there have been at least seven letters to Mr Massingham responding to letters that he has sent, et cetera, including letters chasing him up in relation to bundles, because it was suggested that he would in due course be supplying a paginated copy of all pages submitted, so we were obviously anxious to ascertain -- that was back in 26th March this year -- we were anxious to chase him if he was going to --
133. MR JUSTICE FORBES: Apart from letters, is there any other specific activity?
134. MR LITTON: My Lord, I think it is essentially letters.
135. MR JUSTICE FORBES: I rather thought it was, given the number of hours. Yes, very well.
136. MR LITTON: My Lord, then work done on documents. My Lord, I should say that does include, although there is a separate allowance for attendances on client, that does not include the usual minute of advice that the treasury solicitors prepare for the department client, and therefore that is included in the 4.5 hours, together with obviously the ordinary work that might be done and was done on the documents relevant to the case.
137. MR JUSTICE FORBES: Very well, thank you.
138. MR LITTON: Then --
139. MR JUSTICE FORBES: I think that is it, really.
140. MR LITTON: It is, my Lord. I hope you do not want me to expand upon the £600 too much?
141. MR JUSTICE FORBES: Mr Massingham, is there anything more you want to say about those three matters, or indeed any other matters as regards the statement of costs?
142. MR MASSINGHAM: I will just leave it to your summary judgment, my Lord.
143. I would once again ask if you could, you know, discharge the costs against me, but ...
144. MR JUSTICE FORBES: Thank you.
145. I am satisfied that it is an appropriate case in which to make an order for costs and that it is appropriate for me to assess those costs summarily. I have been through the treasury solicitor's statement of costs with care and I am satisfied that the number of hours spent and the hourly rate at which those hours are costed are in each respect reasonable.
146. So far as the hourly rate is concerned, it is stated to be £142.50. That is for a grade 6 team leader, who is a senior solicitor of 16 years' experience, with a team of 18 who are responsible to her. In my view, an hourly rate of £142.50 is eminently reasonable and considerably less than would be charged by a central London solicitor in private practice where that solicitor was of equivalent seniority and responsibility to Miss McNally.
147. So far as the number of hours spent by Miss McNally in respect of attendances on opponents and work done on the documents, as it seems to me, those hours are reasonable, and I cannot see any proper basis upon which it would be appropriate to disallow any of them.
148. Those were the only matters in which respect of which queries were raised by Mr Massingham and I can detect no other possible area of concern in the statement of costs. I am bound to say that the overall total is in my experience a very modest one for hearings of this type, but then it is also my experience that that is invariably the case where the treasury solicitor is involved.
149. So, in the light of all those considerations, I have come to the conclusion that the appropriate order for costs is that they be summarily assessed in the sum of £3,338.