England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		1 July 2003

1. MR JUSTICE SULLIVAN: This is an application for permission to withdraw an application for judicial review. There is no doubt that permission to withdraw the application should be granted. The only question is whether or not in doing so the court should order the claimants to pay the defendant's costs of resisting the application.
2. By way of very brief background, the application for permission to apply for judicial review challenged certain orders proposed to be made by the defendant, relating to footpaths and/or bridleways, and further challenged the response of the defendant to an order sought by the claimants. The application for permission to apply for judicial review was lodged on 4th March, but interim relief was sought to prevent the defendant from, in brief, publicising the proposals to make the orders. The matter appears to have come before Hooper J on the papers, and on 9th April, he listed the matter for an oral hearing on 14th April. I have no doubt that he did so because he had noted that interim relief was being claimed. The relief sought in the claim form was:

"3. An injunction that pending the resolution of this application the Defendants be restrained from (a) making any orders or taking any steps in pursuance of Mr Smith's Decision in relation to the Defendants' Proposals [Mr Smith is the responsible Council officer], or (b) making any statement to any person to the effect that pursuant to the decision or any intended order proposed to be made by the Defendants the public have any lawful right to use the Red Land or the Yellow Land, as defined ... in ... the Claimants' Grounds of Challenge."

3. For reasons which have not been adequately explained before me, notwithstanding the fact that Hooper J had ordered on the papers that there should be an oral hearing on Monday, 14th April, it would appear that application was made ex parte to Rafferty J, and she was persuaded to grant interim injunctive relief with immediate effect, to expire at the conclusion of the hearing on 14th April. When I say no adequate explanation has been provided, I do not intend that as any criticism of Mr Harper QC, who today appears on behalf of the claimants. He has only very recently been instructed, and has done his very best to provide the court with the relevant background material. Any criticisms that I may make of the claim, I make it plain, do not reflect upon him.
4. He submits, on behalf of the claimant, that this is an exceptional case, where costs should not be awarded against the claimants, notwithstanding the fact that they seek the court's permission to withdraw the proceedings. What happened on 14th April was that the matter came in front of Hooper J, he refused an injunction, and ordered the claimants to pay the costs of that hearing.
5. The principal costs incurred by the Council were in the preparation of a lengthy acknowledgment of service. The acknowledgment of service was necessarily lengthy because the claim form had failed to provide the court with relevant background material. It is plain that there is a history of litigation and, indeed, a court order, which forms part of the relevant background to this matter. None of that background was drawn to the court's attention in the claim form. Nor did the claim form draw the court's attention to the fact that, at least so far as the orders proposed to be made by the Council were concerned, once those orders were made, there would be a statutory avenue of challenge to the Secretary of State. Thus, it would only be in most unusual circumstances that the court would think it appropriate to permit proceedings for judicial review to proceed in respect of those orders, there being an equally convenient alternative statutory remedy. As I say, there was no hint of this factual background, and no hint of the statutory background either, in the claim form. Moreover, the claim sought injunctive relief, seeking to prevent the Council from publicising the making of orders against which, once they were made, there would be a right of objection to the Secretary of State.
6. In all of these circumstances, I am indeed satisfied that this is an exceptional case, but it is the sort of exceptional case which demands that the claimants pay the defendant's costs. There was material non-disclosure in the claim form, and I am very disturbed by the fact that after Hooper J had ordered an oral hearing for 14th April, an application was then made to another judge for immediate relief ex parte.
7. The question remains as to what the quantum of the costs should be. I am in no doubt that they should be summarily assessed. There are two elements of costs. The first is the costs incurred by the defendant in preparing the acknowledgment of service. They total £4,486.25. Mr Harper fairly points out that that is a very large sum for the preparation of an acknowledgment of service. But equally, it is fair to point out that had the claimants discharged their duty of proper disclosure, much of the material in the acknowledgment of service need not have been produced by the defendant. Then there are the costs of today. It seems that the claimants sought an adjournment before Hooper J on 14th April, to enable them to consider their position in response to the acknowledgment of service. It is only very recently that they have conceded to the Council that the application must be withdrawn. Moreover, they have declined to meet the Council's costs in preparing the acknowledgment of service, contending, in a letter of 27th June, that costs have already been paid up to 14th April, and no substantial costs have been incurred since then. It is plain that that proposition is in error. Hooper J was concerned simply with the costs of the hearing before him, on 14th April, and not with the costs of preparing the acknowledgment of service. Thus it seems to me that in principle the Council must be entitled to costs under both heads, that is to say the preparation of the acknowledgment of service, and for the appearance today.
8. Doing the best I can, and acknowledging that there is force in Mr Harper's submission that the costs of preparing this particular acknowledgment of service do seem fairly high (I do not suggest that they were not incurred, but one has to adopt a proportionate approach to this matter), it seems to me that the proper order is as follows: that the costs of preparing an acknowledgment of service are to be summarily assessed at £3,500; the costs of Council's appearance today are to be summarily assessed at £750.
9. Thus the order of the court is that permission is granted to withdraw the application for permission to apply for judicial review. The claimants are to pay the defendant's costs. Those costs are to be summarily assessed in the total of £4,250.
10. Thank you, Mr Stephenson. Thank you, Mr Harper.