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
		3 December 2004

1. SIR MICHAEL HARRISON:

Introduction

2. This is an application under section an 88 of the Town and Country Planning Act 1990 to quash a decision of the first defendant, the First Secretary of State, dated 23rd December 2003, when he granted planning permission subject to conditions for the use of rock salt caverns within the Bostock No. 5 panel of the Winsford Rock Salt Mine (which is still an active mine) at Jack Lane, Bostock, Middlewich, for waste disposal purposes.
3. The claimant lives near the site. The second defendant, Cheshire County Council, who are the waste planning authority, did not appear at the hearing. The third defendant, Minosus Limited, is the applicant for planning permission and was represented by counsel at the hearing.
4. There is a history to this matter in that the Secretary of State called in the planning application for his own decision under section 77 of the 1990 Act. One of the matters about which he wished to be informed was the physical suitability of the site for the proposed development, having regard, inter alia, to the assessment of risk.
5. On 14th November 2001 a public inquiry was held which lasted for 14 days. The Inspector appointed to hold the inquiry was assisted by an assessor who advised him on matters relating to geology, hydrogeology and mine stability. The Environment Agency was made a Rule 6 party and called witnesses at the inquiry. Among the objectors who appeared at the inquiry were the Davenham and Moulton Parish Councils and an organisation known as Residents Against Mine Pollution (RAMP). In a report dated 12th April 2002 the Inspector recommended that planning permission should be granted subject to conditions. It will be necessary to refer to some parts of the Inspector's report.
6. On 26th July 2002 the Secretary of State granted conditional planning permission for the proposed development. However, the claimant successfully challenged that decision under section 288 of the 1990 Act and the decision was quashed by consent on 19th February 2003 on the ground that the Secretary of State had erred in incorporating into the conditions the entirety of the environmental assessment which had accompanied the planning application.
7. On 16th April 2003 the Secretary of State invited further representations on a number of matters, which included the types and volume of waste to be disposed of at the mine. Having considered the representations received, the Secretary of State concluded that the majority of the issues had been considered by the Inspector at the inquiry and that the majority of the representations re-emphasised the representations that had been made at the inquiry. He therefore decided that it was not necessary to reopen the inquiry and that it would be appropriate to redetermine the case by considering the further recommendations received alongside the Inspector's report and the evidence given at the inquiry.
8. In a decision letter dated 23th December 2003 the Secretary of State granted planning permission for the proposed development subject to alternative conditions which had been suggested by Minosus Limited. It will be necessary to refer to some parts of that decision letter which is the decision which the claimant seeks to quash in these proceedings.
9. The main issue in this case relates to the adequacy of the environmental statement, having regard to the requirements of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the EIA Regulations") and the interrelationship between those Regulations and the Pollution Prevention and Control (England and Wales) Regulations 2000 ("the PPC Regulations").

Statutory provisions

10. It may be helpful if I were to refer at this stage to the relevant statutory provisions before descending into the detail of the factual background of this case. The EIA Regulations gave effect to the Environmental Impact Assessment Directive 85/337/EC, as amended by Directive 97/337EEC. The PPC Regulations gave effect to the Integrated Pollution Prevention and Control Directive 96/61/EC. I was referred to those Directives, as well as to some other Directives, but there was no suggestion that the EIA Regulations and the PPC Regulations did not correctly transpose their parent Directive into domestic law, so I only propose to refer to the Regulations, although I bear in mind the provisions of the Directives when considering the purpose and meaning of the Regulations.

a) the EIA Regulations

11. Turning first to the EIA Regulations, an EIA development is defined as including a Schedule 1 development. Landfill of hazardous waste is included in paragraph 9 of Schedule 1 as a Schedule 1 development. The proposed development in this case involved landfill of hazardous waste and it was therefore an EIA development. An application for planning permission for such development is called an EIA application. Under Regulation 3(2) planning permission cannot be granted pursuant to such an application unless the environmental information has first been taken into consideration. Regulation 2 defines the "environmental information" as meaning:

"... the environmental statement, including any further information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development."

12. "Environmental statement" is defined as meaning a statement:

"(a)that includes such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but

(b) that includes at least the information referred to in Part II of Schedule 4."

13. Part II of Schedule 4 includes at paragraph 1, a description of the development; at paragraph 2, a description of the measures envisaged to avoid, reduce and, if possible, remedy significant adverse effects, and at paragraph 3:

"The data required to identify and assess the main effects which the development is likely to have on the environment."

14. The main thrust of the claimant's case is that the environmental statement in this case did not include the data required by paragraph 3 of Part II of Schedule 4 of the EIA Regulations in that it did not specify the types of waste to be deposited with sufficient particularity.

b) the PPC Regulations

15. I turn next to the PPC Regulations. The system of control under the Directive is known as the IPPC system of control, and the control under the Regulations is known as the PPC system of control. I only mention that because from time to time reference is made in the documents to the IPPC system of control when in fact it is referring to the PPC system of control under the Regulations. For present purposes it is sufficient to say that in a case of this kind the PPC Regulations require a permit to be obtained from the Environment Agency (regulation 9). Such a permit shall not be granted unless planning permission is in force in relation to the use of the land (regulation 10(4)(b)). When determining the conditions of a permit, the Environment Agency has to take into account that the installation has to be operated in such a way that all the appropriate preventative measures are taken against pollution through application of the best available techniques, and that no significant pollution is caused (regulation 11). Paragraph 1 of Part I of Schedule 4 sets out the information that has to be contained in the application for the permit. Paragraph 13 of Part II of Schedule 4 provides that any relevant information obtained or conclusion arrived at under Articles 5, 6 and 7 of the EIA Regulations shall be taken into consideration by the Environment Agency when determining the permit application.

The factual background

16. I turn next to the factual background. I have already referred briefly to the history of the determination of the planning application. It is necessary first of all to summarise the material that was before the Inspector and the Secretary of State, and then to summarise their respective findings and conclusions.

a) the environmental statement

17. The Inspector and the Secretary of State had before them the environmental statement that accompanied the planning application, together with the further information which had been requested by the Secretary of State under Regulation 19 of the EIA Regulations. Paragraph 2.4.1 of the environmental statement stated that Table 2.1 illustrated those types of wastes which would be, and would not be, received by Minosus Limited. It stated:

"As described in Table 2.1 wastes likely to be acceptable can broadly be described as being stable, solid, non-explosive, non deliquescent, non reactive on exposure to air, salt or moisture and packaged within a suitable container. Wastes which would not be acceptable in the mine can be classified as those which are radioactive, liquid, readily supportive of combustion, vapourising or fuming, odorous, biodegradable, chemically reactive and inadequately contained or packaged."

18. The document then set out Table 2.1 which was headed "Acceptable Wastes for Minosus Disposal". Under the subheading "Which Wastes would come to Minosus", the Table contained a "yes" column and a "no" column. Under the "yes" column, the table specified "Solid; Non-flammable; Non-explosive; Non-volatile; Non-deliquescent; Suitable packaged; and Non-reactive upon exposure to air, salt or moisture". Under the "no" column, the table specified "Radioactive; Liquid; Explosive or Flammable; Vapourising or Fuming; Biodegradable; Odorous; and Inadequately or not securely packaged". A very similar table was also included with the further information provided to the Secretary of State.
19. Chapter 13 of the environmental statement contained a qualitative risk assessment. That approach was justified on the basis of a technical assessment which set out ten matters which the Inspector described as baseline conditions, and which mostly related to characteristics of the mine. The seventh was that there was no route by which waste materials placed in the mine could return to the surface and come into contact with people or other living things, and the eighth was that the types of waste planned for disposal were dry, stable, not readily combustible, and typical of waste currently buried in surface landfills.
20. It was stated that the recommended level of risk assessment was based on a staged approach, drawing on expert judgment, historic mine information and validated data. The approach was supported by the results of numerical modelling conducted at Nottingham University and by "hard data" supplied from the data assessment, a footnote explaining that "hard data" was data derived from physical processes or tests that can be validated.
21. It was stated that the foundation of the risk assessment was the baseline geological and hydrogeological report of Professor Dunham at Nottingham University and the British Geological Survey. The risk assessment explained that it integrated into the basic understanding of the mine environment the known toxicology of the wastes, the long-term physical and chemical properties of the wastes over the duration of the operations, the potential geosphere pathways, both back into the mine or off site, the mine ventilation system to assess potential air pathways, and key receptor groups.
22. The risk assessment stated:

"In order to ensure that a balanced, integrated and both technically and scientific sound assessment was carried out, three waste types, considered to be of most concern in the environmental context that would be acceptable to Minosus, were selected. The selection of the 'most reactive' and 'most volatile' wastes took into account that reactive, volatile or flammable wastes would not be accepted at Winsford. Therefore the following selection was made from the list of potentially acceptable waste types in Table 13.1.

Table 13.1 presents a list of the range of waste types that Minosus expect to receive for disposal in the mine. The list in itself should however be regarded as indicative and not as definitive. Within the terms of the Waste Management Site Licence, the Minosus site Chemist would have complete jurisdiction regarding which specific wastes can be accepted and which cannot, following detailed analysis and examination of every customer enquiry."

23. Table 13.1 is headed "Indicative Waste Streams for Disposal at Winsford". It contains two pages of waste descriptions with a hazard ranking for each of them. The three waste types selected for risk assessment were firstly, fly-ash, which was described as "most representative" and which was given a medium hazard ranking in Table 13.1; secondly, soda, which was described as "most reactive" and which was given a low hazard ranking in Table 13.1; and thirdly, wax, which was described as "most volatile" and which, although under a description in Table 13.1 which an untutored eye would not pick up as being wax, was given a high hazard ranking.
24. The qualitative risk assessment then followed a standard methodology of dividing it into three components: source, being the waste itself; pathways, being all the routes by which the waste derivatives could reach key receptors; and receptors, identifying those receptors most vulnerable to potential contamination. Each of the selected waste types was subject to 11 different scenarios of disruptive events, such as flooding of the repository area following an ingress of mine water into the mine workings, or rupture of a container.
25. The assessment concluded that the levels of risk were considered to be generally low or negligible, although a number of potential health and safety issues were identified that would require mitigation.
26. I should also have mentioned that the PPC permit application included what was called a "waste acceptance decision tree", which was also before the Inspector and the Secretary of State, and which was a form of flow chart containing 11 criteria which could lead to the exclusion of a waste.

b) the inquiry

27. So much for a summary of the relevant material before the Inspector and the Secretary of State. The County Council as waste planning authority appeared at the inquiry. They considered that there was no proper ground on which planning permission should be refused. They concluded that there would be no realistic likelihood of underground or surface releases to air from the waste that could affect sensitive receptors.
28. The Environment Agency appeared at the inquiry. They had no objection in principle. They explained the various matters that they would be considering when determining the PPC permit application which had already been made and which was in the initial stages of being processed. They explained that they would be considering a detailed assessment of waste types, quantities and acceptance criteria. They told the Inspector, as recorded by him at paragraph 9.5 of his report:

"Any PPC permit would therefore be likely to exclude infectious waste; substances or preparations which may release toxic waste gases in contact with water, air or an acid; substances that may react with air, water or brine or are chemically unstable; substances and preparations capable by any means of yielding another harmful substance post disposal; substances and preparations that would release a gas or vapour under mine conditions; any waste that is not a solid, a powder or a viscous paste; sludges or wastes containing free liquid and any waste that exhibits flow characteristics similar to a liquid or a sludge; waste with an excessive water content; biodegradable wastes; deliquescent wastes; most wastes that would react with other permitted waste types."

29. In a subsequent representation dated 1st May 2003, following the quashing of the Secretary of State's decision, the Environment Agency expressed the view that the detailed control of the operation was better addressed through the PPC Regulations rather than the planning process.
30. The Vale Royal Borough Council appeared at the inquiry. They did not actively support or object to the proposed development. They had had a concern over the long-term safety implications of the underground storage of waste materials but they had commissioned consultants to undertake a detailed review of that aspect. The consultants had answered that concern to the Council's satisfaction and so they did not pursue that issue at the inquiry. Subsequently, however, when making further representations following the quashing of the Secretary of State's decision of 26th July 2002, the Borough Council, in a letter to the Secretary of State dated 30th April 2003, said that the Council still had concerns over all safety issues which needed to be addressed with knowledge of the quantity, nature and risk assessment of waste proposed to be stored. In a letter of 30th June 2003 to the Secretary of State, solicitors for Minosus Limited pointed out the contradiction of that stance from the stance taken by the Borough Council at the inquiry and noted the absence of any committee authority for the new stance.
31. As I said previously, both RAMP and the Parish Councils were objectors at the inquiry, as were Friends of the Earth. It was part of the Parish Councils' case that there should have been a quantitative risk assessment. The claimant did not appear at the inquiry although his solicitor had written letters to the Secretary of State on 12th May 2000 and on 4th June 2001, in both of which the point was made that the environmental statement only contained an indicative list of waste types.

c) the Inspector's report

32. I turn then to the Inspector's report which set out in some detail the parties' cases and the material relied upon. The Inspector confirmed that he had taken the environmental statement and the further information supplied into account, together with the proposed mitigation measures. He identified five main considerations, only two of which are relevant in this case. Firstly, mine stability and other geological and hydrogeological considerations. He summarised the assessor's report relating to those matters, including the assessor's overall conclusion that there were no reasonable circumstances relating to those factors which could place in doubt the successful implementation of the proposed development. Secondly, the physical suitability of the site in terms of, inter alia, risk assessment. The Inspector concluded on that subject in paragraphs 16.38 and 16.39 as follows:

"The land use consequences of the risks associated with the development relate to waste escaping from drums, bags or other containers in the Shaft No. 4 compound, or escaping from containers underground and contaminating air which is then vented to the atmosphere through Shafts Nos. 3 and 5. The risk assessment identified the significant scenarios which should be taken into account and, having regard to the operational and pollution control measures, classified all except four connected to fire as having a risk rating of negligible to low.

16.39 I do not dispute that a quantitative risk assessment may have produced different results, albeit expressed numerically, rather than descriptively. Nevertheless, I have no reason to dispute the general findings and note that the Environment Agency has no objection in principle to the scheme. Furthermore, I would estimate that the risks are less than the equivalent operations at surface landfills where such special waste is deposited now. Therefore, my conclusion on the risk assessment from the planning point of view is that there are no indications that the risks associated with the proposal would constitute a sound reason to refuse the planning application. Overall, I see no reason to doubt the physical suitability of the site for the development proposed."

33. In dealing with another main consideration, namely sustainability and environmental impact of the proposal as a whole, the Inspector dealt with the issue of dust. It is relevant to a condition relating to airborne particulates (condition (vii)(a)) imposed by the Secretary of State about which the claimant raises a separate issue. It is therefore necessary to quote the Inspector's conclusion on dust at paragraphs 16.44 as follows:

"So far as general dust in the mine is concerned, there are monitoring points at different locations underground and I consider that a potentially harmful reduction in air quality due to vehicular emissions, road levelling and the construction of safety mounds, would be detected before it was vented from the shafts. In any event, dust already occurs due to salt mining and there is no evidence to suggest that the proposed development would cause dust levels either inside or outside the mine to rise above the relevant air quality standards. I also consider that the length of time taken for air to pass through the ventilation system would normally be sufficient to allow for any toxic fumes from a fire or dust accident to be controlled, so that the external impact of any air contamination would be insignificant. In my view, the quality of air inside the mine would be the concern of agencies such as the Health and Safety Executive and the Environment Agency, rather than be covered by the Town and Country Planning Acts."

34. In giving his overall conclusion in paragraphs 16.63 and 16.65, the Inspector concluded that the proposal would avoid having an unacceptable impact on, inter alia, air quality, and that any increase in air pollution would not be sufficient to justify refusing the planning application.

d) the Secretary of State's decision

35. As mentioned previously, the Secretary of State's decision dated 26th July 2002 was quashed by consent following an application by the claimant. Following consideration of the further representations that were then made, the Secretary of State issued his decision on 23rd December 2003, granting planning permission subject to conditions. I turn then to that decision letter.
36. In paragraph 6 of his decision letter, the Secretary of State remarked that one of the main issues on which he had sought information, and on which representations were received, concerned the types and volume of waste to be disposed of at the mine. He said that he considered that the new conditions attached to his decision letter provided sufficient clarity on that matter.
37. Summarising his decision in paragraph 10, he agreed with his Inspector's conclusions and accepted his recommendation that planning permission be granted. Dealing with procedural matters in paragraph 11, he stated that he had taken the environmental statement and the further information provided under Regulation 19 into account, and that he was content that they complied with the Regulations and that sufficient information had been provided for him to assess the environmental impact of the application. He noted that Minosus Limited had applied to the Environment Agency for a permit under the PPC Regulations. In paragraph 19 he agreed with the assessor's and the Inspector's conclusions relating to mine stability, geological and hydrogeological considerations.
38. In paragraph 22 of the decision letter, the Secretary of State stated:

"He also agrees with the Inspector's conclusions on risk assessment in IR 16.37-16.39, and for the reasons given in those paragraphs, the Secretary of State agrees that there are no indications that the risks associated with the proposal would constitute a sound reason to refuse planning permission. Like the Inspector, the Secretary of State sees no reason to doubt the physical suitability of the site for the development proposed."

39. Finally, in paragraph 28 of the decision letter, under the heading "Best Practicable Environmental Option" (BPEO), the Secretary of State stated:

"The Secretary of State has taken into account that an indicative list of acceptable waste types for disposal at the mine is given in the Environmental Statement but that he does not have final and complete information about the precise nature and source of the waste to be disposed of at the mine. He considers that these are matters for the Environment Agency to consider as part of the IPPC considerations. The Secretary of State has noted that the component waste types and BPEO, inter alia, will be considered by the Environment Agency (IR 9.3 and 9.4) as part of the IPPC application (IR 16.54). However, he agrees with the Inspector that the conclusions reached by both the applicant in their BPEO assessment (as set out in the Environmental Statement) and the Council are valid and that, although the applicant's BPEO assessment will require additional information for an IPPC assessment, on the facts of this particular case it is sufficient for planning purposes (IR 7.16)."

40. The claimant particularly takes issue with the Secretary of State's conclusion in that paragraph in so far as it relates to the planning application.
41. The Secretary of State, having accepted his Inspector's recommendation, granted planning permission subject to a number of conditions, three of which were the subject of challenge by the claimant, one as a freestanding challenge and two as being parasitic on the claimant's main ground of challenge.
42. Before dealing with those conditions, it should be noted that condition (iii) defines the area where waste may be deposited, and conditions (iv) and (v) deal respectively with the volume of the void space to be used for the deposit of waste, and an annual limit on the tonnage of waste to be imported.
43. The condition which is the subject of the claimant's freestanding ground of challenge is condition (vii)(a) which states:

"Prior to the importation of any waste to the application site the following schemes (including a timescale for implementation) shall be submitted to the County Planning Authority and agreement obtained in writing:

(a) a scheme for the monitoring of airborne particulates within the Mine. The scheme shall include details of the sampling points, sampling regime and sampling frequency. The scheme shall require the retention at the site office of the recorded data which shall be available for inspection by the County Planning Authority during normal working hours and a copy of the records shall be forwarded to the County Planning Authority every three months during the operational life of the site."

44. The conditions which are parasitic on the claimant's main ground of challenge are conditions (xii) and (xiv). Condition (xii) is particularly important because it deals with waste types. It states as follows:

"The only waste types which shall be deposited within the Bostock No. 5 Panel shall be solid (including granular or powder), non-flammable, non-explosive, non-volatile, non-odorous, non-deliquescent, non-radioactive and non-reactive upon exposure to air, salt or moisture within the mine. All such wastes shall be drummed or bagged to provide containment. At no time shall radioactive, liquid, explosive or flammable, vaporising or fuming, biodegradable or odorous waste be deposited within Bostock No. 5 Panel of the mine."

45. Condition (xiv) states:

"The only waste which shall be transferred underground shall be waste which has been approved for disposal at the facility by the Site Chemist. No waste material transferred underground shall subsequently be removed from the Bostock No. 5 Panel except in an emergency or with the prior written agreement of the County Planning Authority."

46. That completes a summary of the factual background to this case, save to say that I am told that a PPC permit was subsequently issued by the Environment Agency in August 2004 which is now subject to a separate court challenge which is not before me.

Authorities

47. Before I summarise the submissions, I should first refer to the authorities relied on by the parties because the submissions made frequent reference to them. There were six relevant authorities. I deal with them in chronological order.
48. In Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1994] Env LR 37 the Court of Appeal was concerned with a planning permission granted for an incinerator. As incineration was then a prescribed process under the Environmental Act 1990, an authorisation was required under that Act, Her Majesty's Inspectorate of Pollution (HMIP) being the enforcing authority at that time. The planning Inspector recommended refusal of planning permission because he was concerned that the impact on air quality was not sufficiently defined. The Secretary of State disagreed because he was satisfied that, if planning permission were granted, that concern would be addressed by HMIP in the pollution control authorisation process.
49. The Court of Appeal noted the overlap between the two regimes of control and accepted that, if it had been clear that the discharges were bound to be unacceptable so that a refusal by HMIP of an authorisation would have been the only proper course, the Secretary of State should have refused planning permission, but that that was not the situation because at the end of the inquiry there was no clear evidence about the quality of the air in the vicinity of the site. In those circumstances, the court concluded that the issue was clearly within the competence and jurisdiction of the HMIP, and that the Secretary of State was justified in leaving that aspect to be dealt with by the HMIP.
50. The remaining five authorities follow in sequence: first, R v Rochdale Metropolitan Borough Council, ex parte Milne [2001] JPL 470, a decision of Sullivan J; second, R v Cornwall County Council, ex parte Hardy [2001] Env LR 473, a decision of my own; third, Smith v Secretary of State for the Environment, Transport and the Regions [2003] 2 P&CR 162, a decision of the Court of Appeal; fourth, R (on the application of Jones) v Mansfield District Council [2004] Env LR 391, also a decision of the Court of Appeal; and finally, R (on the application of Blewett) v Derbyshire County Council [2004] Env LR 569, another decision of Sullivan J.
51. The Milne case followed an earlier decision of Sullivan J in R v Rochdale Metropolitan Borough Council, ex parte Tew [1999] 3 PLR 74, when he had quashed a bare outline planning permission for a business park which was not tied to an illustrative master plan upon which the environmental information was based.
52. The Milne case involved an outline planning application for a business park which incorporated additional documents, including a master plan, to which the environmental statement related. One of the grounds of challenge was that there was a failure to comply with the requirements of the Assessment Regulations then in force, in that the description of the proposed development was not sufficient because design was a reserved matter.
53. In paragraph 106 of his judgment, Sullivan J held that it was for the local planning authority or the Secretary of State to decide whether the environmental information was adequate. He rejected a submission that it was for the court to decide that issue as a question of primary fact. It was also for the local planning authority or the Secretary of State to decide whether a Schedule 1 or Schedule 2 development would be likely to have significant effects on the environment, subject only to review on Wednesbury grounds. In paragraph 113, he made the point that the environmental statement did not have to describe every environmental effect, only the "main effects" or "likely significant effects", otherwise the assessment would be so voluminous that there would be a danger of losing the wood for the trees. Finally, in paragraph 128 Sullivan J stated:

"Any major development project will be subject to a number of detailed controls, not all of them included within the planning permission. Emissions to air, discharges into water, disposal of the waste produced by the project, will all be subject to controls under legislation dealing with environmental protection. In assessing the likely significant environmental effects of a project the authors of the environmental statement and the local planning authority are entitled to rely on the operation of those controls with a reasonable degree of competence on the part of the responsible authority: see, for example, the assumptions made in respect of construction impacts, above. The same approach should be adopted to the local planning authority's power to approve reserved matters. Mistakes may occur in any system of detailed controls, but one is identifying and mitigating the 'likely significant effects', not every conceivable effect, however minor or unlikely, of a major project."

54. In the Hardy case, I quashed a planning permission on the ground that it was wrong to leave over to conditions a survey of bats in a mine shaft because the result of the survey might have given rise to a significant adverse effect. In those circumstances, the local planning authority could not rationally conclude that there were no significant major conservation effects until they had the data from the survey.
55. In the Smith case, the Court of Appeal had to consider conditions in a planning permission for the extraction of stone at a quarry and the use of the void for the disposal of controlled waste. In that case, the claimant did not challenge the environmental statement. The challenge was to conditions, primarily on the basis that they appeared to leave over the matters to which the conditions referred for subsequent negotiation between the developer and the local planning authority without involving the public. As a matter of construction, the Court of Appeal decided that the conditions could not be construed so widely as to permit renegotiation of an element of the planning permission. Having considered the cases of Tew, Milne and Hardy, Waller LJ set out four principles which those cases established. In dealing with the fourth principle he stated at paragraph 28:

"Fourthly, (and here as it seems to me one reaches the most difficult area), it is certainly possibly consistent with the above principles to leave the final details of, for example, a landscaping scheme to be clarified either in the context of a reserved matter where outline planning consent has been granted, or by virtue of a condition where full planning consent is being given as in the instant case."

56. Subsequently, having quoted paragraph 128 of the judgment of Sullivan J in the Milne case which I have already quoted, Waller LJ stated at paragraph 33:

"In my view it is a further important principle that when consideration is being given to the impact on the environment in the context of a planning decision, it is permissible for the decision-maker to contemplate the likely decisions that others will take in relation to details where those others have the interests of the environment as one of their objectives. The decision-maker is not however entitled to leave the assessment of likely impact to a future occasion simply because he contemplates that the future decision-maker will act competently. Constraints must be placed on the Planning Permission within which future details can be worked out, and the decision-maker must form a view about the likely details and their impact on the environment."

57. Finally, so far as Waller LJ's judgment is concerned, he dealt with an issue relating to dust, odour and vermin in paragraph 51 as follows:

"This point was dealt with concisely by Mr Barrett. He pointed out that there were two aspects of the development, landfill and the extraction of minerals. So far as landfill was concerned that would be the subject of the IPPC regime. The extraction of minerals is not subject to that regime. There was thus a logical basis for leaving odour and vermin to the IPPC regime and making dust the subject of a condition. If and in so far as Mr Clayton was pursuing an argument that even though vermin and odour were the subject of the IPPC regime it was still incumbent on the inspector to impose a condition, it was not pursued with any vigour. Gateshead MBC v Secretary of State for the Environment 1994 1 PLR, CA is authority for the proposition that it is open to the planning authority to leave matters within an agency such as the IPPC to that statutory body. Once again the principle identified in para [33] above applies."

58. At paragraph 61 Sedley LJ agreed with that conclusion.
59. In the Jones case the planning authority had determined that an environmental impact assessment was not required. The Court of Appeal held that the question whether a project was likely to have a significant effect on the environment was one of degree, calling for the exercise of judgment by the planning authority, although the authority had to have sufficient information about the impact of the project to be able to make an informed judgment as to whether it was likely to have a significant effect on the environment (see Dyson LJ at paragraphs 38 and 39). Also, Carnwath LJ remarked at paragraph 58 that it needed to be borne in mind that the EIA process is intended to be an aid to efficient and inclusive decision-making in special cases, not an obstacle race.
60. I turn finally, so far as the authorities are concerned, to the Blewett case, which concerned the filling of a landfill site with waste, where it was claimed inter alia that the environmental statement accompanying the planning application did not include an assessment of the potential impact of the proposed landfill on ground water which, it was said, had impermissibly been left to be assessed after planning permission had been granted. Sullivan J dismissed the challenge, remarking at paragraph 41 that it was an example of the unduly legalistic approach to the requirements of Schedule 4 of the EIA Regulations being taken by a number of claimants for judicial review to try and prevent implementation of development proposals. He also remarked that the requirement for an EIA application was not intended to obstruct development but to ensure that developments that may affect the environment were made on the basis of full information, although the Regulations were not based on an unrealistic expectation that the environmental statement would always contain "the full information". The consultation process and publicity requirement could result in identification of any deficiencies so that the planning authority had as full a picture as possible. Sullivan J then said at paragraph 41:

"There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations (Tew was an example of such a case), but they are likely to be few and far between."

61. At paragraph 64 Sullivan J approved the leaving over of the assessment of the lining system of the cell design to the PPC authorisation process as falling squarely within the fourth principle enunciated by Waller LJ in the Smith case. In paragraphs 62 and 66 he noted that the Environment Agency had not objected and he concluded that, against that background, the planning authority was entitled to leave the remediation strategy to be dealt with by a condition.
62. Finally, in paragraph 68 Sullivan J said:

"I have dealt with it in some detail because it does illustrate a tendency on the part of claimants opposed to the grant of planning permission to focus upon deficiencies in environmental statements, as revealed by the consultation process prescribed by the Regulations, and to contend that because the document did not contain all the information required by Sch.4 it was therefore not an environmental statement and the local planning authority had no power to grant planning permission. Unless it can be said that the deficiencies are so serious that the document cannot be described as, in substance, an environmental statement for the purposes of the Regulations, such an approach is in my judgment misconceived. It is important that decisions on EIA applications are made on the basis of 'full information', but the Regulations are not based on the premise that the environmental statement will necessarily contain the full information. The process is designed to identify any deficiencies in the environmental statement so that the local planning authority has the full picture, so far as it can be ascertained, when it comes to consider the 'environmental information' of which the statement will be but a part."

Submissions

63. I come next to the submissions. Mr Jay QC submitted on behalf of the claimant that the Secretary of State erred in law in granting planning permission by reference to an indicative list of wastes to be deposited at the mine because it constituted a failure to provide data in order to identify and assess the main effects of the development as required by paragraph 3 Part II of Schedule 4 of the EIA Regulations. He identified the key issue as being whether there was data logically capable of meeting that requirement, and he submitted that Minosus Limited had failed to provide such data so that the cornerstone of the whole of the environmental assessment process was lacking. Alternatively, he put the case on Wednesbury grounds, namely that no authority could reasonably conclude that there was data capable of meeting the requirement.
64. In elaboration of those submissions it was said that the data had to be "hard data" that could be scientifically validated. Reliance was placed on a dictionary definition of data as being "known facts or things used as the basis of inference or reasoning". It was contended that, in the circumstances of this case, there had to be a positive list of named wastes together with their quantities. It was submitted that, as a minimum requirement, the objective data should consist of the properties of the waste, a positive list of generic waste types and the particular wastes within the generic types together with their hazard ratings. It was suggested that the particular wastes and their hazard ratings should be given by reference to the European Waste Catalogue, a document which was produced pursuant to an obligation under the Hazardous Waste Directive 91/689/EEC. It was submitted on behalf of the claimant that the defect of the environmental statement was that it only dealt with a broad range of waste, rather than waste types, leaving the details of the waste types to be dealt with under the PPC permit application.
65. Mr Jay contended that the PPC procedure had been deployed as a surrogate for the EIA which was impermissible because the detailed material had to be made available before planning permission was granted. Instead, he suggested that the Directives and the Regulations indicated what he called "a Russian doll approach", the EIA regime being the outer layer and the PPC regime being inside, so that the PPC regime provided an additional layer of protection as belt and braces to deal with the minutiae of pollution. In support of that assertion he drew attention to Regulation 31 of the Regulations which provides that a change in the use of land for the disposal of hazardous waste involves a material change in use of the land, the point being made that it would therefore have to be dealt with under the EIA regime.
66. Conditions (xii) and (xiv) were also criticised on behalf of the claimant. Condition (xii) was said to be too loose and too broad in that it did not contain a positive list of waste types specified with sufficient particularity, but instead dealt with generic properties of waste, rather than waste types, expressed in a negative form. It was accepted that that followed from the approach taken in the environmental statement so that the point taken on condition (xii) stood or fell with the claimant's main point.
67. Condition (iv) was said to give a wide discretion to the site chemist who is only working to condition (xii). The point was also made that the "decision tree" containing criteria which could lead to the exclusion of a waste had not been made the subject of a planning condition. It was accepted, however, that the criticism of condition (xiv) depended on condition (xii), which in turn depended on the claimant's main point.
68. Mr Jay raised a second ground of challenge which related to condition (vii)(a) which required a monitoring scheme for airborne particulates. It was submitted that the Inspector must have thought that there was a risk from airborne particulates because otherwise he would not have imposed the condition. In those circumstances, it should have been dealt with by the Secretary of State as part of the environmental statement and should not have been left to the County Council by way of a condition. The Secretary of State had therefore erred in law in dealing with an environmental effect by way of condition. It was described by Mr Jay as a fundamental consideration, not a matter of fine detail, and was therefore to be distinguished from the conditions in the Smith case.
69. So far as the law is concerned, Mr Jay distinguished the Gateshead case on the basis that it concerned the regime under the Environmental Protection Act 1990 with HMIP as the enforcing authority, whereas the relevant provisions of that Act had been repealed by the Pollution Prevention and Control Act 1999, which involved a different regime. It was not a case dealing with the EIA regime or the PPC regime.
70. So far as the Milne case is concerned, Mr Jay relied on the fact that Sullivan J's observations on the law related to a situation before the year 2000 when the PPC Regulations came into force. The claimant would take issue with those observations applying after that date.
71. When dealing with the cases of Smith and Blewett, Mr Jay postulated two different hypotheses. Hypothesis 1 was where the Schedule 4 Part II information had been supplied but the EIA was nevertheless defective, although not Wednesbury unreasonable. In that situation, he conceded that it may be appropriate to leave over points of detail relating to pollution control to the PPC process. Hypothesis 2 was where the EIA was defective because the data had not been supplied, rendering the environmental statement flawed, or alternatively Wednesbury unreasonable for that reason. It was submitted that, in that situation, an unlawful EIA cannot be rendered lawful by a subsequent process under a different regime. It was submitted that, if an environmental statement was fundamentally flawed, and therefore unlawful, a subsequent PPC permit could not convert it into a lawful one. It was therefore contended that the Environment Agency had an important role to play in hypothesis 1 cases, but no role to play in hypothesis 2 cases. The Tew case and the Hardy case were said to be examples of hypothesis 2 cases.
72. The Smith case was said to be an hypothesis 1 case where the claimant had not attacked the environmental statement but had attacked the conditions. The leaving of odour and vermin to the PPC regime was said to be a secondary site management issue, which was very different from the fundamental objection in the present case. Mr Jay sought to dissect paragraph 33 of Waller LJ's judgment in the Smith case by submitting that the first sentence was dealing with an hypothesis 1 case, the second sentence was dealing with an hypothesis 2 case, and that in the last sentence the point being made was that the planning permission must define the parameters within which any future decision maker such as the Environment Agency had to operate.
73. As far as the Blewett case is concerned, Mr Jay submitted that it was an hypothesis 1 type of case which did not concern the provision of data, and where there had been deficiencies in the environmental statement of a kind which did not convert it into an unlawful document so that matters of detail could be left over to the PPC process, unlike the present case where the lack of data rendered the environmental statement fundamentally flawed.

Conclusions

74. That latter point really illustrates fairly graphically the hurdle which the claimant has to overcome to succeed in this claim. He has to show that this is one of those cases, referred to by Sullivan J in paragraph 41 of the Blewett case, where the environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations. As Sullivan J observed, those cases are likely to be few and far between.
75. It is relevant to note, as did Ms Lieven on behalf of the Secretary of State and Mr Price Lewis QC on behalf of Minosus Limited, that a number of responsible bodies were satisfied with the environmental statement -- namely, the Environment Agency, the County Council as waste planning authority, the Borough Council with the assistance of independent consultants (until they had a change of heart, possibly without committee authority), as well as the Inspector and the Secretary of State. That is quite an impressive list. Of course, it does not necessarily mean that they are all right. They could have all been mistaken in overlooking the point now made by the claimant, namely that the data required to identify and assess the main effects which the development is likely to have on the environment had not been provided as required by paragraph 3 of Part II of Schedule 4 of the EIA Regulations.
76. I intentionally summarised the main contents of the risk assessment in the environmental statement at some length because I would have thought that it was self-evident that the environmental statement contained a considerable amount of data relevant to the assessment of risk. The authorities show that, whilst the environmental statement must contain sufficient information to enable the decision maker to make an informed judgment as to whether the development is likely to have a significant effect on the environment, it is for the decision maker to decide whether the information contained in the document is sufficient to meet the definition of an environmental statement in Regulation 2 of the EIA Regulations, subject only to review on Wednesbury grounds, whilst also bearing in mind that the document does not have to contain information about all the effects, only the "main effects" or "the likely significant effects". Furthermore, the judgment as to what is a "main effect" or a "likely significant effect" is one for the decision maker, not the court, subject to normal Wednesbury principles.
77. The decision maker in the EIA process is concerned with the impact of the development on the use of land. The decision maker in the PPC process is concerned with the potential polluting effect of the proposed development on the environment. There can clearly be some overlap between the two regimes, but they are separate regimes which have separate functions. I am not persuaded that the "Russian doll" approach suggested by the claimant is appropriate, or that it is right to say that the PPC process has been used in this case as a surrogate for the EIA procedure.
78. In my view the decision maker in the planning process must set the parameters within which the likely significant effects of the development can be assessed, but within those parameters he is entitled to take into account that there are matters which can properly be left for subsequent consideration and determination, whether it be by way of a planning condition or in the PPC permit process. That, it seems to me, follows from the principle enunciated in paragraph 33 of the judgment of Waller LJ in the Smith case, which is to be read in the context of paragraph 128 of the judgment of Sullivan J in the Milne case. It follows that, provided that those parameters, or constraints as Waller LJ called them, are determined within which the future details can properly be worked out, reliance can be placed by the decision maker in the EIA process on the proper operation of those further controls.
79. I do not accept Mr Jay's submission that the Milne case can be distinguished on the ground that it preceded the PPC Regulations that came into force in the year 2000 because the Milne case was cited with approval in the Smith case, which postdated those Regulations, and the Smith case was in turn relied on by Sullivan J in the Blewett case. In any event, as Ms Lieven pointed out, the PPC regime is stricter than its predecessor so that it might be thought even more reasonable to rely on it.
80. In my view, there was sufficient information provided in the environmental statement in this case for the Secretary of State to be able to identify and assess the main effects of the development on the environment and to set the parameters within which future details could be worked out. Whilst I can understand the claimant's concern over the indicative nature of the waste types as expressed in the environmental statement, and his concern to know the specific waste types that were to be deposited in the mine, it was, in my view, perfectly reasonable for the planning authority and for the Secretary of State to take the waste types that Minosus Limited had said would be acceptable to them in order to ascertain whether they would be likely to have significant effects on the environment. It is true that those waste types are generic and not particularised into specific waste types, but there is no need for them to be so specified at the EIA stage, provided that the description of the generic waste types was sufficient to enable the decision maker to identify and assess the main effects of the development on the environment.
81. I see nothing wrong with the way in which the risk assessment took three waste types as being the most representative, the most reactive and the most volatile respectively. There is nothing in the Regulations which requires the data referred to in paragraph 3 of Part II of Schedule 4 of the Regulations to be "hard data" that could be scientifically validated. Data can consistent of information from many different kinds of sources. As I have said, the environmental statement contained a considerable amount of data relevant to the assessment of risk. Significantly, as Ms Lieven pointed out, no-one has suggested that any particular waste type has fallen through the net of the generic waste types considered in the risk assessment which was likely to have a significant effect on the environment. Even if anything has fallen through the net, it would still be picked up in the more detailed PPC process.
82. The important point is that the generic waste types which formed the basis of the planning application and which were considered in the risk assessment in the environmental statement were tied into the planning permission by condition (xii) of that permission. I see nothing wrong in describing the permitted waste types in what may be said to be negative terms such as "non-flammable", nor do I see anything wrong in that condition positively excluding certain waste types. Condition (xii) reflected Table 2.1 of the environmental assessment which reflected the basis of the planning application. The Secretary of State thereby set the parameters within which the likely significant effects were assessed and which were safeguarded by condition (xii) of the planning permission, leaving over subsequent matters of detail to be dealt with by other planning conditions and by the PPC process.
83. Having dealt with the source, namely the waste materials, the risk assessment considered the pathways and the receptors. I was told that the waste material would be deposited about 180 metres below ground, a very different situation from the normal surface landfill situation where there is virtually direct pathway to receptors. Furthermore, 11 different scenarios of possible disruptive events were considered.
84. In my view, the Secretary of State was justified in leaving over detailed consideration of waste types to the PPC process. The Secretary of State was entitled to take the view that the data that was provided was sufficient to enable the likely significant effects of the development on the environment to be identified and assessed. Both the Inspector and the Secretary of State carefully considered the matter and I do not consider that the decision could be said to be Wednesbury unreasonable, or that it could be said to be in any other way wrong in law. Although I would accept the claimant's point that the PPC process cannot be used to convert an unlawful environmental statement into a lawful one, this is not one of those few and far between cases where the environmental statement is so deficient that it cannot reasonably be described as an environmental statement.
85. It was accepted on behalf of the claimant that the points taken on conditions (xii) and (xiv) of the planning permission stood or fell with the main ground of challenge. The only thing that I should mention about condition (xiv) is that, although it looks on the face of it that the site chemist is being given wide powers, in fact he would be working to the constraints imposed by condition (xii) and by the PPC permit, in effect ensuring that the PPC permit was being adhered to.
86. Finally, there is the separate ground of challenge to condition (vii)(a), dealing with the monitoring of airborne particulates. This seems to me to be a good example of what, in the circumstances of this case, could be left to the control of another authority, in this particular instance the County Council as waste planning authority. It has to be seen in the context of the Inspector's conclusion in paragraph 16.44 of his report dealing with dust, which I quoted earlier, from which it is clear that the Inspector did not consider that aspect to be a fundamental consideration, as the claimant suggests it to be. On the contrary, he plainly considered it to be a low risk consideration in so far as it was relevant to planning considerations relating to the use of land. In those circumstances, the Secretary of State was entitled, in my view, to deal with it by way of a monitoring condition in the planning permission.

Overall conclusion

87. Having therefore considered both the main ground of challenge and the ground of challenge relating to condition (vii)(a), my conclusion is, for the reasons that I have given, that neither of the grounds of challenge succeed and that this application must therefore be dismissed.
88. MS LIEVEN: My Lord, in those circumstances, on behalf of the Secretary of State, I ask for an order for costs of the entirety of costs, not to be enforced without leave of the court. I am sure the associate will draw up the legal services funding order. My Lord, I do not believe that is likely to be controversial.
89. SIR MICHAEL HARRISON: Can we deal with these things one by one?
90. MS LIEVEN: Yes, certainly.
91. SIR MICHAEL HARRISON: I imagine you do not oppose that, do you?
92. MR ZWART: No, my Lord.
93. SIR MICHAEL HARRISON: Thank you very much.
94. MS LIEVEN: My Lord, then the other application --
95. SIR MICHAEL HARRISON: Then I will make that order. Yes.
96. MS LIEVEN: Now, my Lord, I do not know at what point you want to deal with this, but the second application I have to make is, as your Lordship will be aware, an application for a wasted costs order against one specific part of those costs.
97. SIR MICHAEL HARRISON: Should we leave that over to the end?
98. MS LIEVEN: Certainly, my Lord, yes.
99. SIR MICHAEL HARRISON: There are skeleton arguments that have been put in.
100. MS LIEVEN: The only other issue I would just like to raise with your Lordship is whether your Lordship could request that the transcript be expedited. I do that because in the judicial review of the Environment Agency summary grounds of defence need to be lodged next week and what your Lordship said today will be of some importance, particularly to the Environment Agency who are not here today. So if it was possible for them to be given a transcript by early next week that would be enormously helpful, even if it meant a transcript in draft. So perhaps your Lordship could make some indication to the transcript writer. I know that these things can in appropriate cases be dealt with very quickly.
101. SIR MICHAEL HARRISON: I imagine that nobody else has any objections to that and I think the reason seems to be a good reason, so I will order, if I may, that there be expedition with the transcript.
102. MS LIEVEN: I am very grateful.
103. SIR MICHAEL HARRISON: There may be a little bit of delay in the correction of the transcript in so far as I am not within the building after today, but no doubt we will try to make suitable arrangements.
104. MS LIEVEN: If your Lordship was prepared to release it in draft, and I will -- I am instructed in that case on behalf of the Secretary of State again, the Environment Agency is separately represented, but I can certainly make it absolutely clear to them that it is a draft, but I think it is the thrust of what your Lordship said, rather than the particular detail, which is important.
105. SIR MICHAEL HARRISON: That being so, as long as everybody realises it is in draft and should be dealt with on that basis, so be it.
106. MR PRICE LEWIS: My Lord, may I mention in that context just three very small matters in your Lordship's judgment. Perhaps it is nitpicking on my part.
107. SIR MICHAEL HARRISON: Yes.
108. MR PRICE LEWIS: Your Lordship mentioned that this was a claim for judicial review. Strictly speaking it is a statutory challenge under the Act.
109. SIR MICHAEL HARRISON: Yes. Thank you.
110. MR PRICE LEWIS: Just one point.
111. SIR MICHAEL HARRISON: Section 288. I always forget, is that an application or an appeal? One is an enforcement notice which is an appeal, is it not?
112. MR PRICE LEWIS: It is an application.
113. SIR MICHAEL HARRISON: Thank you.
114. MR PRICE LEWIS: A couple of other tiny points, my Lord. You gave the date of the decision letter 23rd February -- it was in fact 23rd December 2003 -- at one stage of your judgment.
115. SIR MICHAEL HARRISON: Did I?
116. MR PRICE LEWIS: If I am wrong I apologise, but that is what I heard.
117. SIR MICHAEL HARRISON: I gave it as 23rd February and it should be ...?
118. MR PRICE LEWIS: December, my Lord.
119. SIR MICHAEL HARRISON: I will check that through. Thank you very much.
120. MR PRICE LEWIS: Please, my Lord. If I am wrong I apologise.
121. SIR MICHAEL HARRISON: There were two decisions here of course.
122. MR PRICE LEWIS: Yes, but the relevant one that has been upheld.
123. SIR MICHAEL HARRISON: Thank you very much.
124. MR PRICE LEWIS: One final matter. Your Lordship mentioned 14 scenarios in the environmental statement risk assessment. There were 11 in fact.
125. SIR MICHAEL HARRISON: There were, were there? I know at one point you said 11 but I actually found in the documents that there were 14.
126. MR PRICE LEWIS: Yes, 11 in the environmental statement, then a few more considered in the evidence, my Lord.
127. SIR MICHAEL HARRISON: So 11 in the environmental statement and three more considered ...?
128. MR PRICE LEWIS: In the evidence at the inquiry.
129. SIR MICHAEL HARRISON: I see.
130. MR PRICE LEWIS: That was the position. I do not suggest anything turns on it.
131. SIR MICHAEL HARRISON: Right, okay, thank you very much. Yes. Now, unless there are any further applications from anybody?
132. MR PRICE LEWIS: My Lord, I am well aware of the limitation on costs for third defendants here but, my Lord, I do make the application for costs to be in the same terms as my learned friend has obtained. It is a matter for your Lordship's discretion as to whether your Lordship has been assisted by my presence.
133. SIR MICHAEL HARRISON: Well, Mr Price Lewis, I will not say I was not assisted. It is always a pleasure to see you and there were, no doubt, times when you were able to help about what happened at the inquiry, but as a matter of fact and degree I do not think that would be sufficient to say that the claimant should have to pay the second defendant's costs.
134. MR PRICE LEWIS: I had anticipated that. Thank you.
135. SIR MICHAEL HARRISON: Thank you. Any other applications?
136. MR ZWART: Would it be appropriate to raise appeal matters now?
137. SIR MICHAEL HARRISON: Yes.
138. MR ZWART: It is always difficult to contemplate reasons for seeking an appeal in the light of an oral judgment. I am instructed to make an application in any event. I will confine it to this basis. Your Lordship recognised that you were dealing with a most difficult area in respect of the relationship between the EIA and the PPC regime and the question is essentially whether conditional data falls within the meaning of data under paragraph 3, Part II of Schedule 4 of the EIA Regulations as transposed from the EIA Directive Article 5(3) in Schedule 3. And with the greatest respect, my Lord, we would disagree and say there is a clear question there of whether on the facts of this case the conditionality of the data meets the "at least" obligation. Therefore I seek leave on that basis. Clearly there may be other matters, pending sight of the transcript, for Mr Jay to consider.
139. SIR MICHAEL HARRISON: Thank very much. Mr Zwart, obviously I realise that that is the issue in the case and I realise it is an arguable point, but I have given my view and I am not disposed to grant permission to appeal in relation to it.
140. MR ZWART: My Lord.
141. SIR MICHAEL HARRISON: Thank you very much. Well, then there is an application for wasted costs. Ms Lieven?
142. MS LIEVEN: Yes, my Lord. I hope your Lordship has seen our skeleton argument.
143. SIR MICHAEL HARRISON: Yes, thank you very much.
144. MS LIEVEN: I hope your Lordship has also seen a short skeleton argument submitted on behalf of Mr Buxton from Mr Jay and Mr Zwart.
145. SIR MICHAEL HARRISON: Yes, I have that as well. Thank you very much.
146. MS LIEVEN: My Lord, if it is helpful what I intend to do is to go through the points in our skeleton argument. Can I assume that your Lordship has had an opportunity to read it?
147. SIR MICHAEL HARRISON: Yes, I have read it.
148. MS LIEVEN: I will just go through it and highlight the key points, if I may.
149. SIR MICHAEL HARRISON: Yes.
150. MS LIEVEN: And then I will turn to dealing with Mr Zwart's skeleton argument. My Lord, so far as the suggestion that the matter should be adjourned is concerned, I am not sure how strongly that is being proceeded with, but can I just say very briefly that there is no obligation under the Rules to serve any skeleton argument or any advance notice of argument.
151. SIR MICHAEL HARRISON: You are not asking for an adjournment, are you, Mr Zwart?
152. MR ZWART: No, I am not, my Lord, but I ask the court to bear in mind the obligation to have regard to whether the solicitor has had the reasonable opportunity to make representations. I am instructed that if you have any doubt over the matter this morning that you adjourn it. We do not think there is any doubt because we can resist the application.
153. SIR MICHAEL HARRISON: I would have thought all the issues are pretty well known to everybody and that we can all proceed today, unless you are asking for anything to the contrary.
154. MR ZWART: I am not asking for anything to the contrary.
155. SIR MICHAEL HARRISON: Thank you very much.
156. MS LIEVEN: My Lord, I will then proceed. As I set out the factual background to this matter, perhaps the first key point to emphasise is that on 26th October there was an application in front of Sullivan J dealing precisely with the issues that went to the procedure of the case, and at that hearing Sullivan J, as we say in paragraph 3, gave the claimant permission to serve an updated skeleton by 7th November. Then, as I say in paragraph 4, in the letter of 29th October the Treasury Solicitors were expressly told that no such skeleton was to be served.
157. SIR MICHAEL HARRISON: I should say that when you mention particular letters I do not have those to hand.
158. MS LIEVEN: They are on the court file. We can certainly have them handed up, but I do not think the content of any of them is in dispute.
159. SIR MICHAEL HARRISON: Then I will not ask for them unless Mr Zwart wants them to be put in front of me. No? Very well.
160. MS LIEVEN: My Lord, despite the indication of 29th October that there would be no skeleton, on 5th November after close of business we were served with a 44-page witness statement, as it was then called, from Mr Buxton. I do not know whether your Lordship has now had an opportunity to look at that but, as we say in paragraph 5 of this skeleton, that ran to 44 pages and consisted of detailed and lengthy legal submissions, as well as points on the facts.
161. SIR MICHAEL HARRISON: If I could just interrupt you to say that I had read the majority of it before the hearing of this case, having taken a very deep breath before I delved into it, and since the case, and since reading your skeleton argument, I have last night just reread it.
162. MS LIEVEN: I am grateful, my Lord. Well, your Lordship, having read parts of it and then reread it, will perhaps agree that there were detailed and lengthy legal submissions containing, as we say there, some issues which had never been raised before in the claim at all. Then, as we say in paragraph 6, there was correspondence between the claimant's solicitors and the first defendant's solicitors. We insisted that if the document was to be put in then there must be an application, and we made it clear at that stage that the costs associated with that would be sought personally from the claimant's solicitors.
163. We then come to the hearing before Mitting J, and I should make entirely clear here, my Lord, that I did not attend at that hearing. Ms Patry did.
164. SIR MICHAEL HARRISON: I saw that from the court order.
165. MS LIEVEN: I am very grateful, my Lord. Mr Price Lewis did and those sitting behind me in the main did. So although I was not there I do have very clear instructions as to what was said. Mr Jay, who by that stage had of course replaced Mr Clayton as leading counsel for the claimant, asserted at that hearing that the witness statement should be admitted because it was an essential document -- and I believe he used those words -- which would aid the judge hearing the claim to understand the complex legal material, and he further submitted to Mitting J that he would use the witness statement as a detailed speaking note, and in those circumstances it would be futile -- and again I think that was his word -- not to admit the document.
166. Unsurprisingly, in those circumstances, Mitting J admitted it because if in effect Mr Jay was saying "I am going to use it as my speaking note", then there would not be very much point in Mitting J refusing to admit it, and he said it should stand as a supplementary witness statement.
167. SIR MICHAEL HARRISON: Should that not be supplementary skeleton argument?
168. MS LIEVEN: That should be a supplementary skeleton argument. Now that I have read it, my Lord --
169. SIR MICHAEL HARRISON: That is what caused me to go to the order.
170. MS LIEVEN: Yes, supplementary skeleton argument, my Lord. On that basis a considerable amount of time -- and I will come to the costs schedule we have submitted at the end --
171. SIR MICHAEL HARRISON: Is that with the papers?
172. MS LIEVEN: My Lord, it has been served on the other side. I do not understand that it has been served on your Lordship.
173. SIR MICHAEL HARRISON: We will come to it.
174. MS LIEVEN: Then, my Lord, paragraph 11, as a matter of fact during the course of the substantive hearing Mr Jay did not rely on that witness statement. It was not used as a speaking note, and certainly Ms Patry and I have no recollection of it ever being referred to your Lordship whatsoever, except by Mr Price Lewis who sought to deal with some of the factual issues that were raised within it. I will come back when I come to deal with the points raised in Mr Zwart's skeleton argument as to how useful or unuseful that document actually was.
175. My Lord, I then turn very briefly to the law, which I do not understand from Mr Zwart's skeleton argument to be in issue. As we set out at paragraph 14, wasted costs means costs as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative; and secondly, which in the light of any such act or omission occurring after they were incurred, the court considers it unreasonable to expect that party to pay.
176. My Lord, the nature of the jurisdiction has been considered in a number of cases. The one that we expressly refer to there is Ridehalgh v Horsefield. We have copies of that but I do not intend to refer your Lordship to it unless --
177. SIR MICHAEL HARRISON: It is the three steps. I think they are fairly well-known and not contentious, are they?
178. MS LIEVEN: Your Lordship is obviously familiar with the jurisdiction. I do not need to read through it. Can I then turn directly to the submissions with regard to this particular case? As we say at paragraph 18, Mitting J on 16th November did make an order that the costs of the application be costs in the case. But, my Lord, we now seek a further order that this part of those costs -- that is the costs of the application and the costs of dealing with the witness statement -- should be paid by the claimant's solicitors personally. We have set out there a potential concern that the claimant, Mr Buxton, might argue that the order from Mitting J should not be varied, but, my Lord, that is not raised in Mr Zwart's skeleton, so I am not going to say any more about it. What is clear from the authorities is that the appropriate time to make an application for a wasted costs order is at the end of the trial and that is what we have done here.
179. So then, turning to liability at paragraph 21, we say that the claimant's solicitors have acted unreasonably, leading to the incurring of unnecessary costs in the following respects. First of all, and this is little (a) in paragraph 23, Sullivan J ordered the claimant be permitted to submit the further skeleton argument. They expressly said they were not doing so and then, completely out of the blue, they produced this further witness statement. And my Lord, if they had intended to produce a further skeleton argument, then that should have been dealt with at the hearing in front of Sullivan J, and then there would have been no reason to go back in front of Mitting J.
180. SIR MICHAEL HARRISON: Did you say that they expressly said that they were not going to produce a witness statement?
181. MS LIEVEN: If your Lordship goes back to paragraph 4 in the note, the Treasury Solicitor --
182. SIR MICHAEL HARRISON: This was afterwards, I see.
183. MS LIEVEN: Sullivan J gave permission. They expressly told us they were not taking that up, and then out of the blue comes this witness statement. Then, as I say at paragraph (c), the witness statement of Mr Buxton appeared two working days before our skeleton was due to be lodged. So a large amount of work had been done on that skeleton which then had to stop and be completely reconsidered in the light of this, at that stage, purported witness statement but in reality document of legal submissions. As we say at (c), contrary to the rules on the contents of witness statements, the witness statement did not contain evidence, and it is accepted that instead it contained detailed legal submissions.
184. Then, (d), the claimant's solicitors only made an application for permission to rely on the witness statement when prompted by the Treasury Solicitors; (e), the hearing then had to take place because of the claimant's solicitors' conduct; and then (f), we were told, as I have already said, that the witness statement was highly relevant at that hearing and would be used as a speaking note, and on that basis, as I say over the page, the first defendant's solicitors and counsel spent considerable time considering the witness statement, taking instructions and preparing the case; whereas, as I say in (h), the claimant did not actually rely on the witness statement at all; then (i), it should be noted that the claim in this case was made in February, so nine months ago, and it is wholly unclear why it was necessary to serve a witness statement at such a late stage of the action.
185. So we say in paragraph 24, it was unreasonable for the claimant's solicitors not to mention the need for a further witness statement at the hearing before Sullivan J; to serve a witness statement without notice; to serve a witness statement instead of a supplementary skeleton argument; and one which contained new legal submissions. We say in 25 that this unreasonable behaviour has led the first defendant to incur considerable costs.
186. Importantly, at 26, my Lord, we say that the fact that the claimant's solicitors have the benefit of Legal Services Commission Funding is irrelevant in these circumstances. Costs have been incurred due to their unreasonable behaviour, and the wasted costs order, limited to the costs of dealing with the witness statement, is therefore just and appropriate.
187. Can I then turn, my Lord, to Mr Zwart's skeleton argument, and the substantive points that he makes in there? Again, can I assume your Lordship has had an opportunity to read this?
188. SIR MICHAEL HARRISON: Yes, and taken.
189. MS LIEVEN: I am grateful, my Lord. In paragraph 7 to 9 of the skeleton the question is addressed of whether the document advanced the resolution of the case. My Lord, in considering this issue there seemed to be three points raised: (1) it assisted Mr Jay; (2) it assisted the court; and (3) it assisted the defendants. Can I deal with each in turn?
190. The principal point made in these paragraphs is that the document in question assisted Mr Jay in understanding the case and preparing the case. My Lord, that is, with respect to my learned friend, wholly irrelevant. It may or may not have helped Mr Jay to have a lengthy document telling him about the case. That is a matter for Mr Jay and Mr Buxton. The complaint that the Secretary of State has is that we had to read it and deal with it. I cannot possibly speak for Mr Jay as to whether that document helped him or not, but it is nothing to the case as to why it was served on us, either as a witness statement or as a skeleton argument. So, my Lord, as far as the points made in 9a and 9b are concerned, about Mr Jay finding the document invaluable, in my submission that is simply no defence for the application of a wasted costs.
191. As far as whether it assisted the court, well, your Lordship will be in the best position to judge that, but the two most important points on that, so far as the Secretary of State is concerned, is that first of all, it was never referred to in oral argument and, given that Mr Jay made no -- it obviously was not referred to in Mr Clayton's original skeleton argument, so it is very difficult to see how it was proposed to assist the court in those circumstances; and secondly, your Lordship, despite what you said a few moments ago, did make clear at the beginning of the case on the first day that you had only read a part of it and there was no indication, in my submission, either in the way Mr Jay presented his case or from your Lordship, that that document had been of any assistance whatsoever.
192. Thirdly, my Lord, as to whether or not it assisted the defendants, the suggestion is made in this skeleton argument that it would have helped the defendants to chart their way through the inordinate amount of material within the case. But, my Lord, in my submission, that is totally wrong as anybody who has read it will know. In my submission, all that document did was simply confuse what was already a not particularly well pleaded case. Certainly speaking for myself, when I first read it, it seemed to raise a number of different points which I had not appreciated were already raised. Two examples were the one about co-disposal and the one about a particular plan, GH6.
193. So, before we got to the hearing before Mitting J, rather than clarifying, it seemed to add and confuse the situation. Then in front of Mitting J I am instructed that Mr Jay said that he was not intending to raise any new arguments out of this document. But, my Lord, in my submission, that really only served to confuse the issue even further, because if they were not new arguments the question arose how they tied into the existing arguments, and it is simply a matter of fact that in the light of this document, after the hearing before Mitting J, the Secretary of State had to have an additional conference in order to discuss what was in that document and what we should do about it, and certainly myself and Ms Patry had to spend considerable amounts of time considering the substance of the documents, and my instructing solicitors had to spend a considerable amount of time both reading it and taking instructions on it.
194. My Lord, finally, in terms of this argument that somehow the document helped, it is the suggestion in Mr Zwart's skeleton argument that we would have been taken by surprise by Mr Jay's factual analysis which was based on the --
195. SIR MICHAEL HARRISON: Could you say that again?
196. MS LIEVEN: I am sorry, my Lord. It is paragraph 12 of Mr Zwart's skeleton. I am calling it Mr Zwart's skeleton in order to differentiate from every other document. He said had the documents not been put in, then the FSS would surely have been taken by surprise by Mr Jay's factual analysis which, as above, was based on the document.
197. Well, my Lord, it is always difficult to try and put oneself into the mind of anybody else, but I certainly did not understand Mr Jay's factual analysis based on that document, and to the degree that Mr Jay at the hearing focused on the issue of data as meaning hard scientific data, that was not a matter in which I was assisted from having read Mr Buxton's document. So in my submission the document did not assist in any terms and its sole function was to involve those instructing me, myself and Ms Patry in significant amounts of additional time.
198. Now, can I have handed up to your Lordship the schedule? (Handed). My Lord, the total amount in issue here is £3,352. If your Lordship has the single page first, that is the schedule that we served on Mr Buxton, I believe, in the course of yesterday morning, and, my Lord, your Lordship can see that is broken down into the sum I have just given your Lordship. It was then indicated in Mr Zwart's skeleton argument that the breakdown was insufficiently particularised -- that is in paragraph 14 of his skeleton argument -- and therefore my instructing solicitor prepared overnight a more detailed breakdown of his time, and that is what is given in the two-page document. If your Lordship should need a more detailed breakdown of my time and Ms Patry's, we can obviously give your Lordship that.
199. In my submission, given the fact the document was 44 pages long -- and if your Lordship has read it you may have had the difficulty that I did. It is not one of the more clearly argued documents I have come across. The fact that my instructing solicitor only spent 10 hours on it is in itself a compliment to the speed of his working.
200. My Lord, those are all the submissions I was going to make at this stage, unless there is anything else I can help your Lordship with.
201. SIR MICHAEL HARRISON: Thank you very much. Yes, Mr Zwart?
202. MR ZWART: My Lord, if I could deal with the matters in two stages. The first is liability and the second is quantum. I am going to break down liability into points of reply immediately and then our resisting it. Of course Mr Jay and myself drafted this skeleton in the application, and indeed many of the words are his. He cannot be here himself.
203. SIR MICHAEL HARRISON: Yes, I see.
204. MR ZWART: Now, a point was made in respect of whether the Secretary of State sought -- that we did not vary the -- sorry, we developed the skeleton in haste and we have been trying to deal with the matters on the hoof yesterday. We have been criticised by Ms Lieven for not raising the issue of variation of Mitting J's order. In fact, that in substance is what the Secretary of State is attempting to do. Mitting J ordered the claimant's costs in the case for the application. So in effect this is an appeal against that order.
205. SIR MICHAEL HARRISON: Yes, I see what you mean.
206. MR ZWART: Secondly, the solicitor as at the 26th November 2004 hearing before Sullivan J did not actually know what the position was in respect of either a new leader or whether a further supplementary skeleton or witness statement would be required anyway, because he did not know whether new counsel would be required, what that new counsel might be, whether there would need to be further documents, and you will recall, my Lord, that it was only the beginning of November that there was a changeover in leaders from Mr Clayton to Mr Jay. So we were on the cusp, as it were.
207. SIR MICHAEL HARRISON: Yes, so I understand, yes.
208. MR ZWART: Ms Lieven has said that it is irrelevant that the document helped Mr Jay. Well, with the greatest of respect to Ms Lieven it plainly is relevant because Mr Jay himself, as he said in our skeleton, found that it was very helpful to him.
209. SIR MICHAEL HARRISON: I really did not understand that point. If it was helpful to him, so be it, but there is no need to give it to the other side. That could still be his own document for himself. When you start giving it to the other side, a lot of hares have to be chased.
210. MR ZWART: That is true to an extent, my Lord, but this is a case which has proceeded from 1600 pages down to some 330.
211. SIR MICHAEL HARRISON: That is the job of counsel to do that, is it not? Here we have a document of 44 pages with appendices, I think, of over 150 pages, as well as the witness statement itself.
212. MR ZWART: That is true, my Lord, but as was made clear to Mitting J -- which I will come to in a moment -- in the application which Ms Lieven said she did not attend, those are all public documents which could have been put in in any event. They did not add to the bulk material in reality.
213. The simple point is that having a 44-page document is far shorter than a 330-page core bundle and it was presented as a guide, in effect, as was made clear to Mitting J, for the court to navigate itself through what were admitted to be very complex facts with a complex legal framework.
214. SIR MICHAEL HARRISON: I do not want to appear disrespectful at all, but if it is a guide it is a hell of a maze.
215. MR ZWART: It is a hell of a maze, my Lord, but it is a hell of a maze on the facts of the case where you have, as you recognised in giving your judgment, an application for planning permission to develop which overlaps two regimes, and trying to locate exactly where you are at in those two regimes is necessarily difficult.
216. SIR MICHAEL HARRISON: This is Mr Buxton's document, is it not?
217. MR ZWART: Yes. Now, my Lord, if I could turn briefly to the principles for a wasted costs application, the Secretary of State faces a high hurdle and in our respectful submission it is a bold application, and we say that it proceeds on a wrong factual footing.
218. Firstly, has the instructing solicitor to the claimant acted unreasonably? Secondly, if so, did the conduct cause unnecessary costs? Thirdly, if so, there is a discretion in any event and would it be just to make the solicitor compensate the first defendant in whole or in part?
219. As to the meaning of unreasonable, unreasonable means vexatious or designed to harass rather than advancing resolution of the case. Now, my understanding is that the Secretary of State says it is unreasonable. It certainly was not vexatious. It certainly was not designed to harass. In fact Mr Jay and myself contend that it was actually meant to advance resolution of the case by condensing down very complicated facts from 1600 pages into a succinct document.
220. However, the key test is whether the conduct permits of a reasonable explanation. That is from the Ridehalgh case, copies of which we have for my Lord. The circumstances must clearly point to unreasonable conduct. That is the Tolstoy, my Lord, at page 747.
221. Thirdly, fairness requires that the instructing solicitor know what he has done wrong clearly, and that is the Ridehalgh case at page 238. Fourthly, causation is essential. That is the same case at 237. Without causation there can be no wasted costs order made. Authority for that is Byrne v South Sefton [2001] EWCA Civ 1904, and the court is obliged to bear prominently in mind the peculiar vulnerability of legal representatives acting for legally aided claimants. So, contrary to Ms Lieven's skeleton, legal aid is not irrelevant, as she says at paragraph 26.
222. Thereafter, my Lord, the wasted costs order application inquiry must be proportionate, and that is Ridehalgh at 238, and to adjourn, as we have heard, may not be proportionate. That is Ridehalgh at 239. Thereafter, as I have said to you at the outset, my Lord, the instructing solicitor must have opportunity to show case. So if you have any doubts you ought to adjourn. That is Ridehalgh at 239. My Lord may bear in mind --
223. SIR MICHAEL HARRISON: I do not have any doubts so I am not adjourning.
224. MR ZWART: I am obliged. Then at paragraph 747, circumstances must clearly point to unreasonableness. Now, the facts in a nutshell, my Lord: we say that the defendant does not get out of the starting blocks on the application. Firstly, we say that the document did advance the case. It certainly assisted Mr Jay. It certainly assisted his presentation of the case and I will come to that shortly. Secondly, having read Ms Lieven's skeleton, it does not seem to identify clearly what the instructing solicitor did and in reality seems to criticise Mr Jay's advocacy style, to which I will come. Thirdly --
225. SIR MICHAEL HARRISON: Sorry, I did not understand your second point.
226. MR ZWART: The criticism is made, my Lord, of Mr Jay not referring to this document.
227. SIR MICHAEL HARRISON: I see.
228. MR ZWART: But the reality was that he did. I will come to that.
229. SIR MICHAEL HARRISON: I see.
230. MR ZWART: Thirdly, my Lord, the skeleton proceeds on the basis of the wrong legal footing because legal aid is clearly a relevant consideration because the court is obliged to bear it prominently in mind and of course as a countervailing obligation on the solicitors as borne in mind by them.
231. Fourthly, the skeleton proceeds on the basis of the wrong factual footing because it says throughout that this document is a witness statement when as we shall see shortly Mitting J himself said immediately after Mr Jay stood up that in fact it is a skeleton argument, it is not a witness statement, and he actually ordered that it stand as a skeleton, not a witness statement.
232. SIR MICHAEL HARRISON: Because it was not what it said it was.
233. MR ZWART: Exactly.
234. SIR MICHAEL HARRISON: The complaint is that it should not have been put in in a form which was incorrect.
235. MR ZWART: As I understand the position, my Lord, it was put in that form because it was exhibiting some documents and that is why it was --
236. SIR MICHAEL HARRISON: They could always be attached to a skeleton.
237. MR ZWART: That is true, my Lord. It was most obvious to Mitting J that that is what it was when he saw it. I will go to the application hearing in a moment if I may, if necessary. Secondly, in respect of whether or not it was relied upon, my Lord, clearly Mr Jay did place extensive reliance on the document, and I will go to that shortly.
238. Fifthly, there was no causation in this case but in fact there was election by the first defendant. Simply put --
239. SIR MICHAEL HARRISON: No causation because what?
240. MR ZWART: There was no causation in this case because the first defendant elected to take the approach that they did. I say that because, my Lord, the skeleton is premised on the basis that subsequent to the Mitting J hearing they incurred extra costs. When we go to the content of that hearing you will see that it is spelled out in terms: there were no new matters raised, no new issues raised, and that the document be treated as a supplementary skeleton.
241. If there is any explanation of the sixth point, it may be that, as Ms Lieven has fairly said, she was not present at the hearing on 16th November and therefore was not able to take on board what Mitting J had said.
242. Just dealing with a discrete point, my Lord, under legal aid, it is alleged in paragraph 23.1 of this first defendant's skeleton that in any event this document was tardy because the claim was issued in February and at the same time, in paragraph 26, legal aid is said to be irrelevant. The Secretary of State cannot have his cake and eat it.
243. My Lord, just for your note, if I can give you some references, CCB 24, paragraphs 4, 5, 6, 9 and 10 spell out the difficulties and issues with legal aid funding around the March and April period and explain the, as it were, peculiar vulnerabilities that the solicitor works to. Shall I turn those pages up? My Lord, this is a witness statement of Mr Buxton. He says at paragraph 4 that there is a very large amount of complex material available.
244. SIR MICHAEL HARRISON: This is the witness statement you are referring to?
245. MR ZWART: No, my Lord, this is the CCB bundle, paragraph 24. This is Mr Buxton outlining the practical difficulties that a legally aided claimant --
246. SIR MICHAEL HARRISON: In a letter?
247. MR ZWART: In a witness statement.
248. SIR MICHAEL HARRISON: Do you want me to look at it?
249. MR ZWART: You do not have to, my Lord, but it just helps me to explain the position.
250. SIR MICHAEL HARRISON: Right.
251. MR ZWART: He says:

"Only very recently has funding been made available that would enable counsel to advise."

252. Then:

"Funding is not presently available to make application for a further extension of time [another difficulty], nor I believe that that be warranted."

253. And there Mr Buxton is plainly making good use of scarce resources by being prudent in whether he makes applications for the countervailing obligation. He then says at 6:

"We propose to rely on the old trial bundle prepared for the earlier decision."

254. He is again seeking to save costs there, and then at 9 he notes the 1600-page bundle:

"It is a very different exercise from a funding point of view from that envisaged in relation to the initial evidence. It cannot be done immediately ... some delay. Subject to that I intend to instruct counsel as soon as the funding position is available."

255. He is there spelling out the practical difficulties they had because funding is given by legal aid in salami slices.
256. SIR MICHAEL HARRISON: When is that?
257. MR ZWART: This is 29th March 2004.
258. SIR MICHAEL HARRISON: We are talking about November, are we not?
259. MR ZWART: Yes, my Lord, but it characterises the inherent difficulty of legally aided cases where you do not get your funds front-ended.
260. SIR MICHAEL HARRISON: I understand that.
261. MR ZWART: So you get salami slices all the way through. A very practical example is legal aid cover for the trial --
262. SIR MICHAEL HARRISON: A fairly big bit of salami with this witness statement.
263. MR ZWART: My Lord, the cover for the trial itself was not granted until practically at the court door, and all those impact practically on matters. So it is not right to say that it has been tardy by the solicitor because he has had it since February.
264. Secondly, my Lord, you will be fully aware that the presence of a third party discretion by way of legal aid is a practical impediment and can be unpredictable in terms of resistance; and thirdly, you will be aware that making the case is always more difficult than defending it because one has to get through more documents.
265. Now, my Lord, in terms of unreasonable conduct, it may or may not be helpful for you to go through the Ridehalgh and Tolstoy cases to show the examples that are given, but if you do need assistance, I can go through them. If you do not, I can simply summarise. They all bear unusual features. So, for example, in the Tolstoy case you have a fraud feature coupled with a purchase of a cause of action in order to bring a claim. In the other cases you have examples of negligence, other matters and other factors which give rise to a wasted costs order, and those were then overturned in the Court of Appeal. So on the facts Ridehalgh is very far from our case. In fact it is --
266. SIR MICHAEL HARRISON: I think each case has to be judged on its own particular facts, does it not?
267. MR ZWART: Of course it does, my Lord. The point to be made though is that these cases show very high hurdles that have to be crossed by the Secretary of State in order to succeed and, with the greatest respect to them, their application in this case is very much lower than that hurdle.
268. My Lord, in terms of the unreasonable behaviour alleged at paragraph 23 of the Secretary of State's skeleton, at (a) it is contended that there was a witness statement when in fact it was a supplementary skeleton argument. The solicitor is criticised for not spelling out that the document would be forwarded, but of course at that time they did not know. So yes, they sent out a letter, but they did not know at that time what the situation was going to be. We were on the cusp of changing counsel.
269. At (b) it is said that no further skeleton was in fact served by the claimant. That is just wrong on the facts. This document was in fact a supplementary skeleton, albeit it was served two days late, as Mitting J well recognised.
270. At (c) it was spelled out by Mr Jay to Mitting J that there were no new issues raised by the document, whether it was co-disposal or otherwise. There were no new issues. He had read the documents. He had read this document and he spelled out to the Secretary of State and the court that that was so.
271. Now, in respect of (d) it is said that the claimant's solicitors only made an application for permission to rely upon the document once prompted by the Treasury Solicitor. Well, my Lord, the application was made but the Secretary of State for some reason refused to consent to it going in, and we have seen earlier that Mr Buxton has taken quite a practical and reasonable approach to not making applications if they can be avoided. In this case he was simply driven to it by the Secretary of State's refusal to let the document in.
272. At (e) --
273. SIR MICHAEL HARRISON: On that case you would not have expected Mitting J to have said defendant's costs in the case, would you? It sounds as if you are saying the Secretary was unreasonable in making it go to a hearing.
274. MR ZWART: My Lord, I have my note which we will turn to shortly, if I can deal with that point. There was a debate over costs and it was going to be costs in the case and it was only by further pressing that it became the defendant's costs in the case. We can go to that in a moment.
275. Under (e) the first defendant says that they were obliged to be represented at that application but of course we would say that the first defendant was a victim of its own action in not consenting to the document going in. You cannot have it both ways.
276. At (f) it is said that Mr Jay informed the court that the statement was highly relevant, would aid the judge hearing the claim and be used as a speaking note. Well, in our skeleton, my Lord, that is what Mr Jay said. It was highly relevant. It was an aid to the judge, he said, and it was effectively a speaking note, which we will come to.
277. At (g), in respect of causation, it was only thereafter that the first defendant counsel spent time considering the document. That is where the election came in. In fact it was a supplementary skeleton rather than a witness statement --
278. SIR MICHAEL HARRISON: That is when the election came?
279. MR ZWART: Yes.
280. SIR MICHAEL HARRISON: What do you mean by that?
281. MR ZWART: What the Secretary of State basically says is that they were driven to unnecessary costs because of the submission of this document, but in fact they were necessary costs because it was a supplementary skeleton, and they said in court that they could deal with it when we were before Mitting J. They were also given permission to produce a further skeleton if they wanted to but they chose not to.
282. SIR MICHAEL HARRISON: I just have to ask you to say that again. I am not quite following you. Just try once more.
283. MR ZWART: My Lord, it is said at (g) that the first defendant's solicitors and counsel spent time considering the witness statement, taking instructions and preparing their case on that basis. Firstly, it was not a witness statement, it was a skeleton, as was spelled out by Mitting J in about the first three seconds of the hearing. Secondly, it was accepted at that hearing by the Secretary of State that it was a skeleton and that it could be dealt with on that basis. One would therefore expect it to be dealt with. Thirdly, permission was given to put in further skeletons if desired. Fourthly, what the Secretary of State seems to be saying is that they had to consider this as a witness statement when in fact it was a supplementary skeleton. They did not need the solicitor input they say they did. They have chosen to run off and treat it as that when they were told by the court that it was not. In fact they should have treated this as a skeleton.
284. Now, at (h), somewhat surprisingly, it is alleged that there was no reliance on this supplementary skeleton at all during the hearing. We will go to the document in a moment, my Lord, and in fact Mr Jay did rely on this document and extensively so. He sets out in our skeleton his practice of advocacy, that he never relies upon the skeletons drafted by any other party. He has helpfully provided his notes to me to illustrate that point. In fact, I am departing slightly from our joint skeleton in making these submissions in a more detailed manner as an example of the same process. Then we have already dealt with tardiness of it.
285. Now, my Lord, if we can just turn up the document that went in. I could go through it at length. What I have done is essentially to put a marker down by each paragraph where express oral reference was made to those matters by Mr Jay. Would it be of assistance for me to go through the paragraph numbers for you to make a list?
286. SIR MICHAEL HARRISON: You had better identify them in the document, please.
287. MR ZWART: Very well. You will see at paragraph 3, for example, the bottom four sentences:

"The statement ties together complex factual material to assist the court in understanding the nature of the development granted planning permission and nature of environmental concerns."

288. That is not vexatious and it is not designed to harass. It seeks to advance the case and resolution by distilling down 1600 pages into some sort of order. You will then see a title called "The Unique Nature of the Proposal", and at paragraph 6 you will see the terms of the planning permission referenced at CB 87, to which Mr Jay referred.
289. Over the page, my Lord, you will see at paragraph 12 "The genesis of the indicative waste list approach", and you will see over the page references to Table 13.1 "Indicative Waste Streams". You will see at paragraph 15 references to Waste Directive Annex II compounds, and the hazardous waste properties at the bottom of that paragraph. Not only were these referred to by Mr Jay but his copy of the documents has his red scribble all over it. Likewise, paragraph 16, reference to Regulation 31; remember, that was referred to. Likewise paragraph 17, the draft decision-making tree criteria; that was referred to. Likewise, paragraph 18, planning condition (xiv), delegated powers. Likewise, paragraph 19, the temporary storage of waste provision that was conceded.
290. You will see over the page, for example, at paragraph 25, September 2001, the reference to updating environmental statement with further information, over the page. You will see at paragraph 26(a) classification of sites into hazardous, according to the type of waste they received, which was in issue. Paragraph 30, there is a reference to the developer making an IPPC application and a permit for a waste disposal by landfill. Again, my Lord, you will see all the scribbles of Mr Jay all over this document where he has been tying the submissions together from it.
291. You will see references to Mr Kent and RAMP, which spelled out the lockers (?) point which Ms Lieven seems to have potentially missed in her submissions. You will see at paragraph 33 the reference to the impossibility of assessing the waste. The letter written by Mr Kent in paragraph 34, likewise. You will remember Mr Jay's point about RAMP having a leitmotif of absence of waste streams, and you see at paragraphs 35, 36 and 38 that leitmotif spelled out, and again Mr Jay's red scrawls on those pages; likewise at paragraph 39.
292. Then, my Lord, under a heading of the "waste facility whose waste has not been the subject of the requisite risk assessment". That was plainly the issue in the case and required setting out of what the scheme was. Now, a lot of this part basically reproduced with references simply evidence that is in the core bundle. So, for example, the reference to the UK waste classification scheme gives detailed paragraph references to the environmental statement or the proofs of evidence. You will recall, my Lord, Mr Jay's point about the European waste catalogue at paragraph 42 -- mention is made of that -- and the link with the physical suitability of the site which you mentioned this morning, paragraphs 43 and 44. The issue about the qualitative risk test, paragraph 45. Over the page, and the key point that there is a link between the source term hazard waste type identification and the consequential risk assessment upon which it is based.
293. Now, the next heading, my Lord, deals with the Environment Agency's stance. Again we see here condition (xiv), the delegation. We see their general approach and we see the difference between the UK waste clarification scheme and the European waste scheme which Mr Jay highlighted. We see there at paragraph 53 reference to the EWC, and again we see further examples of his red underlining and asterisks in the margin.
294. We see at paragraph 54 a reference there to CB 323 para 5.6. That is recording the evidence in the core bundle on the point. Likewise, the European Waste Catalogue, reference is given there to what we submitted was the particularity of the waste, and you will see there, my Lord, that examples are given for comparative purports of a type of waste coupled with hazardous properties, for example, PCB or something containing a dangerous substance in addition to it being a waste.
295. You will recall Mr Jay saying that one had to show positive data, and at paragraph 56, the developer in this case should have identified positively what should be there. So there there is an indicative list. You see at paragraph 57 the reference to the indicative list; paragraph 58, reliance on the indicative list; paragraph 59, the known toxicology reference; paragraph 60, the conditionality of Table 13.1; paragraph 62, the HML hazard rating. Again, Mr Jay's red lines are all over these pages. Paragraph 63, the confining of the assessment to any three major waste types; paragraph 65, the expectation that one could identify the environmental hazard of the waste going in; paragraph 67, the issue about broader and worse case, and the fact that this issue did not cover the waste in fact assessed because there were only three; paragraph 68, the quantum point which the Secretary of State misunderstood. The point there was not the point of all of the waste, but the quantum of each specific type of waste that was going in, and Mr Jay made that good in his reply.
296. Over the page, my Lord, you will see Mr Robinson's evidence. That basically was the background context to why one should have high risk and medium or lower risk, and again, Mr Jay's notes were all over that page. Likewise, at page 315, my Lord, and you will see at paragraph 75 that there was a review of the Special Waste Regulations which, it was submitted, essentially put at large the UK waste list.
297. Likewise, my Lord, at paragraph 77 there is reference to the EA website because we were in a very complicated area on the facts, and that spelled out what hazardous waste is. You will remember the reference of Mr Jay to an asterisk in the waste catalogue and the last sentence of paragraph 79. Paragraph 81, we see there the waste planning authority and its role that was referred to by Mr Jay on the first day.
298. My Lord, at page 318 you will see at paragraph 84 the deferring, we contended impermissibly, of the identification and specific risk assessment for each waste type by the Environment Agency, and the conditionality of the assessments undertaken there to date. Specific references are then given as an aide memoire to find evidence. You will see at paragraph 87 the transitional point between the Waste Management Licensing Regime being replaced by the IPPC regime.
299. Then you will see at paragraph 89, for example, again the prospective consideration by the Environment Agency of matters which we said ought to have been considered under Article 5 and Article 6 of the EIA Directive. That was plainly in argument. Mr Jay also made reference to the EA being a Rule 6 party, and you will see at paragraph 92 they were going to give evidence on physical suitability, on sustainability and environmental impact, and subsidence, and those were all matters which were touched upon by Mr Jay in the Inspector's report at the first page where he set out the matters to be addressed.
300. Importantly, at paragraph 93 we contended that the May 2003 letter in which it is said by the Environment Agency after the event that the initial PPC application had inadequately defined waste types, risk assessment and the safety case. Again, my Lord, the rest of the page has scribbles by Mr Jay, for example, at paragraph 96, "BPEO and EA finding itself are hampered".
301. Over the page, my Lord, at 101 the developer placed reliance upon the safeguards of other legislation. That was plainly in issue because we said the surrogate was impermissible. A further reference at 104 to the Environment Agency saying that the application before the inquiry inadequately defined waste types, risk assessment and the safety case.
302. Because we were then dealing, my Lord, with the process of risk assessment and the process of paragraph 3 Part II Schedule 4 of the EIA Regulations and the absence, we contended, of the data, we set out at 106 -- we see there at (a) "Stage 1: Hazard Identification". That is the data point. Then at page 109 we see identification of hazards, having a bearing on credibility of the final output. Again, that is why Mr Jay contended that there was a fundamental flaw.
303. You will see at paragraph 112 the quote from Mr Lucas' evidence that identification of waste types is a fundamental point. You will see over the page at paragraph 113 the case as it was put: stage 1 is simply absent, and therefore there was a consequential impact on the environmental risk assessment. The point made about validated data, my Lord, at paragraphs 114 to 115, which Mr Jay put to you and you picked up on as being the central issue in the case.
304. Then at paragraph 120, the qualitative assessment was flawed because there was no definitive material. Paragraph 121, the point about detectors in condition (vii)(a) deferring until after the grant of the scheme of monitoring of gas. Paragraph 124, you will recall the strange conclusion that we contended the alleged lack of data meant that no proper conclusion had been formed in respect of material exposed to water generating gas. It was nevertheless described as minimal. You will recall Mr Jay speaking to that. Then at 134, just as an example, of course there were other decision makers engaged in this process but on analysis of the evidence it was clear, at least in Mr Jay's view, that the PPC regime had been used as a surrogate by the Environment Agency.
305. Then we go to the conclusions of the Inspector at paragraph 138. It is taking into account mitigation measures. A key issue is physical suitability of the site; risk assessment; sustainability and environmental impact. Paragraph 139, the conditional basis for this conclusion on a hazard to life and limb, on a further control, the IPPC regime, which was obviously after the event of granting planning permission, we contended. The basis of the Secretary of State's decision at paragraph 141 on that conclusion, likewise at paragraph 142.
306. Then, my Lord, there is, apart from further scribbles and asterisks by Mr Jay in respect of paragraph 143, about the reconsideration of the technical report, you will see there is a title "The risk assessment undertaken", and at paragraph 147 it is said the approach the EA and others to consideration of risk at the inquiry was wrong. There is the issue of the surrogate.
307. Then, my Lord, essentially the regime, as Mr Jay proceeded to take you through, at (a) through to 148, page 332, which sets out the interrelationship between the EIA and the PPC regimes, and use of the surrogate of the IPPC for the EIA we contended was unlawful. At 149 Mr Jay, you will remember, noted that:

"The error of all decision makers in this planning application was to consider the new IPPC procedural regime as a surrogate for EIA assessment."

308. At paragraph 150 we see "Deferment of consideration of Mitigation measures", and there is the evidence there set out that we required a monitoring system because of potential asphyxiation and explosive gases. That engendered itself in the condition. Paragraph 155, that was in Grampian form. Page 335, my Lord, at paragraph 159, condition (xiv), this was the delegation to the site chemist and whether there were parameters essentially contained. Again, there are extracts from the evidence which meets that.
309. Now, at page 337, my Lord, you will recall that there is a heading there entitled "Inadequate provision for storage of waste". Mr Jay conceded that he took on board Mr Price Lewis' points and therefore that was not taken further. There are, I think, three or four pages of that. Then the practical benefit, at page 342, arising from quashing the decision will again --
310. SIR MICHAEL HARRISON: Where are you now?
311. MR ZWART: Page 342, my Lord. Paragraph 207, the practical benefits of quashing the decision.
312. SIR MICHAEL HARRISON: Yes.
313. MR ZWART: That in effect is going to the "does it make a difference" test under section 288 of the Planning Act, and Mr Jay did not refer to that but that is a matter essential for the advocacy as to whether he needed to have spelled that out.
314. What is clear from the above is that not only did this assist in resolving the case because an issue was not pursued in respect of the condition, and the nature of advocacy of temporary storage, but, as Mr Jay said in our joint skeleton, he has essentially distilled that document down into about 20-odd pages of speaking notes, put the whole lot in a clip, together with various other skeletons, and submitted the case to the court. That is why in reality the Secretary of State is criticising his advocacy style.
315. What it enabled him to do, and therefore to assist the court, was to go through quite detailed cross-references on the primary documents with some speed and with quite considerable care. If that is not advancing the case ... Now, my Lord, I hope that deals with that document.
316. SIR MICHAEL HARRISON: Yes. Anything else you want to say?
317. MR ZWART: Yes, my Lord.
318. SIR MICHAEL HARRISON: The quantum, you wanted to talk about, did you not?
319. MR ZWART: Yes, if it is contentious I do have copies of my notes from the application before Mitting J. The short point there really is that it was spelled out by Mr Jay to the judge there that this document did not raise any new issues. The reason for documents being appended to it was simply because they were exhibited to it. They were public documents. The judge recognised that they could have been put in anyway. It was the form that was chosen for that. There was opportunity given to put in further skeletons.
320. SIR MICHAEL HARRISON: Yes, you are quite right. They are public documents, I think.
321. MR ZWART: If I can quote the judge, he said it is a guide for the judge to navigate through --
322. SIR MICHAEL HARRISON: One moment.
323. MR ZWART: My Lord, the judge essentially said that the approach by the Secretary of State was somewhat technical because it was a supplementary skeleton. It could be allowed in, in any event, albeit that it was two days late. What Mr Jay said was that we accept, as the Buxton email of 9/11/04, that this is in the nature of a submission. The judge said "How is it that that came about?" Mr Jay said "I came in between 3rd and 9th November 2004". The judge said "There was a change of counsel" and Mr Jay said "Yes". The view was taken that it could be dealt with by a witness statement. The judge said it was not helpful to say that there was no new skeleton and then do it by witness statement, and Mr Jay said "I agree". He then said "These are not new points; they are illustrative". So, for example, instead of an indicative list, you have a definitive list. Then he was asked by what reference these points related to the claim form and Mr Jay said that they related to points 1, 2 and 3 of the claim form. The judge took that on board. What Mr Jay said was that in response to the judge recognising that this was a pure question of law, he said "Yes, and I will need to put in the factual substrata. Therefore we respectfully ask for an order that the witness statement is described as a supplementary skeleton. We will change the title. I would be less keen to change the pagination. If permission is required for the exhibits, and I would say it is, then we will do that".
324. There was an issue over co-disposal and he said that the issues are illustrative because the analysis has been at all times placed on data to be criticised. The judge said essentially that you do not seek to go outside the five grounds of claim, and it was accepted that there were not new grounds, and the judge said on this basis the witness statement stands as a supplementary skeleton, and with reluctance it does not appear to be a skeleton at all but now, as it has been explained, it does not raise freestanding issues. It serves the five grounds. It would serve no useful purpose preventing the first and second defendant and the court from having the material, and the judge said "If there are further skeletons they are required by 4 pm on Friday".
325. Mr Jay then said that the Secretary of State's approach to an application for costs personally was rather aggressive. An email had been sent to the Secretary of State saying it was not new evidence, it was simply charting a course. It is only two days later. There was an unfortunate mess-up in the court over timetabling because it was 7th, and that was a Sunday. He said "It is not a useless document as I will be relying on it". It is plain he did rely on it.
326. My Lord, those are my submissions. With the greatest respect, the first defendant's application is not made out.
327. SIR MICHAEL HARRISON: Yes. Is there anything you want to say on quantum? Having seen the great amount of detail now, are you content with the quantum?
328. MR ZWART: My Lord, on quantum I am instructed that Mr Mertcan, if I have pronounced his name properly, was previously charging out at £160 an hour in early 2004 -- for example, in the case of Richardson that went to the House of Lords -- and for some reason he is now being charged out at £200 an hour, which seems somewhat excessive. So, other than that, I have nothing else to add.
329. SIR MICHAEL HARRISON: I see. Thank you. Yes, Ms Lieven, is there anything you want to say in reply?
330. MS LIEVEN: Well, my Lord, I do not want to spend more time than is strictly necessary. Can I just deal with two general points on liability? First of all, in terms of the bulk of my learned friend's submissions about his use of the document in question, in my submission all those submissions go to is what I said when making this application, which is that the document may have been of use to Mr Jay -- and indeed Mr Jay's suggestion in his second skeleton argument is that it was of use -- but what is clear from Mr Zwart's submissions is that the document was a briefing note for counsel.
331. We already had in this case a 35-page skeleton argument from Mr Clayton and Mr Zwart. It appears -- although one clearly cannot go behind legal professional privilege here -- that this document was not drafted by Mr Jay. It was not Mr Jay's skeleton argument. So what it becomes in truth is Mr Buxton's skeleton argument which Mr Jay used to a degree in his submissions. But, my Lord, all those submissions about this paragraph and that paragraph had some relevance; they may have had some relevance but in my submission they did not assist this case in terms of either those on my side or your Lordship being in the least bit assisted by a third long, complex and very unclear document which had to be read, digested and dealt with.
332. Your Lordship will recall, as we say in our skeleton on this application, the test for unreasonable behaviour is behaviour which is vexatious or designed to harass the other side rather than to advance the resolution of the case. It makes no different that the conduct is the product of excessive zeal and not improper motive. So the fact that Mr Buxton may have hoped that this document would have helped somebody is really neither here nor there. The question is whether it was properly put in and served upon the Secretary of State and the court, and thereby whether described as a skeleton or a witness statement makes no odds. It had to be dealt with.
333. SIR MICHAEL HARRISON: How do you put it in terms of your paragraph 16 you were just referring to? "Vexatious" or "designed to harass"?
334. MS LIEVEN: My Lord, I say the document was vexatious. "Designed to harass" appears on its words to import some intention and I have no evidence that Mr Buxton intended to harass the Secretary of State. He may or may not have done so. I cannot comment on that. But, my Lord, the document was vexatious. In circumstances where there was already a lengthy skeleton argument, where the document on its face could not be possibly be described as assisting the case and where, as it turned out, it did not advance the case at all, in my submission it plainly was a vexatious document. It involved the parties and the court in spending an excessively large amount of time having to deal with a document which, at the end of the day, was of no assistance.
335. My Lord, an illustration of that is the approach that the claimant sought to take to the new points raised in that document. They did not withdraw those points in front of Mitting J. They said they were illustrative of their other points.
336. SIR MICHAEL HARRISON: What were the new points?
337. MS LIEVEN: My Lord, the two that spring to mind are co-disposal and the plan at GH6. I am told by Ms Patry that she asked on a number of occasions in what way does co-disposal fall within your existing case, and all the answer she got was that it went to grounds 1, 2 and 3. So we had to deal with it. It may not have been a freestanding new point but it had to be dealt with because it was utterly unclear to us whether Mr Jay was going to turn up and place weight on those points at the hearing or whether, as actually happened, they were not mentioned at all. So what we had was in effect an additional skeleton argument from, it appears, Mr Buxton that was simply vexatious. It did not advance the case.
338. SIR MICHAEL HARRISON: Did it raise any points additional to what was in the existing skeleton argument?
339. MS LIEVEN: Yes, my Lord, it did. Well, it is very, very difficult to tell on some of the points whether they were within existing grounds or not, but the two obvious examples were that of what was described as the co-disposal --
340. SIR MICHAEL HARRISON: Those two you mentioned, yes.
341. MS LIEVEN: Those two I have mentioned. Those were, as far as we could see, not raised in the claim before. Everything else -- to the degree that Ms Patry and I were able to understand these two documents -- appeared to be raised before, albeit sometimes in slightly different terms.
342. My Lord, the point that Mr Zwart makes that a number of the paragraphs in this document do relate to things that Mr Jay later said, my Lord, that does not assist him at all. It would be absolutely astonishing if he managed to put in a 44-page document that did not refer to the primary material. Of course it did. But it did not in any way give a path through the documents that allowed one to speed up the preparation of the case. Certainly it was not my experience or Ms Patry's or, I suspect, the court's.
343. My Lord, the only other general issue I want to deal with is what happened before Mitting J. As I have said, what was said there, as Mr Zwart agrees, is that all this material was illustrative of points that had been made before. So the arguments were not being withdrawn; it was not being said that the Secretary of State did not need to be concerned about them, and in those circumstances we simply had to deal with the points in there and be in a position to do so.
344. Now, it is suggested, my Lord, that somehow the Secretary of State elected at that point, after the hearing before Mitting J, to incur further costs. The only way I can understand that point was a suggestion that whereas a solicitor would be expected to read a witness statement he would not have been expected to read a skeleton argument, and, my Lord, that is complete nonsense. The fact that after Mitting J's pressure it had been turned into a skeleton argument did not mean that either those instructing me or myself did not have to read it with the same level of care.
345. So far as the suggestion that that document came in so late because of funding problems, it is perhaps worth noting an order made by Collins J on 30th March 2004 in this case that unless the evidence to be relied on is served by 12 noon on Friday, 2nd April, the claim will be struck out. That was way back in March, and although there may be, and often are, problems with Legal Services funding in such cases, there is absolutely no explanation as to why whatever funding difficulties there were in February, March and April meant that this document could only be served two weeks before the trial. Indeed, if there were funding difficulties, then it seems extraordinary that a document of this length and complexity was drawn up in these circumstances.
346. My Lord, my learned friend made a lot of other points but I do not think it is appropriate at this stage for me to go through each one in detail. Those are the thrust of my submissions. So far as the one point on quantum is concerned, my instructions are that since April of 2004 Mr Mertcan's grade in the Treasury Solicitors is now charged at £200 an hour rather than the previous grade, and the suggestion that that is excessive, my Lord, comes close to being offensive when one considers the charge-out rate of private sector solicitors.
347. SIR MICHAEL HARRISON: Thank you very much. On that last point, Mr Zwart, you have been told that that is the reason why it is £200. That grade is now being charged at that rate. You do not seek to dispute that?
348. MR ZWART: My Lord, it was not meant to be offensive.
349. SIR MICHAEL HARRISON: Answer my question, will you? We have been told by a solicitor that the grade is now charged out at that rate. Do you dispute that? You raised a point, perfectly properly. You have had the answer to it. I want to know whether you are persisting in the point.
350. MR ZWART: I am instructed, my Lord, that if the explanation is simply because the grade has gone up from £160 to £200 an hour, then that is somewhat beyond inflationary measures. Fair enough, if he is a grade A solicitor, but that is not what was said.
351. SIR MICHAEL HARRISON: Right. Thank you.
352. MR ZWART: My Lord, I hesitate to come back, but if I may do so on three points.
353. SIR MICHAEL HARRISON: What points are those?
354. MR ZWART: Points of clarification, if I may.
355. SIR MICHAEL HARRISON: You have no right to a further reply.
356. MR ZWART: I appreciate that, my Lord.
357. SIR MICHAEL HARRISON: If there is some point that is factually wrong, or something like that --
358. MR ZWART: Precisely.
359. SIR MICHAEL HARRISON: Right, well, quickly, let us have it.
360. MR ZWART: It was alleged by Ms Lieven that there was pressure from Mitting J that the document be a skeleton. That plainly was not so. He spelled this out in the first --
361. SIR MICHAEL HARRISON: Quite honestly, I am not very interested in that part of it. Thank you very much.
362. This is an application by the first defendant for a wasted costs order against the claimant's solicitor, Mr Buxton, that he should personally pay the costs of the hearing before Mitting J on 16th November 2004 and the costs of dealing with the witness statement that was served on 5th November 2004 by Mr Buxton.
363. The short history is that on 26th October Sullivan J gave permission for a further updated skeleton to be served because there was going to be a change in leading counsel, but no such supplementary skeleton was received and I am told that the Treasury Solicitors were swiftly told that it was not going to be served. Nevertheless, on 5th November 2004 came a witness statement of Mr Buxton, not a skeleton, and it runs to some 44 pages. Ms Lieven has described it as lengthy, detailed and with lengthy legal submissions, containing some issues which had not been raised before. It certainly is detailed and does contain lengthy submissions. It is a 44-page document.
364. As a result of receiving that document, no application having been made for leave to serve the witness statement on the first defendant, the first defendant invited the claimant to make such an application, which they did, and that was the application which came before Mitting J on 16th November.
365. At that hearing Mr Jay QC described it as an essential document which would aid the judge to understand the complex legal material and suggested that he would use it as a detailed speaking note which, according to Mr Zwart who has appeared on behalf of the claimant, was what was done by Mr Jay. There is some dispute over precisely what was said at the meeting before Mitting J, but anyway he ordered that it should stand as a supplementary skeleton argument because it was dealing with matters of law rather than fact, and that is what happened.
366. What is submitted on behalf of the first defendant is that there was no mention before Sullivan J of a further witness statement to be served. Nevertheless, after that, without notice, the witness statement was served, being a witness statement and not a skeleton, just two days before the first defendant had to submit his skeleton, and it was of the nature which I have just mentioned. It was only at the first defendant's insistence that leave was sought to introduce it and of course, that proper step then eventually having been taken, the first defendant had to appear through counsel at that hearing.
367. What is said on behalf of the first defendant is that a great deal of time had to be spent in considering that document. There had to be conference and then there had to be instructions taken on various aspects of it, but then that document was not referred to at all at the hearing. The first defendant is aggrieved, and not surprisingly so in my view, that all that time and trouble had been taken in preparing to deal with the matters raised in that document when it was never referred to at all by the claimant at the hearing.
368. Mr Zwart makes the point that a number of the matters contained in the witness statement were in fact dealt with by Mr Jay at the hearing. That is no doubt right. I have read the document and I have been taken through it again today by Mr Zwart. One certainly does find matters in that document which were matters referred to by Mr Jay. As Ms Lieven said, it would be surprising if that were to the contrary. But the point is that this was a wide-ranging document, showing in my view absolutely no judgment as to what was important and what was not important, and which was a point that was definitely going to be elaborated on at the hearing.
369. I think that Ms Lieven is absolutely right when she describes it as a briefing note for counsel. That is in effect consistent with what Mr Zwart said it was used for. It was found, it was said, to be very useful by Mr Jay in formulating his submissions. I have no doubt that is true, but that does not mean it was necessary to disseminate it to the other side in the way that it was. All that needed to have been done was for that to be kept to Mr Jay and used by him for those purposes, but having been given to the other side in the manner that I have described, it is, I think, not at all surprising that a great deal of work was carried out by the first defendant in order to try to meet numerous matters raised in that document. It shows a lack of judgment in failing to distil matters before putting them into the arena, and that approach involves a lot of work to others and so a lot of costs.
370. Mr Buxton is a very experienced solicitor in this field and knows a great deal about the subject matter, but what should not be done is for all that detailed knowledge to be displayed in this way in relation to this case without discernment as to which points are the ones that actually are going to be pursued. It involves what I would call a scatter gun approach with pellets being fired hither and thither from one barrel. That is in my view a vexatious approach in the circumstances of this case because it was wholly unnecessary. It could have been just given to Mr Jay and used by him, but it has resulted in a great deal of unnecessary expense on behalf of the Secretary of State.
371. I bear in mind that I should approach this matter by applying three tests. Firstly, has the legal representative of whom the complaint has been made acted improperly, unreasonably or negligently? For the reasons that I have explained, I think it was unreasonable behaviour to have put this document into the public domain and to have caused all that work to be carried out when there was no reference to the document at all by the claimant in the proceedings, simply reliance upon it by the claimant's counsel as a briefing note. Secondly, if so, did such conduct cause the applicant to incur unnecessary costs? I have absolutely no doubt that it did. The existence of that document was the sole reason for that extra work that was carried out. The third criterion is, if so, is it just in all the circumstances to order the legal representative to compensate the applicant for the whole or part of the relevant costs? In my view, it is just to do so.
372. Therefore, for those reasons, I do think it is right that a wasted costs order should be made in relation to the hearing before Mitting J and for the costs involved in carrying out the extra work.
373. So far as the costs before Mitting J are concerned, it seems to me appropriate to deal with that by way of varying his order to say that those costs of the first defendant incurred in relation to that hearing should be paid by Mr Buxton. So far as the other aspect of the costs then, that is a straight order that the costs incurred by the first defendant in meeting this document should be paid by Mr Buxton.
374. So far as the quantum is concerned, the total amount is £3,352. The only point made on quantum by Mr Zwart is that Mr Mertcan, the solicitor involved, is charging at a rate of £200 an hour, whereas earlier in the year he was charging at £160 an hour. I have been informed that in April of this year the rate went up for his grade to £200 an hour. I have no reason to doubt that that was so and I accept that it is so. The only remaining point by Mr Zwart is that that increase is above the rate of inflation. I find that an extraordinary comment to make. I find that the rate of £200 is perfectly appropriate and therefore I assess the wasted costs in the sum of £3,352.
375. Now, Ms Lieven, that relates to ...?
376. MS LIEVEN: That is everything, my Lord.
377. SIR MICHAEL HARRISON: That is everything?
378. MS LIEVEN: That is everything.
379. SIR MICHAEL HARRISON: Whether it is necessary for technical reasons to have to attribute some to the hearing before Mitting J, because you are varying an order and there is one order made there and another order being made in relation to the work, I do not know because that sum applies to both. I do not know how it is appropriate to deal with that.
380. MS LIEVEN: I would not have thought so, my Lord, because we are not asking for summary assessment for the rest of our costs, so we do not have to take the hearing in front of Mitting J out of the rest of the costs at this stage. I would have thought that the order your Lordship has made is sufficient.
381. SIR MICHAEL HARRISON: Yes.
382. MS LIEVEN: I doubt there will be any other problems because my learned friend is legally aided and so it is unlikely the rest of the costs ever will be assessed.
383. SIR MICHAEL HARRISON: Yes, of course.
384. MS LIEVEN: If there should be a problem we can apply.
385. SIR MICHAEL HARRISON: So my order is that there be a wasted costs order against Mr Buxton in the sum of £3,352.
386. MS LIEVEN: I am very grateful, my Lord. Can I thank your Lordship for sitting early for my convenience? I am very grateful for that.
387. MR PRICE LEWIS: I am grateful too. Thank you.