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
		22nd March 2005

1. MR JUSTICE SULLIVAN: In these proceedings the claimant, who has appeared in person, challenges the second defendant's decision to confirm the North West Development Agency (Kingsway Business Park, Rochdale) Compulsory Purchase Order 2002 ("the Order") insofar as the Order affects his property, Dig Gate Barn, Dig Gate Lane, Milnrow ("the property"). The second defendant's decision letter confirming the Order is dated 5th October 2004 ("the decision letter"). In another decision letter of the same date the First Secretary of State and the Secretary of State for Transport decided to make certain related highway schemes and Orders ("the highways decision letter").
2. The property is on the south side of the M62. On 19th December 1999 planning permissions were granted for the construction of the Kingsway Business Park on the other side of the motorway and for certain related highway works. These highway alterations necessitated the closure of an underpass which takes footpath 358 under the M62. The business park covers an area of over 170 hectares and is in numerous different ownerships. In order to facilitate the development of the business park, the first defendant made the Order on 10th May 2002. The majority of the Order land is on the north side of the motorway, but the first defendant included a small number of plots on the south side of the motorway to enable footpath 358 to be re-routed from the underpass portal south-westwards alongside the motorway to a new bridge over the motorway, which is to be constructed as part of the scheme and which will carry footpath 336 over the motorway.
3. The claimant owns, or claims possessory title to, three of those plots on the south side of the motorway: plot numbers 69, 70 and 71, which the first defendant included in the Order for the purpose of constructing the replacement footpath. There were objections to the Order and to the related highway schemes and Orders, and an Inspector, Mr Linscott, held a public local inquiry into the objections to all of the Orders between 24th June and 24th September 2003. The claimant objected to the Order and appeared at the inquiry.
4. In January 2004 the Inspector submitted three separate reports: one relating to the Order submitted to the second defendant, and the other two reports, in relation to the highway schemes and Orders, submitted to the First Secretary of State and the Secretary of State for Transport as appropriate. In his report into the objections to the Order ("the report") the Inspector set out the claimant's objections to the Order in paragraphs 137 to 146. The claimant does not take issue with the Inspector's summary of his case as he presented it at the inquiry.
5. In summary, the claimant did not object to the acquisition of his land for a replacement footpath in principle, rather he was arguing that too much land was being sought by the first defendant. Amongst other matters the claimant disputed the need for a hedgerow to be provided alongside the replacement path and considered that a stockproof fence would be sufficient. A hedgerow was required by a condition in the planning permission that had been granted for the business park.
6. Having set out the claimant's objection, the Inspector recorded the first defendant's response in paragraphs 147 to 150. The Inspector's conclusions in respect of the claimant's objection are to be found in paragraphs 401 to 407 of his report. For present purposes, it is only necessary to read out paragraph 407:

"For the reasons set out above, I consider that the objection that excessive land (though not the principle of routing a path through the 'corridor' identified in the Order) should be upheld. The Order should thus be modified to limit the land-take to that which is necessary for the purposes of constructing a 1.3m wide path and establishing a suitable hedge, all on the basis of detailed survey and design."

7. The Inspector returned to this issue in his overall conclusions in paragraphs 563 to 565:

"563. Having regard to all of the above, I have found that, with one exception, on balance none of the objections from statutory and non-statutory parties outweigh what I regard as a compelling case made by the NWDA in the public interest for the confirmation it seeks of the CPO notices it has served. In reaching that finding I have had full regard to the rights afforded to those parties under the provisions of the Human Rights Act 1998 and the interference therein which the Order would entail.

"564. The single exception concerns the objection made by Mr Wainwright where I agree that, although the principle of a path generally on the route through his land identified by the Agency is crucial to the scheme, the proposed land-take would be excessive and has not been justified against the stern test in the Circular. This was the crux of the objector's argument and he did not suggest that a lesser land-take would be unacceptable to him. NWDA/WBD did not suggest that a modification of this nature (ie a reduced land-take rather than completely upholding the objection) would be likely to be seen as an adverse modification, prompting the invocation of the relevant clause in the Collaboration Agreement, nor would I regard that as likely.

"565. A number of objectors have not made specific reference to the First Protocol to the European Convention on Human Rights, I have nonetheless considered those rights. I am satisfied that the compulsory purchase of all of the outstanding interests in the site (other than in Mr Wainwright's case) is in the public interest and the steps taken by the acquiring authority in pursuing the CPO are proportionate to the objectives being pursued and do not conflict with the human rights of the objectors or any other person."

8. Accordingly the Inspector's recommendation was as follows:

"566. I recommend that only the objection made by Mr Wainwright be upheld (and that only to the extent that excessive land would be taken). In all other cases I recommend that the objections be rejected."

9. On 18th March 2004 the second defendant wrote to the parties stating that consideration had been given to the Inspector's report. The letter enclosed a copy of the report, and in paragraph 5 the second defendant stated that she agreed with the Inspector's conclusion in paragraph 407 of his report; see above. Paragraph 5 of the second defendant's letter continued:

"The Secretary of State agrees with the Inspector that the Order proposes the acquisition of more land than is required for the provision of the proposed path. However, although the Inspector has described in general terms what land might be required he has left it unclear as to how precisely the Order might be modified to reduce the land to that which is required. Therefore, NWDA and Mr Wainwright, to whom a copy of this letter is being sent, are hereby invited to submit views, either jointly or separately, on how plots 69, 70 and 71 might be modified in the Order and Order Map to accord with the Inspector's conclusion."

10. It is unnecessary to rehearse the details of the ensuing correspondence. In summary, the first defendant put forward proposals which it said met the Inspector's concerns. The claimant did not comment upon those proposals, but instead put forward an alternative route for a replacement footpath. The claimed advantages and benefits of that alternative route were set out in a letter from a chartered surveyor instructed by the claimant dated 13th May 2004. The first defendant responded, making the point that this alternative proposal had not been put forward at the inquiry and pointing out the practical consequences of an alteration to the route at such a late stage in the proceedings.
11. After a further exchange of correspondence between the parties, the second defendant issued her decision letter dated 5th October 2004. The relevant part of the decision letter, addressed to the first defendant's solicitors, is in these terms:

"8. With regard to plots 69, 70 and 71, in response to the letter of 18th March 2004 NWDA have provided a detailed appraisal of the line and width of the proposed footpath and related fence and hedge which they propose to provide on this land and, based on this, details of how the three plots might be modified to reduce the amount of land to be taken, as recommended by the inquiry Inspector. Mr Wainwright has not commented upon whether or not he agrees with NWDA's assessment nor has he provided an alternative solution as to how the plots might be modified. Instead he has proposed a completely new line for the proposed footpath, on different land, which he has suggested offers a better route to that one proposed and discussed at the inquiry. He questions too the need for a hedge and also suggested that it is unnecessary for NWDA to acquire full title to land to provide a footpath over it; it would be sufficient to acquire only a right over the land.

"9. You point out that the requirement to provide a hedge was explained fully at the inquiry. It is required by a condition attached to the planning permission granted by Rochdale Borough Council for the Kingsway Business Park development and is not a matter which is before the Secretary of State for consideration. You point out too that the diversion of footpath 358 over land in plots 69, 70 and 71 in the compulsory purchase order forms part of the package of proposals to deal with rights of way in connection with the development and was also discussed in detail at the inquiry. It would cause significant delay to the project to consider alternative proposals at this late stage.

"10. You dispute Mr Wainwright's suggestion that it is unnecessary to acquire full title to the land over which the diverted footpath is to run. You point to the report prepared by White Young Green, which you enclosed with your letter of 5th June, which makes clear that providing the footpath will involve construction and engineering works to lay out the footpath and to provide steps and ramped treads on steeper sections. In your view it would not be possible to carry out this work by acquiring only a right over the land, particularly having regard to the unsuccessful negotiations with Mr Wainwright over a number of years.

"11. With regard to the alternative route proposed by Mr Wainwright it is considered that this is not relevant to the question put to him in the letter of 18th March, which concerned only how plots 69, 70 and 71 in the compulsory purchase order might be modified to accord with the Inspector's recommendation in that respect. On this, it is considered that the information provided by NWDA provides a well argued basis to show how plots might be modified as recommended by the Inspector. It is considered, therefore, that the three plots should be modified as NWDA propose.

"12. It is considered that in view of the extent of the works required to be carried out to lay out and construct the diverted footpath and to provide the associated hedge in accordance with the planning permission granted for the Business Park Redevelopment, and to ensure the dedication of the footpath to the public it is necessary and in the public interest for NWDA to secure full title to the land. This will enable NWDA to implement the comprehensive package of proposals in respect of the rights of way affected by the Business Park development within a reasonable timescale and without delay. This is important since these constitute a crucial part of the Kingsway Business Park."

12. The issue of the replacement footpath was also considered in paragraphs 15 to 17 of the highways decision letter as follows:

"15. Firstly when stopping up a highway which includes footpaths the Secretary of State for Transport has a statutory duty to ensure that another reasonably convenient route is available or will be provided. Therefore it is important to note that a number of objectors were concerned about the diversion of footpath 358 because it was not regarded as a reasonably convenient route owing to its length. The route proposed by Mr Wainwright would be some 170 metres longer than the Highway Authority's published proposal when measured from the south portal of the closed subway to the point where it would meet footpath 336 before crossing the M62 at Dig Gate Bridge. Therefore in this respect Mr Wainwright's proposal does not offer any benefit over the published route, which the Inspector was satisfied offered a reasonably convenient alternative route.

"16. Secondly it is difficult to come to any firm conclusion on the costs of Mr Wainwright's proposal, as it has not been developed in sufficient detail and at this stage is little more than a line on a plan. To fully evaluate this proposal will take time and delay further the completion of the statutory procedure thereby affecting delivery of the overall development. Furthermore, if the Secretaries of States were minded to adopt this proposal at this late stage, it would require the published highway orders to be varied and readvertised. It may also require a new planning permission to establish the route and adjacent landowners and those who registered interest in the published proposals would then have to be consulted. The published environmental statement and agreed mitigation measures would also need to be reconsidered to reflect the amended proposal.

"17. The Secretaries of State have therefore decided for these reasons that on balance Mr Wainwright's proposal does not offer clear benefits over the published proposal that would fully justify the consequential delays to the overall scheme if accepted. Accordingly, the Secretaries of State have decided to accept the Inspector's recommendation to make the published side roads Order, thereby adopting the published proposals."

13. Following certain procedural directions, to which it is unnecessary to refer in detail, the claimant's challenge to the second defendant's decision is now proceeding as an application under section 23 of the Acquisition of Land Act 1981. That is the only basis upon which the Order can be challenged; see section 25 of the 1981 Act. It follows that the claimant must be able to point to some legal or procedural flaw in the decision letter.
14. Although the claimant made a number of points in his skeleton argument and in his oral submissions before me, his principal argument was that the Order was unnecessary in respect of his land because no replacement footpath was necessary. This was because there was in fact a connection between footpaths 358 and 336 via the existing footpath network. He acknowledged that using the existing footpath network in this way would involve a longer detour away from the motorway, but submitted that, insofar as it took walkers further away from the motorway, that could be seen as a positive advantage.
15. The problem with this submission is that it was never suggested to the Inspector or to the second defendant that no replacement footpath was required because the existing footpath network would suffice. The second defendant cannot sensibly be criticised for not considering this suggestion, which has emerged only within the last three weeks. The claimant submits that fresh evidence in respect of this alternative should be admitted and that it would be unreasonable for the court to decline to consider it.
16. I regret to have to say that the claimant entirely misunderstands the nature of these proceedings. This is not an appeal by way of re-hearing the merits from the second defendant's decision. If it was such an appeal, then, subject to strict safeguards, it might well be appropriate to admit certain categories of new evidence. This is a statutory challenge, in which the claimant must identify some legal or procedural flaw in the second defendant's decision to confirm the Order. A belated suggestion that there is or might be some better option which has not been put to the decision-taker does not raise any issue of law, much less does it identify any error of law on the part of the decision-taker. I realise that the claimant considers that this is most unfair, indeed he emphasised the importance of the requirements of natural justice. However, compulsory purchase orders affect many interests and Parliament has therefore recognised the need for finality once a compulsory purchase order has been made. Since objectors to a compulsory purchase order will have had an opportunity to put their case in full at a public inquiry, the requirements of natural justice, or fairness, will have been satisfied.
17. Moving on from the inquiry, there was no unfairness in the way in which the second defendant dealt with the post-inquiry correspondence. The parties were given ample opportunity to comment upon each other's submissions before the second defendant proceeded to reach a decision. Moreover, the decision letter addressed all of the important points that had been made in the post-inquiry correspondence.
18. That leads me on to the alternative route that was suggested by the claimant in that post-inquiry correspondence. The claimant contends that this first alternative suggestion would be a better route for the replacement footpath than the route proposed by the first defendant in the Order. The first defendant disagreed for the reasons set out in the correspondence. The fact that the second defendant agreed with the first defendant rather than the claimant does not raise any issue of law. The second defendant was entitled to form her own view as to whether or not it would be desirable to adopt the alternative that had been proposed by the claimant after the close of the inquiry. The claimant has not been able to identify any error of law in her consideration of that matter in paragraphs 8 to 11 of the decision letter.
19. Whether that alternative route offered any clear benefits over the published route in the Order was also considered in paragraphs 15 to 17 of the Highway's decision letter. I realise that the claimant disagrees with the views expressed in those paragraphs, but the Secretaries of State were entitled to conclude that, on balance, there were no clear benefits that would justify the inevitable delays to the overall scheme. That conclusion was preeminently a matter of planning judgment for the Secretaries of State.
20. The claimant also submitted that the first defendant had no power to make a compulsory purchase order for the purpose of providing a replacement footpath under section 20(1) of the Regional Development Agencies Act 1998. He contended that the Order should have been made under subsection (2). Section 20 of the 1988 Act is in these terms, so far as relevant:

"(1) A regional development agency may for its purposes, or for purposes incidental thereto, acquire land by agreement or, on being authorised to do so by the Secretary of State, compulsorily.

"(2) A regional development agency may, for those purposes, be authorised by the Secretary of State, by means of a compulsory purchase order, to acquire compulsorily such new rights over land as are specified in the order."

21. It will be noted that this argument was not raised by the claimant before the Inspector. The claimant made it clear in his submissions before me that, as a result of his subsequent researches, he was now contending that it was unnecessary for the first defendant to acquire the freehold of his property; it would have been sufficient for the first defendant merely to have acquired rights over his land.
22. The claimant did mention this point in the post-inquiry correspondence. In the concluding paragraph in his letter dated 12th June 2004 to the first defendant's solicitors (which was copied to the Secretary of State), he said this:

"It is not essential for the NWDA to purchase any land for the link footpath it requires for the Kingsway Development. The NWDA only needs to acquire a licence giving the public the right to use a designated area of land as a footpath. I was not able to present this alternative at the public enquiry as the information has only recently been passed to me and as such is new evidence."

23. The first defendant's solicitors replied on 25th June 2004 in a letter addressed to the second defendant:

"The only issue raised by Mr Wainwright which requires more detailed comment is his suggestion that the NWDA does not need to acquire the land but could simply proceed by acquiring a licence. This is not accepted for a number of reasons. Firstly, as the Report prepared by White Young Green enclosed with my letter of 5th June makes clear, there is a need to carry out construction works to lay out the new footpath together with the hedge and the fence, including engineering works to provide a series of steps and ramped treads at the steeper sections. The NWDA requires possession of the land in order to carry out these works. Land cannot be acquired temporarily in order to carry out works of this nature. Despite negotiation over a number of years with Mr Wainwright, agreement has not been possible in relation to this land and therefore it is absolutely necessary to take title to guarantee the carrying out of these works."

24. The letter continued by making the point that the diversion of footpath 358 formed part of the first defendant's comprehensive proposals to deal with the rights of way network across the whole of the business park site and it was essential that the new network should be provided within a reasonable timescale and in a proper and timely manner. It was further stated that, although alternative powers might be available, there would inevitably be delays if procedures had to be recommenced, and the point was made that these alternative procedures would simply duplicate the procedures that had already been carried out.
25. That issue between the claimant and the first defendant was addressed in paragraph 12 of the decision letter, which I have set out above. In the light of those representations, the second defendant was entitled to conclude that it was necessary for the first defendant to acquire full title to plots 69, 70 and 71 in order to provide this particular footpath. Again, the decision letter discloses no error of law, merely a judgment adverse to the claimant on the facts.
26. For the sake of completeness, it should be noted that, in his submissions before me, the claimant also mentioned certain other powers that are available to highway authorities, but since the first defendant is not a highway authority, those powers are not relevant. The question is whether the acquisition of land for this replacement footpath as a part, albeit a crucial part, of the overall business park proposal in the Inspector's view, with which the second defendant agreed, was within the first defendant's powers under section 20(1) of the 1998 Act. There can be only one answer to that question: yes.
27. I have considered the other matters raised by the claimant, including his belief that at some time in the future a slip road will be constructed on the south side of the motorway which will obliterate the replacement footpath. Since that matter was not raised with either the Inspector or with any of the Secretaries of State, it cannot possibly affect the lawfulness of the second defendant's decision. In addition, the claimant mentioned certain errors, as he saw them, in the Order schedule. Again this was a matter that was not raised with the Inspector. If the claimant is entitled to any rights in respect of other plots, for example by way of easements, then he will be entitled to compensation if those rights are interfered with. Considering compensation more generally, a matter to which the claimant did refer before the Inspector, I merely endorse the Inspector's view that that is a matter for the Lands Tribunal.
28. In summary, this application is not an opportunity for the claimant to reargue the merits of the Order on the basis of fresh evidence that was not presented to either the Inspector or the second defendant. He has identified no legal or procedural flaw in the second defendant's decision and it follows that this application must be dismissed.
29. MR WAINWRIGHT: My Lord, I am grateful. In those circumstances I do have an application for the second defendant's costs. I do not know whether your Lordship has had a copy of the statement of costs. My application is not only for costs, but also for summary assessment of them.
30. MR JUSTICE SULLIVAN: I have.
31. MR BROWN: My Lord, first of all, because Mr Wainwright is a litigant in person, can I deal with one small point on principle and then secondly on quantum. On principle can I hand up to your Lordship a copy of the letter that those instructing me wrote to Mr Wainwright immediately after the hearing last time, which in essence sought to summarise what we thought his arguments were, set out a brief response to them -- which is in essence the response which your Lordship sees in my skeleton argument -- and makes, albeit shortly, the point that we considered that there was no basis for the case.
32. If your Lordship goes to the conclusions at the end of that, you will see that we essentially suggested to him then that his case was misconceived, and that it misunderstood the powers of the court. But we did suggest to him that, if he was prepared to withdraw at that stage, we would, bearing in mind the relatively low amount of costs at that point, not seek any order for costs against him. But there was a clear warning given at that stage that if he chose to go ahead in spite of that, the costs of what were, at that stage, estimated to be between £7,500 and £10,000 would be likely, and that we would in those circumstances, were we to succeed, be looking to him for those, and I advised him that if there was any doubt about the consequence of that to take legal advice.
33. Now, for whatever reason, Mr Wainwright has not done that and he is now in the situation that he is in. We are here because we have had to be here.
34. MR JUSTICE SULLIVAN: Can I just understand it. The claim started off -- and this is why it is slightly the odd way around, and I kept having to remember who was the first defendant and the second defendant. The Secretary of State is the second defendant because she was not joined until the directions hearing, as I understand it.
35. MR BROWN: Yes, my Lord, we were present at the directions hearing having been put on notice that it was to be there.
36. MR JUSTICE SULLIVAN: And the first defendant was effectively saying to you, look you really must be here as the principal defendant, and so you turn up and then you get yourselves joined in as the second defendant. Right, so that is the background to that. I have not seen this letter obviously. This summarises the points that I have seen in your skeleton. May I just have a skim through. (Pause).
37. Yes, it makes the point. Up to then not too much by way of costs, at least as far as the Secretary of State is concerned, because he has not been involved, but then costs are going to start to go up and up.
38. MR BROWN: Which is indeed what has happened, because there have been, of course, the witness statement and then the costs of attendance today, my Lord.
39. My Lord, in terms of the amount, you have a schedule, and it does slightly exceed what was estimated in that letter. I have been asked by my instructing solicitor to amend the total to reflect the fact that we have not been in court today for quite as long as was estimated and, as a result, the total schedule comes down to £11,642.
40. That is more than you would be used to seeing for the Secretary of State for a hearing of this sort, I recognise. Having said that, in this case there has been an interlocutory hearing and there has also been the need to put in a witness statement. My Lord, I would ask for costs in that amount, or whatever proportion of it you think is reasonable in the circumstances, but I do submit that we should be entitled to a significant part of our costs, if nothing else because the claimant has been put on notice of his position, he has come and he has lost.
41. MR JUSTICE SULLIVAN: Yes. I think if you are going to make any application, Mr George, it might be sensible for you to make it now, and then we will hear what Mr Wainwright says about both of them together rather than having two bites of one cherry.
42. MR GEORGE: My Lord, may I pass up to your Lordship two cases which I have passed already to Mr Wainwright. (Handed). My Lord, my application is that the claimant should pay half of the first defendant's costs, and I hope your Lordship has the costs schedule which was put in by the first defendant. My Lord, that came to a grand total of £56,236.09 --
43. MR JUSTICE SULLIVAN: My eyebrows had raised upon looking at the Secretary of State's costs. They practically shot off my head and I have only just got them back again having looked at yours.
44. MR GEORGE: My Lord, I will come back in a moment to some of those --
45. MR JUSTICE SULLIVAN: I can understand in part why it happened. But, anyway, yes?
46. MR GEORGE: The summary assessment is in the amount of half of those costs. If your Lordship would find it convenient to round it down to £28,000, that would be wholly acceptable.
47. The starting point is that we accept that there is no rule that in these circumstances we, as what would normally be a second defendant, would be entitled to costs, but likewise there is no rule to the contrary that we are never entitled; the true position being that stated in the Bolton case. Although, of course, that was not a compulsory purchase case, one does remember that Lord Lloyd specifically said that their Lordships were giving guidance on Section 288, which was a matter where there was a dispute. But what he says at page 1178 letter F is:

"As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court ..."

48. MR JUSTICE SULLIVAN: Well, yes, I think part of the difficulty with this is that it rather assumes that the claimant or the appellant will identify the proper respondent at the start, so you do not, as it were, have someone who really is not the real respondent, or who should have been the first respondent, identified and having to effectively roll along and get things in order to get the right respondent in front of the court. That is one of the problems of this particular case.
49. MR GEORGE: I am going to come back to that matter in a moment, if I may. Just staying on page 1178, proposition (1) concerns only the Secretary of State. Proposition (2), a developer is not normally entitled unless there is either a separate issue or that there is an interest which requires separate representation. Provision (3) is rather important, that it is much easier to get your costs at first instance than thereafter and, of course, that is where we are. Of course, on the facts, over the page at 1179, it was a case where a developer second respondent got his entire costs in the House of Lords, actually, on its facts.
50. My Lord, the second case, Beach, I simply give to your Lordship as an example. My Lord, it was actually an enforcement notice case. It is a judgment on costs of Ouseley J in this division, and if I could take your Lordship to page 17, which is the ruling on costs. The second respondent, that is the local authority, was applying for their costs.
51. MR JUSTICE SULLIVAN: Yes.
52. MR GEORGE: Halfway down page 17 Ouseley J says:

"In this case I do not make the order on the basis that there was a separate issue not covered by the Secretary of State, but that this is a case where exceptionally a decision awarding a second set of costs can be made."

53. He then goes on to say you do not have to have a separate issue, that is at the end of that paragraph. In that situation he thought there were two particular reasons:

"At first instance, in a case of this sort, where the Claimant is represented by counsel who was at the inquiry and where it is necessary to put in context what happened at the inquiry, and the way in which the argument there developed it is important for the person best placed to put the opposing side to be represented so that the opposing argument can be expressed."

54. My Lord did not call on them, but we do fall entirely within that. Then he goes on to say that for obvious reasons the Secretary of State is simply not always in a position to know exactly what happened in the inquiry, and, of course, it is precisely Ms Tye in her witness statement who did explain what went on in the inquiry. Then over the page what he says is:

"Where the judge has been significantly influenced and assisted by the arguments of somebody who is entitled to be represented and be heard, the exercise of his discretion is not confined to simply identifying whether there was a separate issue but can exceptionally go beyond that."

55. My Lord, not new law in any way, but emphasising that the matter is entirely open.
56. My Lord, here I make four points. First of all, we did have a separate interest. Here is a very major development project, a business park, with which your Lordship, of course, will be very familiar: it is the same site as ex parte Tye and ex parte Miln, those are the IAA cases which your Lordship dealt with. I do not know if you are aware you are revisiting familiar terrain.
57. MR JUSTICE SULLIVAN: Do you know, I did not know. I noticed it was outlined as planning permission for a business park and I have to say that did ring bells and I thought, I wonder.
58. MR GEORGE: My Lord, there is plainly here a separate interest wholly dissimilar from that of the Secretary of State. Secondly, there is a separate issue because Mr Wainwright has throughout made rather serious allegations against the NWDA. He has been very polite about my instructing solicitor, and he has repeated that again today, but your Lordship will recall that, in the document from which Mr Wainwright was reading this morning at the beginning of his submissions, in paragraph 11 there he describes the NWDA as being "guilty of malpractice", was the phrase he used, and in his skeleton at paragraph 8 he says there was a significant misapplication of procedures.
59. Now, my Lord, when one finds that sort of allegation, and as I say it is repeated right up to the skeleton argument, your Lordship may think it would be quite unreal for the acquiring authority not to appear.
60. My Lord, thirdly, as your Lordship has indicated, we were actually made the defendant to the proceedings. My Lord, at that stage, we could have simply let it run and then try and strike it out on the basis that it was not a proper judicial review, and then, my Lord, there would have been a glorious shambles at the end and it might have been converted on the day of the hearing and then there would have been an adjournment and so forth. But what we did was we took the matter by the scruff of the neck. We thought that the standard directions which had been issued to us were wholly inappropriate because they were judicial review directions, and we applied to the Administrative Court for directions. Your Lordship has those directions at the very end of the core bundle. I think the very last document in the core bundle.
61. MR JUSTICE SULLIVAN: Right, yes, I have them.
62. MR GEORGE: My Lord, it matters not where your Lordship has them. I have them at page 50 of the core bundle, and I say it is tab 10 at the very end -- the last tab 10 at the very end of the core bundle.
63. MR JUSTICE SULLIVAN: Tab 10, page 50.
64. MR GEORGE: Yes. My Lord, inter alia, in direction two, that the action proceed as if commenced under section 23, three that the Secretary of State for Trade and Industry be joined as a defendant, and then that the previous directions be removed and we have the new directions.
65. So, my Lord, this has all worked very efficiently, if I may say so, and we have got on earlier than we would have done otherwise to a hearing date, which was important for a number of reasons. But, my Lord, having been made the defendant, I think we do plainly have a particular reason to be present.
66. My Lord, the fourth special matter is that, in that the claimant was in person, it was obviously necessary for someone to grapple with the question of bundles, getting the documents in a chronological and sequential order and having a core bundle, which is a requirement of the Practice Directions. My Lord, all of that my solicitors undertook. If the claimant had had his own solicitors, he would have been paying them probably £50,000 or so to do the whole exercise which in fact the NWDA has done.
67. My Lord, that was necessary because Mr Wainwright's bundle does not even include the Secretary of State for Trade and Industry's own decision letter on the matter. That key document was not even there. That is an indication.
68. Now, my Lord, it was a very large task to construct these bundles. My Lord, even I myself over the weekend, trying to insert a lot of additional documents which came to us, all of this takes a long time, although that is not, in the event, charged for at all. By a very substantial operation -- and Mr Wainwright declined to agree our bundle and therefore, of course, we have had to produce schedules, other schedules and so forth -- the directions of the court were that we, that is the first defendant, should prepare the bundles, and we have done that.
69. Now, your Lordship may be inclined to be sympathetic to Mr Wainwright because he is a litigant in person, but he has in effect saved the costs on lawyers in that way, so he can hardly complain if some of those costs are then incurred by the defendants in doing what he ought to have done. If he had gone through lawyers no doubt he would have proceeded under the right Act instead of by way of judicial review and he would have had his documents in order. He did not.
70. MR JUSTICE SULLIVAN: I think one of the particular problems has been the refusal to agree a core bundle, because I indicated the documents that I thought were relevant, and you have heard how many documents I found it necessary to refer to in giving judgment and, quite frankly, there has been vast amounts of documentation utterly wasted which, had Mr Wainwright taken, it seems to me, steps to try to agree something sensible, we could have certainly saved a huge amount of costs. But if you could not agree that, I think the skeleton argument makes the point that --
71. MR GEORGE: Well, my Lord, I make the point that I was not referring to a single document in the second trial bundle, but they are all there because Mr Wainwright insisted that they must be before the court. So that is how it has happened. My Lord, we also wrote a letter to Mr Wainwright. Perhaps I should just take your Lordship to it. It is in the first trial bundle at page 159. It is a letter of 18th February. This was immediately after the directions hearing.
72. MR JUSTICE SULLIVAN: And, of course -- sorry, just to get it clear, you were not able to duck out after the directions hearing because you were told to prepare a bundle?
73. MR GEORGE: We had to prepare a bundle. It is true, my Lord, that we did not actually have to be here, and we are only applying for half of our costs. We are not in fact therefore charging any costs for attendance here today. If your Lordship looks at the schedule, we are actually asking for our costs up to the directions hearing and the costs of the preparation of the bundles.
74. MR JUSTICE SULLIVAN: That is actually really what I wanted to check out, because --
75. MR GEORGE: My Lord, it is fair to say that we drafted the directions and we did supply them to Mr Wainwright for any comments on them, but it is fair enough to say that it was not the court which told us to do it. We suggested that it was an appropriate course. My Lord, I hope that was a responsible way to proceed, but I do not want there to be any --
76. MR JUSTICE SULLIVAN: Well, you could have said, either you or the Secretary of State do it, but quite obviously one who is legally represented had to do it.
77. MR GEORGE: We had been sent all the documents first. None of them had been sent to the Secretary of State initially.
78. MR JUSTICE SULLIVAN: Certainly one would try to reflect to some extent, if one was going to make any order, the fact that, having got things in order, and I accept you had to get them in order and get it arranged as a section 23 application and get the proper defendant in, the Secretary of State, it might be said that once you had done that, you could say, right Secretary of State over to you, and we back away. But I would certainly like to check whether that is the practical implication of your half of the costs.
79. MR GEORGE: My Lord, if I take your Lordship to our costs summary assessment. At the top of page 3, your Lordship will see a subtotal for section 1, that is the £19,669.50. That is everything up to and including the directions hearing, at which stage the Secretary of State was only incurring very minimal costs. Then thereafter, in that we are claiming £28,000, the vast majority of that extra bit is the subtotal which appears at the top of page 4, which is for work on preparing the bundles. That is the £6,921.50. If you in fact take that and the earlier, you arrive at £27,000 I think, but very roughly that is done. So we are not charging any of the other.
80. Your Lordship may find it of interest that most of our bundles were prepared by a solicitor who actually is charging out at a rate of £145, which is slightly lower than the Secretary of State's costs. So it may be that we take longer -- and I am not for a moment saying that the Secretary of State overcharges, but Mr Wainwright would have been faced by someone charging --
81. MR JUSTICE SULLIVAN: The Treasury Solicitor never knowingly overcharges.
82. MR GEORGE: -- would have been faced by someone charging £160. But, my Lord, it was laborious to prepare the bundles and people kept having to come back to me and saying, is such and such really necessary, to which I was saying no, it is not really, and therefore it went off to trial bundle two, because Mr Wainwright would not agree.
83. So that is my submission: that there are very special cases. We did tell Mr Wainwright that he ought to --
84. MR JUSTICE SULLIVAN: I am sorry, you were going to refer me to the letter.
85. MR GEORGE: In the letter we advised him to take legal advice, that is the fifth paragraph on page 159, because of the risks in costs which he was going to incur. Like the Treasury Solicitor we underestimated our total costs, but we told him we would be claiming everything. In practice, we are only claiming half our costs and Mr Wainwright has decided to proceed and we say that he must therefore pay the penalty for that. My Lord, it does seem a lot, but it has been incurred. The reality is that with the extra amount that other half will be paid for by public funds.
86. MR JUSTICE SULLIVAN: Yes, yes. Now, Mr Wainwright, you have had heard what they say. What do you want to say about it?
87. MR WAINWRIGHT: I will not pass any comment, your Honour.
88. MR JUSTICE SULLIVAN: Well, I mean you must appreciate that the normal rule is that if you fail in a challenge to a CPO, unless there is a particular reason, say you have been led into some sort of false position, or whatever, which does not seem to be the case here, you would expect to pay at least the Secretary of State's costs. But there are particular features, in my judgment, about this case which mean it is certainly right that the first defendant may be in a position to say, well we should have some of our costs paid as well, because you started against them and the Secretary of State only comes in at the directions hearing. Do you wish to advance any reason why you should not pay?
89. MR WAINWRIGHT: I am passing no comment, your Honour.
90. MR JUSTICE SULLIVAN: You are passing no comment, right. Mr Brown, there is one thing that does trouble me. If I take the view that, as far as the first defendant is concerned, given the peculiar circumstances of this case, it would be fair to give them their costs, at least up to the directions hearing and for anything that was incidental to that, where I appreciate that they say they put forward the draft of the order, but effectively it was down to them at that stage anyway to do the trial bundles, somebody had to --
91. MR BROWN: And, my Lord, we could have stepped into the breach then and said, no, we will do it, but we were very happy, and indeed grateful, to them for getting on with it.
92. MR JUSTICE SULLIVAN: Yes. The question that does arise in my mind is: to what extent was it necessary, although I would freely concede that I actually found it very useful because it was probably the slimmest bundle of all, for Mr Farquhar's evidence to go in with its various exhibits? I suppose at least to have some evidence, perhaps, although the exhibits are pretty much duplicated all over the place in trial bundles and core bundles and essential bundles.
93. MR BROWN: My Lord, they were ultimately, by the time we had Ms Tye's evidence, but -- I cannot recall exactly what the timescale was in relation to production, but I know that the NWDA were producing their evidence at the same time that we were producing ours, and, while I suppose it would have been possible for the two sides to have spoken to one another and said, what are you going to produce, effectively Mr Farquhar got on and produced his witness statement with the exhibits that came with it. I think it came out at about the same time as Ms Tye's did.
94. MR JUSTICE SULLIVAN: Yes, I see, yes.
95. MR BROWN: Certainly in circumstances where one of the matters that was in issue was what had happened as a result of the Secretary of State's "minded to grant" letter and what representations had been made, we felt it was important that your Lordship had the Secretary of State's account of the material that had been before her at the point that she reached her decision, and how it was that she had come by it, which is why that is on record from Mr Farquhar.
96. MR JUSTICE SULLIVAN: Yes, I see. Thank you very much Mr Brown.
97. There has been an application for costs made on behalf of both the first and the second defendants. The claimant has chosen not to respond to the applications for costs. This is despite the fact that the total amount of costs claimed is, by the standards of a normal one-day hearing of this kind, very substantial indeed. The total of the Secretary of State's costs, adjusted for the reduced hearing length, is £11,642; the total of the first defendant's costs (although they claim only half of those costs) is £56,236. At first sight, those figures are huge by comparison with a normal case.
98. The problem is that this has been very far from a normal case. I have to say that it is entirely the claimant's fault that these very substantial costs have mounted up. It is not a normal case because, when these proceedings were started initially against the first defendant, they were not in the form of an application under section 23 of the 1981 Act, and so the first defendant had to seek directions to get the proceedings in order. They did so at a directions hearing, at which it was ordered, amongst other things, that the Secretary of State be joined as a party, and that the proceedings should be continued as though made under section 23. Certain other very necessary directions were made as to the production of evidence and the production of bundles.
99. I mentioned at the outset of the hearing that there was a vast amount of material that had been produced that appeared to me not to be relevant. The cost of producing that has been enormous. It has been due to the fact, I am sorry to say, that although the claimant was invited to agree a core bundle for the court, he declined to do so. Thus it was that the first defendant had to take upon itself the cost of preparing this massive amount of largely irrelevant documentation for the court, simply because the claimant would not agree that which was relevant.
100. I am satisfied, firstly, that this is a case where it is appropriate in principle that both the first defendant and the second defendant should receive at least part of their costs. I have mentioned the fact that the first defendant was initially the only defendant, and therefore inevitably incurred expenditure in getting the proceedings in order. Moreover, given the nature of the allegations made, both by way of criticisms of the first defendant and the fact that it was by no means clear which allegations had been and which had not been advanced by the claimant at the inquiry and which were or were not new allegations, plainly it was necessary for the first defendant, who knew what had happened at the inquiry, to be present. This is, therefore, a case where, bearing in mind the guidance given in the Bolton case, it is appropriate that there should be two lots of costs.
101. The question is how much should those costs be, given that the total cost of both defendants is a truly enormous sum. The first defendants claim half of their costs, effectively rounded down to about £28,000. The second defendant claims the whole of her costs in a little over £11,000.
102. I take the view that, after the directions hearing, there was a degree of duplication which it might have been possible to avoid. Allowing for that factor, it seems to me that in broad terms the first defendants ought to be paid their costs up to and including the directions hearing, and also the costs of complying with the directions in terms of preparing the bundles, with some reduction to allow for possible overlapping. The second defendant should be entitled to the bulk of her costs, given that those costs effectively run from the directions hearing.
103. I should also mention, for the sake of completeness, that in reaching these conclusions I do bear in mind the fact that both defendants very properly sent warning letters to the claimant pointing out what the consequences would be for him if he proceeded with this matter beyond the directions hearing.
104. Bearing all these factors in mind, and doing the best I can to allow for the possible degree of overlap, I think it is appropriate to summarily assess the second defendant's costs in the round sum of £10,000, and to summarily assess the first defendant's costs in the round sum of £25,000. The claimant will pay those costs to the first and second defendants.
105. MR BROWN: My Lord, I am grateful.
106. MR JUSTICE SULLIVAN: Thank you all very much.