England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		8 April 2005

Friday, 8 April 2005

MR JUSTICE OUSELEY:

The Applications

1. There are before the court two applications. The first is by Mr Ewing alone for permission under section 42(3) of the Supreme Court Act 1981 to institute and proceed with a claim for judicial review of a number of planning decisions of the North Somerset Council and of the Office of the Deputy Prime Minister ("ODPM") in relation to two related proposed developments and permissions in respect of a site which fronts Beach Road and is bordered by Severn Road and Clarence Road in Weston-Super-Mare.
2. The second and related application is by Mr Ewing and Mr Hammerton (who is not a vexatious litigant) and constitutes the application for permission to apply for judicial review in respect of those self-same decisions.
3. Although the latter has not been considered on paper, I direct now that it be considered orally along with the first application by Mr Ewing as it is a necessary part of understanding whether his claim for permission under the 1981 Act should be granted.
4. Mr Ewing put forward, in his full and helpful summary of why he should be allowed to proceed, a series of references to the appropriate tests to be applied by the High Court in deciding whether or not permission to proceed with a claim should be granted to a vexatious litigant. There do not appear to be significant differences between a standard which a case has to reach in order for permission to be granted under section 42(3) and the threshold which is habitually applied by this court in deciding whether or not permission to apply for judicial review should be granted. Accordingly, the application by Mr Ewing has been considered with the application for permission to apply for judicial review. If he succeeds in the one, he succeeds in the other; and if he fails in the one, he fails in the other.
5. The decisions under attack in the proceedings are, first, the grant of planning permission and conservation area consent dated 22 January 2003 for the whole of the site to which I have referred. The planning permission and conservation area consent involved the demolition of most of the existing buildings on the site, but the retention, repair and reinstatement of the elevations of two properties on Clarence Road North. The aim was to provide further accommodation for the purposes of the Royal British Legion.
6. It appears that at some point in 2003 there was a falling out between the Royal British Legion and its development partner in certain respects. This led to the second decision which is under challenge. That is the grant of planning permission and conservation area consent on 29 December 2003 in respect of 3 and 5 Clarence Road, a permission granted to Dorchester Land Limited. I point out that, although that is under challenge, the primary focus of Mr Ewing's submissions has been the demolition of a property known as Severn Croft, which is on the corner of Severn Road and Beach Road. Mr Ewing has helpfully drawn the court's attention to photographs of the building as it is and of the elevations of the proposed developments.
7. The upshot of the separation of the development interests was that the Royal British Legion itself had to seek planning permission for a separate development of the remaining and larger part of the site. It made an application for permission, and it was resolved on 18 November 2004 that conditional planning permission be granted for that development. For reasons which are not entirely clear, it appears to have been thought at a subsequent stage that planning permission had in fact been granted. However, it is clear from the acknowledgement of service put in by North Somerset Council that planning permission has not yet been granted pursuant to that resolution. Miss Sheikh tells us that this would be because the terms of the section 106 agreement were being thrashed out. She told me that one seemingly minor issue remained to be resolved and at least from the point of view of the Royal British Legion it was hoped that the agreement would be signed and permission issued about two weeks from now. That resolution is the third decision under challenge.
8. Shortly after the resolution Mr Ewing wrote to the ODPM seeking the revocation of the two permissions granted in 2003 and also seeking (under the mistaken apprehension that permission had been granted) the revocation of the permission which he thought had been granted pursuant to the 18 November 2004 resolution. As a tail-end to that letter, he also sought that the application be called in.
9. The fourth decision under challenge in these proceedings is the response to that letter (and one or two subsequent letters) issued by the Government Office for the South West on 21 December 2004 in which the Government Office for the South West said that it understood from North Somerset Council that planning permission had now been granted. In these circumstances the only course open would be revocation, but this was something that would only be done where the original decision

"appeared so grossly wrong as to damage the wider public interest in a matter of national concern. Revocation action has been considered here but it has been decided that this would not be justified."

The local authority's own powers of revocation were also mentioned. There was some confusion as to whether that decision also covered the Dorchester Land permission for 3-5 Clarence Road and in a decision of 4 January 2005 it was confirmed that it did.

10. A number of issues have been raised by the interested parties and defendants in Acknowledgements of Service. One point concerns the standing of Mr Ewing and of Mr Hammerton to institute these proceedings. I do not consider it normally appropriate, and do not do so here, to decide standing without a full consideration of the merits. There may be significant issues, but I prefer to decide this case on other grounds.

Delay

11. The proceedings were lodged by Mr Ewing on 18 February 2005. I shall treat that as the point at which proceedings were commenced for the purposes of an examination of delay, even though as a matter of formality the proceedings may not actually be commenced until permission is granted under section 42(3). However, it follows from that that the decision of 22 January 2003 was not challenged for just over two years, and the decision of 29 December 2003 was not challenged for something over one year. Plainly these matters are out of time. Mr Ewing said that the reason why the application to apply for permission under section 42 and to apply for judicial review were so long delayed were, first, because the later resolution of 18 November 2004 relied on the earlier consent. There is nothing in that point. If he is in time to challenge that later consent by reference to flaws in an earlier decision, those flaws will equally taint the later decision. There is no justification there for extending time or for the delay.
12. Secondly, Mr Ewing suggested that he had been pursuing an alternative statutory remedy -- that is to say, seeking revocation. However relevant or otherwise that may be in relation to any delay in relation to the 18 November 2004 resolution, it cannot possibly provide a ground for the extension of time to challenge the 2003 decisions. Revocation was not sought until 17 December 2004.
13. Accordingly, for delay grounds alone I regard the challenge to the two 2003 decisions as untenable and permission to apply for judicial review and to seek permission under section 42(3) is refused.

The Challenge to the 18 November 2004 Resolution

14. These proceedings were instituted one day out of time. They were not in my judgment prompt. They could have been instituted earlier. But I would be reluctant to hold that wholly against Mr Ewing, quite apart from the vexatiousness of his litigation in the past. It does take a certain amount of time to get matters together. It was not illegitimate, however ill-advised, to seek to resolve matters by seeking a revocation. Christmas and the New Year intervened and Mr Ewing, although familiar enough with the ways of the court, would nonetheless have had to get the material together and his material is a great deal more helpfully presented than that which so often is found from vexatious litigants.

The Merits of the Challenge to the November 2004 Resolution

15. The challenge is essentially founded on the way in which the council considered the provisions of PPG 15 in relation to the demolition of buildings which make a positive contribution to the character of a conservation area by statute and by policy. The preservation and enhancement of the character of a conservation area are primary objectives. The report which led up to that resolution refers briefly to the proposed design of the buildings as an amendment to the previously permitted scheme. When dealing with the impact of the proposal on the conservation area it said that the scheme was of a similar quality to that which had been permitted in January 2003, and indeed there was a reduced amount of development on the site. It was concluded, as can be seen from the reason for condition 4, that the proposal as a whole was one which would preserve and enhance the character of the conservation area. That was the view to which they had come.
16. It is plain that if the approach which had been adopted to the January 2003 permission was legally erroneous, that legal error could arguably be said to taint the consideration given to those issues in the November 2004 resolution. Accordingly, I turn to the way in which those matters were dealt with in January 2003.
17. The starting point for Mr Ewing's argument was the objection by English Heritage to the demolition because it expressed itself in a letter dated 24 July 2002 to be firmly of the view that the original corner block made a positive contribution to the conservation area. The arguments for its demolition, which appeared principally to be based on structural grounds were challenged with the assistance of an engineer who, it was reported in October 2002, advised that the use of strip as opposed to pile foundations would enable development to take place without the demolition of Severn Croft. A report from the developers took issue with the suitability of strip foundations. That report produced a further reply from English Heritage saying strip foundations had been used on the site. It maintained its objection.
18. The matter was considered in the officers' report to Committee in the following way. It set out fully and fairly the objection raised by English Heritage, although there were other bodies who took a different view about the overall merits of the scheme. The English Heritage point related particularly to the loss of the corner block, although it had some concerns about other design details. The report to Committee considered the impact of the proposal on the conservation area by referring to the extent of demolition, to English Heritage's objection and assessment, and by setting out in summary the advice from PPG 15. It said that the council had complied with the relevant considerations because it had produced a development framework for the site which included the requirement, amongst other things, that Severn Croft be retained "if required". Various specific matters were then said to have to be taken into account. One of those was the condition of the building and the cost of repairing and maintaining it. The report referred to the developers' contention that piled foundations were necessary. It appears not to be in dispute but that if piled foundations were necessary Severn Croft would have to be demolished. There was then an argument about the unsuitability of Severn Croft for incorporation into the new development. The officers commented:

"This argument is not sufficient in itself to prove the point as some of the existing buildings are a very similar height to the new proposals and did not required [sic] the demolition of Severn Croft when they were constructed. It also raises concerns that if Severn Croft could be damaged by construction works then adjacent neighbouring properties, including 3 and 5 Clarence Road North, could also suffer damage. However, the developers would be responsible for any damage to surrounding properties and would be expected to undertake a pre-commencement survey of any properties which may potentially be affected."

It appears, as Mr Ewing points out, that the council officers were not completely persuaded by the developers' arguments and indeed may not have reached any overall conclusion as to whether English Heritage were not right in the assessment that they had made over what form of foundations could be used. The report continued:

"Although the Development Framework states that Severncroft should be retained in the first instance in any redevelopment scheme, it also notes that the existing development fronting Beach Road is poor and a sensitive redevelopment can achieve considerable improvement. It intended that if a scheme of sufficiently high quality is achieved, its implementation should not be prevented by the requirement to preserve Severncroft. Following negotiations, a suitable scheme has now been put forward for this site and it is concluded that the retention of Severncroft should not be required."

19. It is also relevant to note what was said under the heading "Timescale of demolition works":

"Following negotiations, the design has been considerably improved. In general terms, it draws heavily on the Victorian character of this part of the Conservation Area. This has resulted in the design of the Villas with an individual character, Dutch gable features and projecting bays with sliding sash windows. Providing the materials are acceptable and the detailed design including the mouldings and gate piers is of high quality, the resulting development would be acceptable. Although the buildings are of a significant height they are similar to the existing Sandpiper building and are in accordance with the approved Development Framework. Any approval should be conditioned to require that the existing natural stone on site is reclaimed and as much as possible is reused in the new development."

20. Although I have been referred to the relevant passages from PPG 15, including the reference to demolition which in respect of buildings contributing positively to the character of the area, should be assessed broadly in line with those criteria which apply to listed buildings, I do not consider it arguable that the approach adopted by the local authority then, and arguably carried forward into the November 2004 resolution, as erroneous in law. Plainly it has directed itself, first, to whether the building Severn Croft made a positive contribution. There is nothing to suggest -- indeed everything points in the other direction -- that it did not accept that the building was indeed one which made a positive contribution. In that way it contrasted with the generality of buildings along the frontage of Beach Road and on the Clarence Road return as far as 3-5. Indeed, there was vacancy at that corner.
21. Secondly, the council applied its mind to the relevant tests (and these were, for an unlisted building in a conservation area, only broad tests) and as to whether the criteria were satisfied. It considered whether the buildings could be retained in the scheme and it considered, following the development framework, whether the retention of the buildings would damage the scheme and whether there was not instead an advantage overall in conservation area terms in having a redevelopment scheme which did away with the unsatisfactory buildings, improving the conservation area in that respect, even though it meant that Severn Croft had to be demolished.
22. That is a perfectly proper approach as a matter of law conformably with the considerations in PPG 15. It is that approach which is contained in the two passages from the report which I have set out above. It cannot be irrational or a misinterpretation of policy to say that overall the scheme preserves or enhances a conservation area through the removal of that which is unsightly, even though the price may be the removal of something which is itself, viewed in isolation, otherwise positive.
23. Mr Ewing's argument, in short, was that that approach was unlawful and that it was necessary to consider separately what might be done with Severn Croft as a positively contributing building; it had to be divorced from the rest of the proposal and its demolition had by itself to satisfy all the tests. A development could therefore only proceed, regardless of its effect on other parts of the conservation area in the immediate vicinity, if the part on Severn Croft was itself of such calibre as would justify the demolition of Severn Croft. Such an approach is in my opinion not merely not required by law; it would be to ignore relevant considerations when the application as a whole fell to be considered. It is unarguably wrong.
24. Finally, I turn to the contention that the Secretary of State's decision can arguably be challenged. It falls into two parts. The first part concerns the refusal to institute revocation proceedings in respect of the 2003 decisions and apparently (but erroneously) in respect of the November 2004 decision. (I say "erroneously" because no permission had been granted and so revocation in fact did not arise.)
25. The Secretary of State has set out in a number of places the policy which he applies when deciding whether or not to use those powers. That policy was set out in 1989 in Hansard, and has been restated in Parliament on a later occasion in the course of a debate in 1998. The policy has been adequately summarised in the Secretary of State's letter. There is an additional (but here immaterial) consideration, namely that revocation may be exercised where it is necessary to do so to avoid inconsistency between local authority decisions.
26. Mr Ewing contended, first, that that policy was itself unlawful because it was so strict as to act as a fetter on the discretion of the Secretary of State. That is unarguably wrong. It is, I accept, a high threshold test. It is also a policy which has led to few cases in which revocation has been sought. But in my judgment it cannot be argued that the test is so strict as to amount to a refusal to examine the individual circumstances of a case. That is what is meant by the fettering of a discretion.
27. The Secretary of State was pressed with the individual circumstances here. It is clear that they can rationally be said not to fall within the scope of the policy. Mr Ewing submitted that in any event the individual circumstances were sufficiently compelling to require the matter to be considered for revocation. It cannot be said that the individual circumstances required the discretion to be exercised in his favour. They plainly were considered. The mere fact that Mr Ewing argues that a different view could be taken under PPG 15 does not suffice to make it necessary in the public interest for that power to be exercised.
28. The second part of the decision was the question of call-in. Although call-in was referred to in Mr Ewing's letter of 17 December 2004, there was no basis provided for a call-in if, as the letter asserted, all the relevant permissions had in fact been granted. By the same token the Secretary of State considered the revocation on a false basis in relation to the November 2004 resolution because no permission had been granted. On this point, therefore, there is the unsatisfactory situation, as the Secretary of State's acknowledgement of service now actually accepts (although he does not apply it to the decision that he has made), that a request for call-in was made on a false basis. It was dealt with on a false basis and it never has been considered on the correct basis. It is necessary, therefore, to decide what to do about that particular situation in the course of these proceedings.
29. It does not appear to me that the right course to take is to keep these proceedings on foot. The right course to follow is for a proper application for a call-in to be made -- an application that would explain why it was said that this case raised more than local concerns. That would be the relevant consideration. I decline to say that the Secretary of State would be bound to say that it did not because there appears to be some scope for variability from my experience about what he does or does not regard as of more than local importance. The Secretary of State can then make a considered reply to that application. My concern would be that a planning permission might be issued in such a way as to thwart consideration of that matter. But the Secretary of State has powers -- and it would be for Mr Ewing to see that they be exercised -- to put the matter on hold whilst he considers whether to exercise the call-in power to avoid any decision on that being pre-empted by the actions of an authority. I also point out that we have been informed (and the court sees no reason not to accept what we have been told and to operate on that basis) that planning permission cannot be issued imminently because there is an issue to be resolved over the section 106 agreement, which will impede its issuance for some two weeks or so.
30. For those reasons this application is regarded as unarguable. The relevant permission under section 42(3) and to move for judicial review is refused.
31. In saying what I do about call-in, I do not wish Mr Ewing to think that for one moment I am giving him encouragement or that I am expressing any view at all about what the Secretary of State should or might do. I am merely commenting that I think it inappropriate to rule out now a favourable answer from the Secretary of State (which is not my function), or to say that were he to take a different view he would necessarily be acting irrationally. That is a matter which no doubt would be for debate at some later date depending upon what he does. I am simply concerned, in the light of the way that the facts have turned out to be on that matter, to be satisfied that Mr Ewing has the opportunity to say what he wants to say to the Secretary of State and that the Secretary of State has the chance to deal with it on the proper basis before permission is issued. I am satisfied that that can be done.
32. For those reasons these applications are refused.

MR EWING: I wonder if your Lordship might like to order a copy of your Lordship's judgment at public expense? Obviously the Secretary of State would want to know your Lordship's comments about this important issue.

MR JUSTICE OUSELEY: It may be useful to do it -- I will come to that in a moment -- but you are not going to have enough time.

THE CLAIMANT (MR EWING): No.

MR JUSTICE OUSELEY: I am assuming that you will be using the weekend to prepare your letter --

THE CLAIMANT (MR EWING): Yes, indeed.

MR JUSTICE OUSELEY: -- and it will be sent off.

THE CLAIMANT (MR EWING): Yes.

MR JUSTICE OUSELEY: I am not going to be spending my weekend reviewing a transcript, not merely because I have many other things to do, but because it will not be available.

THE CLAIMANT (MR EWING): No, indeed.

MR JUSTICE OUSELEY: So you may not have the transcript by the time the Secretary of State comes to consider the matter. It would be expected that you will point out, and it is perfectly obvious, that there is no permission; he erroneously thought there was.

THE CLAIMANT (MR EWING): Yes, my Lord.

MR JUSTICE OUSELEY: That is not a matter that requires a transcript. But as to having one ordered at public expense, I will make such an order. So there will be one in due course. But I emphasise: do not wait for it, Mr Ewing.

THE CLAIMANT (MR EWING): No, no, indeed.

MR JUSTICE OUSELEY: Miss Sheikh?

MISS SHEIKH: My Lord, in the light of your Lordship's judgment, I do have an application on behalf of the first interested party for their costs. My Lord, the reason is that because Mr Ewing did not wait to obtain permission to proceed before instituting proceedings, he went along and instituted proceedings anyway on 18 February. That, of course, brought into play the requirements of the CPR, which led to us having to file various acknowledgements of service and so forth. My Lord, I hope that your Lordship has summary grounds, and indeed the amended summary grounds?

MR JUSTICE OUSELEY: Yes.

MISS SHEIKH: On that basis I do ask for the first interested party's costs in accordance with the judgment in Mount Cooke.

MR JUSTICE OUSELEY: Yes. This is an application that is made effectively in respect of Mr Ewing and Mr Hammerton. Do you want to say anything about that, Mr Ewing?

THE CLAIMANT (MR EWING): My Lord, I do not have a copy of the summary grounds.

MR JUSTICE OUSELEY: It deals only with the application. It does not deal with the costs of today. It deals only with the costs of preparing the acknowledgement of service.

THE CLAIMANT (MR EWING): Yes. I am just trying to find the application from them. I think on 6 April they put in amended grounds. What I would say in respect of myself, I didn't institute any proceedings without seeking leave. A claim form had to be lodged at the same time as the leave application.

MR JUSTICE OUSELEY: Yes. It is not a criticism of your conduct that an application is made. It merely effectively points out that when proceedings are issued, if they are unsuccessful at this stage -- forget the section 42 application -- then the interested party is in a position to ask for costs in respect of the acknowledgement of service.

THE CLAIMANT (MR EWING): Yes. I am just making the point that in respect of myself, that does not apply to me in particular because I didn't institute the proceedings because I had not been granted permission under section 42(3). So therefore I would say that it does not apply to me and I would certainly resist it.

MR JUSTICE OUSELEY: Right.

THE CLAIMANT (MR EWING): That is my view --

MR JUSTICE OUSELEY: All right.

THE CLAIMANT (MR EWING): -- because I didn't, of course, at that stage serve the proceedings. Mr Hammerton did, and he resists any application --

MR JUSTICE OUSELEY: Well, I will hear from Mr Hammerton in his own right. Mr Hammerton, what do you want to say about that?

THE CLAIMANT (MR HAMMERTON): Basically, my Lord, I was involved in this to support Mr Ewing in what he was doing as goodwill rather than anything else. Plus his knowledge was considerable on that. That is how the application was made.

MR JUSTICE OUSELEY: Yes.

THE CLAIMANT (MR HAMMERTON): My feeling is that somebody somewhere may have slipped up for us to send up in the situation where in fact that application may have seemed possible and that is why these other people are suddenly asking for costs. That might not be a legal argument, but that is my personal argument.

MR JUSTICE OUSELEY: Yes. How much are you asking for, Miss Sheikh?

MISS SHEIKH: My Lord, I have got a schedule that I have just had faxed over during the court proceedings. May I pass that up?

THE CLAIMANT (MR EWING): My Lord, we have not seen any schedule. We have not been served in advance. So we would oppose any application.

MR JUSTICE OUSELEY: I do not know whether you were here when I dealt with the last matter. I normally take the view that these matters should be dealt with shortly if they can be dealt with shortly. But I see the total sum claimed is £6,400.

MISS SHEIKH: My Lord, yes. It includes the solicitor's work on the acknowledgement of service and taking instructions from the interested party. My Lord, there is at the bottom £300, which is my attendance for today, which can be removed. My Lord, it is the nature of these proceedings that they do bring CPR requirements into court.

MR JUSTICE OUSELEY: Yes.

MISS SHEIKH: And in the circumstances of this case it would be, in my submission, unfair not to allow them their costs.

MR JUSTICE OUSELEY: What do you want to say about Mr Ewing's particular position, which is an unusual one, in the sense that he can say, can he not -- it may be a technical rather than a merits point -- that in fact, although it is necessary to consider the merits of the case for the purposes of section 42(3), the acknowledgement of service was only strictly material once he obtained permission to issue the proceedings?

MISS SHEIKH: My Lord, I say about that two things. First of all, the fact is that once the claim form was issued it was incumbent upon RBL to respond. Now, they had to respond to the allegations and the grounds raised in the claim form. My Lord, all the claim form raises are details of remedy and so forth and a very detailed witness statement from in fact Mr Ewing.

MR JUSTICE OUSELEY: Yes.

MISS SHEIKH: There is very little from Mr Hammerton. Therefore it is quite clear that the intention of these proceedings and the intention to raise the grounds and so on were driven, I would say, by Mr Ewing and then Mr Hammerton -- I do not like to use the word "connivance" -- but I suppose the idea was that if one were to be knocked out the other would --

MR JUSTICE OUSELEY: If Mr Ewing got knocked out, the proceedings could nonetheless proceed. That is the thinking --

MISS SHEIKH: Yes.

MR JUSTICE OUSELEY: -- but in fact the two go together.

MISS SHEIKH: Yes. And, my Lord, I also note the comments made by Mr Ewing at the outset when he was asserting that he thought that this was only a section 42 hearing. But, my Lord, Mr Ewing has been involved in numerous cases of this sort and, my Lord, I do just set out here three of those cases: 1991 -- I will not pass them up, my Lord, but I will just make the point, if I may -- Ex parte Ewing (Court of Appeal) [1991] 1 WLR 388. My Lord, there the Court of Appeal made it clear that the matters relating to the merits of the application would be heard at the same time and should be heard at the same time. My Lord, then there was another one in 1994, again Ex parte Ewing No 2 (Court of Appeal) [1994) 1 WLR 1553, endorsing that approach. Once again everything is set out there about proceedings are to be undertaken in this sort of a case. Then, my Lord, there is a later one, Re Terence Patrick Ewing -- this is a High Court decision on 20 December 2002.

MR JUSTICE OUSELEY: Can you pass that up to me?

MISS SHEIKH: Yes, my Lord. My Lord, this was a case when the Secretary of State sought to appear and to be heard at an application for a section 42 application alone, and Mr Ewing made argument that that was not permissible. But the court there said no, the Secretary of State could be heard even in the absence of an order because those matters affected him, and of course the CPR does say at the relevant part -- it is Part 3.4, my Lord.

MR JUSTICE OUSELEY: Yes.

MISS SHEIKH: If my Lord turns a few pages through the commentary there will be 3.4.9, "vexatious litigants".

MR JUSTICE OUSELEY: Yes.

MISS SHEIKH: So, my Lord, there is something there about vexatious litigants. Then, my Lord, if your Lordship would turn to the Practice Direction of Part 3, there 3PD against number 7, where there is a title of "Vexatious Litigants" again.

MR JUSTICE OUSELEY: Sorry, Part 3?

MISS SHEIKH: It is the Practice Direction in Part 3.

MR JUSTICE OUSELEY: Yes.

MISS SHEIKH: And it is number 7.

MR JUSTICE OUSELEY: Yes.

MISS SHEIKH: My Lord, there it says "Vexatious Litigants".

MR JUSTICE OUSELEY: Yes.

MISS SHEIKH: My Lord 7.9 and 7.10 tells us the fact that a person may apply to set aside a grant of permission if the permission allows the litigant to bring or continue proceeding against that person or make any application against him if the permission is granted other than at a hearing of which that person is given notice of under paragraph 7. My Lord, the upshot of the case I have just passed up to your Lordship is that in effect it is to be expected that parties who are affected will come and argue and obviously, subject to the Bench, will be given permission -- and should be because otherwise they can still apply to have the decision set aside. So, my Lord, my submission on the broad point about Mr Ewing's involvement is that he is fully aware of how these cases are heard, how they go, the amount of effort and time and expenditure that is likely to go into them from all parties that he chose to involve. So, my Lord, I do not think in the circumstances that he can obtain his end of coming to court in the light of his Vexatious Litigant Order, create the very effect that the order is there to prevent by nonetheless having us serve acknowledgements of service, have to take instructions -- my attendance is one thing; I am not seeking costs for that (at least not on this application). So the idea that Mr Ewing can still attain the aim that the Vexatious Litigant Order is designed to prevent, my Lord, simply cannot be fair or right to those very people it is intended to protect. My Lord, I would submit that that would then be achieved by Mr Ewing -- and will be achieved by him in the future, too -- simply by setting up somebody to issue proceedings and he himself can make the argument, "Oh, well, it is not me". Therefore, yes, he will have to file his acknowledgement of service. Either Mr Hammerton should take the call -- "But it is not me". My Lord, I submit that cannot be fair or the purpose of these orders, which, my Lord, your Lordship will be aware, are not randomly given out. They are a select band of litigants who acquire this order. So, my Lord, I make those submissions and in the light of the substantial litigation and the many permissions that Mr Ewing has previously asked for after the order has been imposed -- and those should be on his application notice.

MR JUSTICE OUSELEY: Thank you. Did you want to say something else?

THE CLAIMANT (MR EWING): Did your Lordship want me to respond on that?

MR JUSTICE OUSELEY: You need not respond on amount. I am not going to do any assessment of costs. Do you want to say anything on the principle?

THE CLAIMANT (MR EWING): Yes, in principle what I say is that dealing with the older cases which counsel has referred to, they were under the old Order 53, and of course the 1991 case when Lord Donaldson made his ruling, you came along ex parte (as it was known then) and the other side -- you were not even entitled to serve the claim form or even notify the other side and what he held was -- all that case decided that the section 42 leave is decided at the same time. So I cannot see that that is an authority that the other side would have incurred costs in those days. The present situation, of course, under the new regime is that you have to serve the claim form. But I haven't served any claim form at all. Mr Hammerton has played a very minor role in this case. I am not permitted to serve -- I must emphasise, because it has been alleged against me more or less accusing me of some contempt of court --

MR JUSTICE OUSELEY: Nobody has accused you of contempt of court.

THE CLAIMANT (MR EWING): Well, that is the impression I got because of course when the claim form was filed, the section 42 application was filed with it because otherwise the Administrative Court office would not have accepted it. It was done perfectly properly and under the Practice Direction, as has been pointed out, the section 42 application cannot be served on the other side unless the court orders it to be done -- and they haven't done that in this case. I accept that. But nor can any other papers be served. Obviously I couldn't serve the claim form in the normal way because I hadn't at that stage been granted leave. So I would submit that in respect of filing assessment of the responses, I couldn't be liable; and Mr Hammerton has played a very small role in this, so he shouldn't be liable either. That is how I would look at it. And of course I would submit that, although leave has been refused, your Lordship has stated that the decision of the Secretary of State was flawed in respect of this call-in point. I would have preferred to have been granted leave so that that decision could have been formally quashed and then directed to be reheard, which is what one would have achieved had we gone ahead with the full case. But I would submit that technically I have succeeded on that because your Lordship has directed, "Yes, it is open to you to make a proper application, pointing out that this planning permission notice has not been served and so forth".

MR JUSTICE OUSELEY: Was the claim form served in the Ewing/Hammerton proceedings, Miss Sheikh?

MISS SHEIKH: Yes, it was. That is precisely the point I seek to make. It was served along with the witness statement and the grounds.

THE CLAIMANT (MR EWING): Yes, but it was clearly made plain -- or certainly on the claim form it was made plain -- Mr Ewing proposed, which was how it was felt it should be dealt with, but Mr Hammerton effectively served it, not myself. But as he has played a very minor role, he resists any application for costs, as has been pointed out. It is said that I am the driving force; if anyone should bear the costs it should be me. But I say that because I couldn't do anything without section 42 leave, I am in effect not a party.

MR JUSTICE OUSELEY: Well, I have your case. Thank you very much.

THE CLAIMANT (MR EWING): That is clearly what the Practice Direction indicates.

MR JUSTICE OUSELEY: There is an application before the court for the costs of the acknowledgement of service provided by the first interested party, the Royal British Legion. It is said in support of that, in reliance on Mount Cooke, that the claim form has been served and that engaged the entitlement or obligation to serve an acknowledgement of service, and that the principles in relation to costs had been established in Mount Cooke.

Mr Ewing resists that on the basis that, as a vexatious litigant, he could not do more than lodge his application under section 42 with the material which showed that he had an arguable case and that thereafter in relation to such matters it proceeds without notice. The fact that it is inherent in his argument that judicial review should be permitted to be sought if his claim under section 42 succeeds does not bring in the acknowledgement of service costs provision. He submits, as does Mr Hammerton, that Mr Hammerton has played only a negligible role in these proceedings and therefore no costs order should be made against him.

Miss Sheikh contends that Mr Ewing's approach would be to inflict on litigants the evils of vexatious litigation which the provisions of the Act and the rules were designed to prevent, and in any event the provisions of the Practice Direction permit an application for the grant of permission under section 42 to be set aside and in effect the costs associated with that are similar to the principle of an award of costs for the acknowledgement of service which seeks to deter that being granted in the first place. A number of authorities were cited, including the decision of Davis J in Ewing (December 2002) in which the Secretary of State was said to have standing to deal with the application even though it was not on notice.

It seems to me that Mr Hammerton is on any view liable to pay costs because he has participated in these proceedings and caused costs to be incurred and the technical argument raised by Mr Ewing does not apply to him.

So far as Mr Ewing is concerned, it would be to my mind highly undesirable if the technical point that he raises were to mean that costs were properly incurred by an interested party and yet they had no means of obtaining costs for dealing with the somewhat unusual position that arises here. It seems to me that, if a vexatious litigant seeks permission to institute judicial review proceedings, the two applications, permission under section 42 and permission to apply for judicial review, have to be dealt with together in order for an expeditious result to be achieved in the interests of everybody.

It therefore follows to my mind that the costs consequences should be the same as if this were an ordinary application for permission to apply for judicial review and the fact that strictly there has been no actual service because that is not yet permitted by the rules, should not stand in the way of an order for costs.

For those reasons Mr Ewing will pay the costs as well. There will be a joint and several order for the payment of costs, such costs of the acknowledgement of service to be assessed.

THE CLAIMANT (MR EWING): I wonder if your Lordship might like to give me section 42 leave to make an application to the Court of Appeal -- in respect of this costs issue, I think it is a point of construction on the regulations -- so that I can be permitted to make an application for permission to appeal to the Court of Appeal against your Lordship's ruling on the costs in respect solely of myself?

MR JUSTICE OUSELEY: Yes, I will grant you section 42 permission to appeal to the Court of Appeal solely in respect of the order for costs in respect of the acknowledgement of service against you. I make it clear that I do so because there may be a point there which cannot be regarded as wholly unarguable as a matter of principle.

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