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
		3rd October 2007

Wednesday, 3rd October 2007

1. MR JUSTICE SULLIVAN: In this application for judicial review, the claimant challenges the defendant's decision to make a temporary traffic regulation order ("the Temporary Order") under s.14(1)(b) of the Road Traffic Regulation Act 1984 ("the Act") to close the gap in the central reservation at Fingle Glen junction on the A30 west of Exeter ("the Junction"). The relevant part the A30 is a dual carriageway road. The junction is an at grade junction which enables traffic travelling westbound on the A30 to turn right, across the eastbound carriageway onto the C50 (the old A30) towards Tedburn St Mary, which lies to the north of the A30. It also enables traffic from the C50 to cross the eastbound carriageway on the C30 to join the westbound carriageway on the A30, travelling towards Okehampton. Closure of the gap would prevent those right turning movements.
2. Section 14 provides, so far as material:

"(1) If the traffic authority for a road are satisfied that traffic on the road should be restricted or prohibited -

(a) because works are being or are proposed to be executed on or near the road; or

(b) because of the likelihood of danger to the public, or of serious damage to the road, which is not attributable to such works; or

(c) ...

the authority may by order restrict or prohibit temporarily the use of that road, or of any part of it, by vehicles, or vehicles of any class, or by pedestrians, to such extent and subject to such conditions or exceptions as they may consider necessary.

...

(3) When considering the making of an order or the issue of a notice under the foregoing provisions an authority shall have regard to the existence of alternative routes suitable for the traffic which will be affected by the order or notice."

3. Section 15 provides, so far as material:

"(1) Subject to subsections (2), (3) and (5) below, an order under section 14 of this Act shall not continue in force -

(a) if it is in respect of a footpath, bridleway, restricted byway, cycle track or byway open to all traffic, for more than six months; and

(b) in any other case, for more than eighteen months,

from the date on which it comes into force.

...

(3) Where an order subject to the time-limit of eighteen months in subsection (1) above (in this subsection referred to as 'the temporary order') has not ceased to be in force and the Secretary of State is satisfied that -

(a) an order which the authority that made the temporary order proposed to make under any other provision of this Act has the sole effect of reproducing the provisions of the temporary order and continuing them in force; and

(b) in consequence of the procedure required to be followed in connection with the making of the proposed order that authority would be unable to make it so that it would come into operation before the temporary order ceases to be in force,

the Secretary of State may, subject to subsection (4) below, from time to time direct that the temporary order shall continue in force for a further period not exceeding six months from the date on which it would otherwise cease to be in force."

4. It is common ground between the parties that there is no statutory duty on the defendant to consult before making a temporary order under section 14. If the temporary order is to be followed by a permanent order under section 1 of the Act, then the proposal to make that permanent order must be publicised and those wishing to object to it will have an opportunity to submit their objections in writing. If, as as would be the position in the present case, the permanent order is proposed by the Secretary of State, she has a discretion as to whether or not to hold a public inquiry into those objections -- see Regulations 6, 7 and 8 of the Secretary of State's Traffic Orders (Procedure) England and Wales Regulations 1990 ("the Regulations").
5. The claimant no longer suggests that the defendant was under an obligation to hold a public inquiry before deciding to make the temporary order. The primary submission made by Mr Lloyd on behalf of the claimant was that the claimant (and others) had a legitimate expectation that there would be consultation before a decision was taken to make a temporary order, and that that expectation was breached by the defendant. Mr Lloyd accepted that there was no express promise by the defendant to consult. However, he submitted that the expectation of consultation was based on the past practice of the defendant in respect of this particular junction. He referred to paragraph 68 in the judgment of Laws LJ in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363:

" ... Where a public authority has issued a promise or adopted a practice which represents how it proposed to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. ... Accordingly a public body's promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body's legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances."

6. It is convenient to refer also to a passage in paragraph 69 of Laws LJ's judgment, referred to by Mr Brown on behalf of the defendant:

"Proportionality will be judged, as it is generally to be judged, by the respective force of the competing interests arising in the case. Thus where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate measure."

7. What then was the practice of the defendant in this case? The details are set out in the witness statements of Mr Gibbs, on behalf of the claimant, and Mr Roberts, the Area Performance Manager of the defendant.
8. In summary, the danger posed by right turning movements at the junction has been recognised for many years. In 1992 there was a public consultation in respect of a proposal to grade separate both the junction and the Woodleigh junction to its west. The Woodleigh junction was given priority and was grade separated in 2001.
9. Having dealt with Woodleigh, the defendant turned its attention to the junction. In 2001 there was further public consultation in respect of proposals to improve safety at the junction by doing that which the defendant now proposes, that is to say closing the central reserve gap rather than grade separation. That proposal resulted in numerous objections from local people and from the County Council, which is the higher authority responsible for the C50 road. Those objections led the defendant to work up alternative proposals for new slip roads at the Barton Head Road bridge, which crosses over the A30 to the east of the junction, in addition to the closure of the gap in the central reserve at the junction.
10. In 2003 there was public consultation on those proposals. In due course draft orders were published in 2005. That led to numerous objections and, unfortunately, the time taken to try to resolve those objections resulted in the statutory process lapsing because it effectively ran out of time.
11. So the defendant tried again and came back with a modified scheme which, again, combined closure of the gap in the central reservation with new slip roads at the Barton Head Road overbridge, which would have enabled westbound traffic on the A30 to access the C50 and traffic on the C50 wishing to go west on the A30 to cross over the A30 on the bridge and then join the westbound carriageway. The defendant arranged a public exhibition of those modified proposals on 13th October 2006 and a leaflet was produced for the purpose of informing the public about the proposals. That leaflet identified the problem:

"Movements to and from the westbound carriageway necessitate crossing the eastbound carriageway and its oncoming fast moving traffic. With eleven injury accidents, of which two were fatal, occurring in the last 15 years, the junction has a worse accident record than the national average for similar junctions."

12. The leaflet then set out the background of the earlier schemes and consultations. It identified "Other options previously considered", and they included:

"Closure of the existing central reserve crossing point, with westbound traffic using Alphington and Woodleigh Junctions for access. This would result in lengthy detours for drivers, and an increase in traffic on the C50."

13. The leaflet then set out "Where are we now?" and also explained "What happens next". It was intended to publish the draft orders in October 2006. Following publication there would be a six week period during which objections or expressions of support could be made and a decision would then be taken as to whether a public inquiry was necessary.
14. There is no doubt that the modified slip road scheme at the Barton Head Road overbridge was the defendant's preferred option. Unfortunately, the defendant's hopes were dashed because it became clear that funding would not be available. In turn, the defendant dashed the claimant's hopes in a letter dated 14th December 2006, which said:

"The publication of draft orders for the proposed £3 million improvement of Fingle Glen Junction took place on 12 October, and 253 members of the public visited an exhibition at the nearby Pathfinder village hall on the following day. The proposal included the use of the adjacent Barton Head bridge to form a ready made flyover for traffic wishing to exit or access the westbound carriageway of the A30 thus enabling the central reserve gap to be closed.

Following the publication of the draft orders, a total of 113 objections were received along with 136 letters of support. As a result a Public Inquiry would be needed if the improvement scheme as proposed were to proceed. Unfortunately an extended programme required to include a Public Inquiry means future funding for the scheme cannot be guaranteed at this time and the Agency has, therefore, decided to proceed with the safety scheme for the closure of the central reservation alone.

The Highways Agency consider the safety of the travelling public of paramount importance and wish to avoid any further delay in making this junction as safe as possible. The closure of the gap will be carried out under a Temporary Traffic Regulation Order which will be in force for a period of 18 months. During this period the effects of the closure will be monitored and views sought as to whether the closure should be made permanent."

15. It is the decision in that letter that is the subject of the challenge in these proceedings. It is most unfortunate from everyone's point of view, both the claimant and the defendant, that hopes having been raised by the public exhibition that a slip road scheme might be provided, those hopes were dashed when it became clear that funds would not be made available for such a scheme.
16. In his witness statement, Mr Roberts explained that once it became clear that funds not merely were not presently available, but were not likely to become available for the foreseeable future, he had to decide what to do. He decided that because of the funding constraints there was no realistic prospect of taking forward the slip road scheme. Doing nothing was not a realistic option, given the safety implications, so he decided that the central reserve gap should be closed.
17. As he explained in paragraph 28 of his witness statement:

"Having decided to close the central reserve gap I then needed to decide a time scale for this work and the type of order to use. Having taken the decision to close the gap my aim was to eliminate the genuine risk of serious and fatal accidents at this location. I wanted to do this as quickly as possible to prevent further injury or death. A permanent order could have taken 3 months or 12 months if a public inquiry was needed. Before seeking to make a permanent order I wanted to see the effects of a closure on the C50, and gather any views based on the experience of traffic not being able to use the central reserve gap. So there were two reasons for using a temporary rather than permanent order:

- Because of the danger of further fatal and serious accidents at the junction I wanted to deliver this safety scheme as soon as possible. I did not want to see any more fatal or serious accidents caused by right turning traffic;

- I wanted to gather information about the effects of closure on the C50 for use in the permanent order process, and also to enable funds to be properly focussed on suitable mitigating measures on the C50. I also wanted members of the public who expressed a view during the permanent order process to do so based on experience rather than on subjective fears."

18. He explained that his plan was to close the gap using a temporary order in the first instance and then to seek to progress a permanent order allowing sufficient time for a public inquiry, if needed. The aim is to deliver the permanent order before the end of the temporary order.
19. Mr Roberts discussed the matter with the County Council. He met the Director responsible for local highways on 11th December, and on 15th December he met the officer, Mr Wilmington, who is responsible for the operation of the local road network.
20. The Council officers' response was to ask for three things: Firstly, there should be the opportunity for the public to be told and their views heard prior to the closure; secondly, there should be mitigation for the extra traffic on the C50, and thirdly, there should be survey work to fully establish changed traffic patterns and the effect on the C50. Those three matters were agreed and, to a greater or lesser extent, have either been started or completed.
21. The County Council objected to the closure of the gap. Its resolution makes it clear, however, that that objection is on the basis that the County Council wishes to see the implementation of the slip roads proposal and it contends that more central government funding should be made available to enable that to happen. The Resolution says, in part, that:

"the executive lobby government for resources to be allocated to this important scheme which is justified on road safety grounds and will avoid the displacement of accidents onto the county road network".

22. Thus, while it is clear that the local highway authority is understandably anxious to avoid any displacement of accidents onto the local road network, it nevertheless is at one with the defendant, that the closure of the central reserve gap on the A30 is an important scheme which is justified on road safety grounds.
23. Although the claimant complains that the decision was effectively taken in the letter of 14th December 2006 and that thereafter there was no consultation, merely "briefing" of local interests about the reasons for the defendant's decision. It is important to consider what happened following the letter of 14th December in a little more detail. Perhaps understandably, there was a lull before the storm over the Christmas holiday. After the Christmas holiday had finished, the objections started to come in and Mr Roberts was asked to attend a meeting at the Fingle Glen Golf Club on 12th January to explain the position to a number of businesses and Councillors. He attended that meeting, heard the representations and explained the defendant's proposals. He summarises the concerns expressed at the meeting, namely loss of business through loss of passing trade, the effects of longer journey lengths and, in particular, the impact they would have on the local economy, the extra time that journeys would take and the extra traffic that would use the C50 and the extra accidents that would happen on the C50.
24. To an extent, objectors raising those points were preaching to the converted because the defendant in the leaflet for the exhibition on 13th October had made it plain that the reason why the option of simply closing the central reserve gap had been previously considered and not adopted was that it would result in lengthy detours for drivers and an increase in traffic on the C50. So in general terms the defendant was well aware of those matters and that was precisely why, if the funds were available, it would have much preferred to have adopted the proposed slip road scheme.
25. Following that meeting, even though Mr Roberts considered that the fears expressed were not properly based on the evidence, he arranged for a further analysis of the safety aspects and in particular an estimation of the likely impact on the accident numbers on the C50. That work was done and in a letter to the claimant on 16th January 2007 the defendant set out the concerns that had been expressed by the claimant and others and addressed them one by one. For example, in respect of loss of business it was said:

"Even if the closure of the gap were to result in loss of business for the west bound road users, which would be regrettable were it to happen, I do not regard this as a compelling reason for not undertaking safety improvements to the trunk road."

26. The responses were in bullet point form but there is no doubt that each of the concerns that had been identified was addressed and answered. I readily appreciate that the claimant does not agree with the answers, but there can be no doubt that the concerns raised were considered by the defendant.
27. Following that meeting on 12th January, Mr Roberts met Councillors and also County Council Officers at other meetings in January and February. On 16th February he met the Member of Parliament for the constituency. The MP suggested an alternative scheme of keeping the junction fully open, but subjecting the A30 around the junction to a 50 miles per hour speed limit, enforced by speed cameras. Mr Roberts says that he considered that suggestion, but concluded, first, it would not eliminate accidents involving right turning vehicles, particularly because it would not eliminate speeding and might well compound the problem of right turning traffic misjudging the speed of vehicles travelling at excessive speed compared to the reduced speed limit. Second, it would increase journey times for all vehicles on the A30 which would be contrary to the aim of one of the other PSA targets the Agency has: V13 improving journey time reliability.
28. In February Mr Roberts again met with Councillors and agreed to submit another bid for funding for the slip road scheme, but he declined to postpone his plan to close the gap as quickly as reasonably possible.
29. Later on that day, Mr Roberts attended an open meeting in the Tedburn St Mary village hall. The meeting was very well attended with some 250 people. The local television was there. All the Councillors, businesses and members of the community that he had previously met, together with the MP, were present and they reiterated the concerns that they had already expressed. It is perhaps of significance that almost all of those present who were wanting the gap kept open were wanting it kept open until a slip road had been constructed, ie, their objection was implicitly based on the premise that central government would come forward with the necessary funding so that it was not necessary for Mr Roberts to cut his coat to suit the cloth available.
30. Mr Roberts concludes at paragraph 48 of his witness statement:

"It is still the Highway Agency's intention to use a temporary traffic regulation order to close the gap and remove the danger of fatal and serious accidents at Fingle Glen, should the Court permit. The intention is then to publish draft orders for a permanent closure. The process for a permanent closure allows the public to express their views, perhaps at public inquiry. The benefit in closing the slip road using a temporary order is that it will quickly eliminate accidents at Fingle Glen involving right turning traffic. It will also allow a more thorough consideration of the effect of gap closure to be made during the permanent order process by making available information obtained from our surveys during the temporary closure."

31. I realise that the claimant strongly disagrees with many of the views expressed by Mr Roberts and a number of witness statements have been filed on behalf of the claimant, setting out the objections to the proposed gap closure from the point of view of the claimant. However, it is important to appreciate that these proceedings are not an appeal against the Agency's decision on the merits. The court is not in a position to evaluate, for example, whether the gain from reducing the risk of accidents on the A30 outweighs the disadvantages perceived by the claimant.
32. Mr Brown submitted that the practice that had been adopted by the defendant in this case had given rise to no legitimate expectation whatsoever because in the context of the scheme that was the subject of the exhibition on 13th October 2006 there would have had to be a consultation process in view of the statutory requirements that applied to the orders that would be necessary to implement the slip road scheme. The procedures involved in making those orders would have given an opportunity for objections to be made and would have provided for a public inquiry if there had been objections. He submitted that it would be most unfortunate if, because the defendant consulted where it was statutorily required to do so, that should be taken as giving rise to an expectation that it would consult in every case.
33. There is considerable force in that submission in principle, but the fact remains that in respect of this particular junction, on the defendant's own case, there was public consultation in 2002 on a proposal simply to close the gap. I appreciate that the suggestion was not at that stage to close it by way of temporary order; the closure was put forward as a permanent proposal. But in the very particular circumstances here, I would be inclined to the view that there was some expectation of prior consultation. It is, however, unnecessary to reach a concluded view about that because I am entirely satisfied that insofar as there was an expectation, that expectation was not in practice breached and if and to the extent that there was any breach then, to use the words of Laws LJ, the breach was "objectively justified as a proportionate measure in all the circumstances."
34. I say that for these reasons. The letter of 14th December 2006, which has been referred in to these procedures as the decision letter, gave notice of the Department's intention to make a temporary order. However, formal notice of that intention was not published until 20th March. That notice stated that the order would come into effect on 4th April. On 16th March the claimant had obtained interim injunctive relief preventing the defendant from closing the gap. Publication of the advertisement could not be stopped, but the defendant decided not to proceed with closure pending the outcome of these proceedings.
35. The claimant's complaint is that there was no consultation prior to the decision in the letter dated 14th December 2006, but as Mr Roberts' witness statement explained, and as I have attempted to summarise above, those who objected to what was proposed in the letter of 14th December 2006 thereafter had ample opportunity to make their views known to the defendant in January and February prior to the formal notification of the intention to make the order by way of advertisement. There can be no doubt that those who were opposed to the proposal took that opportunity and set out all of their objections in detail, as I have mentioned. The Department did not simply brush those objections aside, although that is the impression gained by the claimant. It considered the objections and responded to them, both in correspondence and at meetings and in Mr Roberts' witness statement. Although Mr Lloyd submitted that there had been a failure to take into consideration relevant matters, it is quite impossible in the light of Mr Roberts' witness statement to uphold that submission. It is plain that the defendant did consider the objections that had been made, but did not consider that they were so serious as to outweigh the safety advantages of closing the gap.
36. I put the matter in that way because the defendant itself considered that there were objections to simply closing the gap in the central reserve, namely that there would be lengthy detours for drivers and an increase of traffic on the C50. The practical question facing the defendant in the absence of sufficient funds for a slip road scheme for the foreseeable future was whether those objections were so serious that the gap should not be closed. That was the key question and there can be no doubt on the evidence that it was addressed by the defendant.
37. When I asked Mr Lloyd if he wished to identify any particular point that had not been considered by the defendant, he was not able to identify any significant omission. The claimant's contention that its views were simply ignored is, in reality, a complaint that while its views were considered, they were not accepted by the defendant.
38. Since the principle underpinning legitimate expectation is one of fairness, as explained by Laws LJ (see above) it is important to look at the substance of the matter rather than the form. In reality, following the "decision" of 14th December 2006, those objecting to the scheme had ample opportunity to put all of their points and it is very difficult indeed to see what could possibly be achieved by further consultation. Indeed, it does appear that the real objection is to the loss of the slip roads (see, for example, the County Council's Resolution) rather than the closure of the gap in the central reserve, as such. However, as explained by Mr Roberts in his witness statement, the loss of the prospect of the slip roads scheme is not the consequence of the proposal temporarily to close the gap in the central reserve. It is, rather, due to the lack of funds from central government and there has been, and indeed could not sensibly be, any challenge to his evidence that for the foreseeable future the funds will simply not be available to carry out the slip road scheme, which would be the defendant's preference.
39. Even if there had been some lack of opportunity for those objecting to the proposal to close the gap in the central reserve to make representations, so that there was a breach of their expectation of consultation, the breach would, in my judgment, be proportionate in all the circumstances, bearing in mind the factors identified in paragraph 28 of Mr Roberts' evidence. This is not a case where a public authority has entirely of its own volition changed its position. The change has been forced upon the defendant by the lack of funding from central government. In effect, the defendant was then faced with the position that it had to make the best of a bad job. The objective of seeking to deliver a safety scheme as soon as possible because of a desire to avoid more fatal or serious accidents caused by right turning traffic on the A30 is plainly a legitimate aim pursued by a public body in the public interest (see paragraph 68 of Laws LJ's judgment above).
40. Mr Lloyd accepted that that was the case, but submitted that even though the objective was a legitimate one, the means of obtaining it were disproportionate. The difficulty with that submission is that the order that is proposed to be made is a temporary one. It will give both those who are opposed to the proposal and those who support it an opportunity to see whether their fears or hopes are realised in practice. I appreciate that the claimant maintains that it will be too late if accidents occur on the C50. It would be of little comfort to those who have been injured that they will be able to make those points if and when application is made for a permanent order.
41. However, that argument, as Mr Brown points out, cuts both ways. Similarly, if matters were delayed until after there had been consultation and there was in the meantime an accident on the A30, it would be little comfort to those injured in that accident to know that eventually in the light of, in part, that accident record, steps might be taken to close the gap in the central reservation.
42. The short answer to the proportionality point is that if the claimant's fears are found to be justified, then there will be cogent evidence available which will have to be taken into consideration by the defendant in deciding whether or not it would be right to adhere to its present intention to make a permanent order, and if application is made for a permanent order, then there will be an opportunity to make those points by way of written objections to the order. The Secretary of State will then have a discretion as to whether or not to hold an inquiry and the more substantial the objections, all other things being equal, the more likely it is that that discretion will be exercised in favour of holding an inquiry. If the discretion is improperly exercised and an inquiry denied, then that decision can be the subject of challenge by way of judicial review.
43. Looking briefly at the factors mentioned by Laws LJ in paragraph 69 of his judgment, this is not a case where there was any express promise; atits highest, the past practice of the defendant in respect of this junction gave rise to an expectation that there would be some form of consultation before the Agency reverted to the earlier proposal simply to close the gap in the central reserve. However, there has been no detrimental reliance; there was no promise made to an individual or to a specific group, merely a practice. In these circumstances, the burden upon the defendant to justify a denial of such expectation as there was is not unduly high. As I have mentioned, in practice, there was no denial of the expectation because those who wished to make objections had ample opportunity to do so, but even if that is not the case, in all the circumstances it cannot possibly be said that proposing this temporary order is a disproportionate response to the circumstances in which the defendant found itself. I repeat, those circumstances are not of the defendant's own making. They stem from the non-availability of central government funding for its preferred scheme.
44. For completeness, I should mention that when granting permission, Irwin J observed,

"There is an arguable case that it is irrational and/or in breach of legitimate expectation where permanent closure is intended to proceed by way of a temporary order with physical closure. This may be thought to create an accomplished fact of physical closure with negative consequences for the local community without the consultation process which accompanies a permanent order."

45. It is accepted by the claimant that the legislative scheme envisages that there may be circumstances in which it is appropriate to make a temporary order as a precursor to making a permanent order (see section 53 above). Mr Lloyd did not pursue the submission that the defendant's conduct was irrational; rather, he argued, as set out above, that there had been a breach of legitimate expectation and he argued in the context of that submission that the decision to make a temporary order rather than to take other steps was disproportionate.
46. For the reasons that I have given above, I do not accept those submissions. For these reasons this application must be dismissed.
47. MR BROWN: My Lord, I am very grateful to you. My Lord, in these circumstances I do ask for the defendant's costs. I do not know if your Lordship has a schedule of the costs.
48. MR JUSTICE SULLIVAN: No.
49. MR BROWN: Can I pass it up. (Handed). I know, particularly bearing in mind your Lordship's experience of Treasury costs, the bottom line is one that will cause your Lordship's eyebrows to raise.
50. MR JUSTICE SULLIVAN: Gosh, yes, practically shoot off the top of my head!
51. MR BROWN: My Lord, it was in anticipation of that that I am not going to ask your Lordship to summarily assess in that sum. Before I ask your Lordship for costs, I should explain in part why the costs are unusually high, and I recognise that on behalf of the Treasury.
52. MR JUSTICE SULLIVAN: Yes.
53. MR BROWN: Your Lordship will appreciate that this case has been complicated in two respects. There have been numerous procedural issues along the way, not least that there was an injunction granted and time taken to think about what to do about that. There was an application for expedition. But more importantly, my Lord, this is a case where there has been a very high input as a result of answering questions, seeking a response from the claimant. I do not know if your Lordship has seen the claimant's statement of costs.
54. MR JUSTICE SULLIVAN: No, I have not.
55. MR BROWN: The overall figure is of the order of £10,500, but what is significant, my Lord, about it is that the time estimates which Mr Singer and Mr Gibbs give, they have a total of something like 307 hours spent in preparing for this case. If one adds my solicitor's time, one gets to something of the order of 175, which is still high, but when one compares it with the fact that the claimant is a litigant in person -- not a litigant in person, of course, because Mr Lloyd is here, but they have been acting very much without a solicitor acting. Even so, on a straight forward comparison basis, your Lordship begins to understanding why our hours are high. It is the amount of time that both sides have spent on this case.
56. MR JUSTICE SULLIVAN: Mr Brown, could I cut you short a little bit in that my inclination would be to say that given the particular circumstances of this case, it probably wouldn't be right to go for summary assessment unless there was a broad measure of agreement as to what the summary sum ought to be. If Mr Lloyd is happy with a particular figure, then I would take it, but if he is not happy, then I honestly think that the arguments are not the sort of arguments that I can fairly resolve on a summary assessment.
57. MR BROWN: My Lord, I understand that. I am not sure what answer I am going to get, although one of the points I know my learned friend will take on board, and your Lordship will be cognisant of in the overall scheme of things, sometimes one does better on a summary assessment for a rough and ready figure than one can do on detailed assessment.
58. My Lord, I recognise that 38,000 is a significantly high sum. There are reasons why it is that high. But my instructions, my Lord, are to ask for summary assessment in the figure of £25,000. It is a one-third reduction overall. My learned friend may be able to better that on taxation in a detailed assessment, but he may not.
59. MR JUSTICE SULLIVAN: Mr Brown, have you told Mr Lloyd that figure before? Is he just hearing it? So he has got to take instructions.
60. MR BROWN: I apologise, but it have needed instructions myself as to whether or not to --
61. MR JUSTICE SULLIVAN: Of course, I quite understand. Mr Lloyd, would you like a moment or two to discuss that with your clients? (Pause). I make it clear, if you reckon you can do better than that on detailed assessment, you can have detailed assessment. If you reckon you are better off with that, then I will take it.
62. MR LLOYD: My Lord, I am instructed that we do not accept that £25,000.
63. MR JUSTICE SULLIVAN: I think the sums involved are so significant and given the complications in the case that you mentioned, Mr Brown, I do not think I can do justice to the parties. It is such a huge reduction that it wouldn't be fair --
64. MR BROWN: My Lord, if it is not accepted, I recognise I can't possibly object to detailed assessment, but I would ask for the order that we have asked for.
65. MR JUSTICE SULLIVAN: Mr Lloyd, can you object to costs in principle?
66. MR LLOYD: I am going to mount an argument that this is a case of public interest where your Lordship should not award costs against the claimant. I rely, if I can turn to the White Book at page 1152, towards the end of 44(3)(8).
67. MR JUSTICE SULLIVAN: That assumes that the public service will be sufficiently generous to provide an up-to-date White Book in every court, and that is not an assumption you can make.
68. MR LLOYD: If I can read it out.
69. MR JUSTICE SULLIVAN: Yes, of course.
70. MR LLOYD: "In judicial review proceedings the court stated that

there were judicial review cases where public interest or analogous considerations made it inappropriate to require an unsuccessful claimant to pay a defendant's costs. There was, however, no bright line distinction between judicial review cases which did or did not involve a public interest challenge, nor was the presence or absence of any private interest a determining factor with regard to costs. A more flexible and nuanced approach was indicated by the statutory duty to have regard to all the circumstances. There could be different degrees under a wide spectrum of public interest, mixed with what might be greater or lesser amount of private interest",

and the case they glean that from is Smeaton v Secretary of State for Health [2002] EWHC 866 in this court, Munby J.

71. My Lord, there are a number of factors, I think, in reaching a decision on my submission you should consider. The first is that this is a small ad hoc group and they come from a small community, small businesses and private people. Like you, my Lord, we were shocked by the size of the claimant's schedule and we also ask you to bear in mind that there were attempts to mediate. You will see that that was initiated by the claimants on page 306 there is a letter from the claimant to the defendant suggesting this. There in fact was a meeting on 14th June.
72. MR JUSTICE SULLIVAN: Yes, I had not got those. Yes, thank you.
73. MR LLOYD: There was a meeting on 14th June. On 19th July the defendant wrote to the claimant, turning down any attempts to mediate and declaring an intention to continue with their case, with the closure. That is at page 315.
74. MR JUSTICE SULLIVAN: I do actually notice there is a Without Prejudice letter from the Treasury Solicitors included at 309, but I suppose I shouldn't read that.
75. MR BROWN: My Lord, that was an argument that we had, but the claimants were insistent that they go in the bundle.
76. MR JUSTICE SULLIVAN: Anyway, shall I look at this? Right. I see, we know about the Without Prejudice letter because this open letter says, "Following the Without Prejudice discussion."
77. MR LLOYD: I should imagine the Without Prejudice accepted costs.
78. MR JUSTICE SULLIVAN: My next page is 315. After 315 is a scrumple, obviously something happened. I don't have the end of the Treasury Solicitors' letter. Have you got that?
79. MR LLOYD: Yes, my Lord, it is only two paragraphs. It really concerns the point about expedition and the request for value management. That is the 316 which has been scrumpled in my copy too. (Handed).
80. MR JUSTICE SULLIVAN: Yes, right.
81. MR LLOYD: My Lord, the Treasury Solicitors have been dilatory in the conduct of this matter. They were late with their response to the letter before action, they have been late at a number of junctions. The need for this correspondence has largely been their failure to respond to matters. Their switched their fee earner at the last moment.
82. MR JUSTICE SULLIVAN: I think some of this might be relevant if we were not going to go to detailed assessment. We are now on the question of whether you should pay costs in principle. There was an endeavour to settle the matter, perfectly sensibly and properly, by both sides, but that didn't work out. So that does not seem that either of you could possibly be criticised for doing that. Indeed, it was very sensible. But at the end of the day there are indeed some public interest cases but they tend to be points of principle, which might have a marginal effect on one person, but actually have a huge effect, or an effect on a very large number of other people, say, particular interpretation of what may be able to to be incinerated in some cement kiln, or something like that.
83. This case, it seems to me, did turn, to a large extent, on particular practice in respect of this junction, and really it could not have had a wider significance than that, since we ended up saying there should have been consultation in the light of what they have done in respect of this junction. Frankly, it wouldn't go any wider than that; it wouldn't affect any other junction at all, as far as I can see.
84. MR LLOYD: It would have affected the whole community.
85. MR JUSTICE SULLIVAN: Of course it would have affected the whole community, I understand that, but in terms of whether this is a public interest point of the kind referred to in that extract of the White Book, but anyway. So there was attempts to settle, yes.
86. MR LLOYD: As Munby J said, there is no clear line about each public interest. We say there is sufficient public interest here for you to consider that you should not make an order for costs, or if you should make an order for costs, you should cap it.
87. MR JUSTICE SULLIVAN: Yes, thank you very much. I do not need to trouble you on that, Mr Brown.
88. I am satisfied that there is no reason to depart from the normal course, which is that the unsuccessful party in these proceedings should bear the successful party's costs. While it is perfectly true that exceptions can be made in public interest cases, it has to be said that this particular case turned very much, on any basis, on its own very particular facts. It did not raise any wider legal issue. I appreciate it was obviously a matter of considerable importance to the local community, but that is not infrequently the case. So I do not see that it is a sufficient reason to alter the normal costs position, nor do I think that there is any reason in terms of the conduct of the defendant or the Treasury Solicitor to disentitle it to a costs award in principle. However, given the amount of the costs claimed I do not think it would be fair to carry out a summary assessment. I am really not in a position to do that, and so the sensible course is for the costs to go off for detailed assessment.
89. MR BROWN: My Lord, I am very grateful.
90. MR JUSTICE SULLIVAN: Any further applications?
91. MR LLOYD: My Lord, my friend reminds me that I need to ask for permission to appeal.
92. MR JUSTICE SULLIVAN: You certainly do if you want it. If there is any particular point of law you wish to identify, otherwise I just take it that you rely on the argument you put.
93. MR LLOYD: I do indeed.
94. MR JUSTICE SULLIVAN: It hope you will not think it discourteous of me to say that I rely on my judgment in responding to those arguments as the reason why I do not give permission to appeal. I think there is no real prospect of success, given the particular facts of this case, and no other compelling reason which would justify the grant of permission to appeal. Thank you.