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 WC2A 2LL
		20 October 2008

1. MR JUSTICE SULLIVAN: In this application for judicial review, the claimant challenges the lawfulness of a decision letter dated 26 December 2007 in which the defendant Council said, in response to an application from the claimant for eight Traders' Parking Permits ("TPPs"), that:

"The Council's current policy is to grant a maximum of two permits per trader, so the Council cannot grant your client's applications for an additional six vehicles."

2. The relief sought in the claim form included a quashing order in respect of the defendant's policy setting a limit of two TPPs per trader, a quashing order in respect of the decision letter dated 26 October 2007, and a mandatory order compelling the defendant to reconsider the claimant's application for TPPs and/or to treat the claimant equally with another commercial organisation, BFA.
3. Further relief was sought by way of a declaration that the defendant could not rely on any Parking Contravention Notice ("PCN") that post-dated the claimant's first application for TPPs, and a monetary award was also sought as representing just satisfaction for what was said to be a breach of the claimant's rights under Article 1 of Protocol 1 to the European Convention on Human Rights.
4. Since the claim form was issued on 21 January 2008, matters have moved on, and the policy that was being applied in 2007 is no longer being applied. As from 26 January 2008, further TPPs were issued by the defendant Council so that the current policy is that each trader may apply for up to a maximum of six TPPs. The letter to the claimant setting out its entitlement to six TPPs is dated 1 February 2008. That letter also sets out a short extract from the report which recommended the adoption of the new policy.
5. It is significant that the claimant has not sought to argue that the new policy (that is to say, the policy that permits a maximum of six TPPs per trader) is in any way unlawful. While there are criticisms of the way in which the policy has been applied by the defendant to BFA, it is not suggested that the policy itself is unlawful. While the policy does not make explicit reference to the possibility of exceptions, it is clear from the defendant's summary and detailed grounds that it recognises that, as a general principle of public law, a public body may have regard to a policy, but must always hold the door ajar and be prepared to consider exceptions where appropriate.
6. It follows from this very brief recital of the material facts that much of the relief sought by the claimant is either now otiose or inappropriate or both. Firstly, there could be no question of making quashing orders in respect of either the policy that was being applied in 2007 or the decision letter dated 26 October 2007 because both the policy and the decision (that is to say, that the claimant should have only two permits) have been overtaken by the subsequent policy and the subsequent decision. The only live issue, therefore, in respect of those two matters -- the policy and the decision letter dated 26 October 2007 -- is whether it would be appropriate to grant declaratory relief if the court concludes that the policy and the decision letter in reliance on the policy were unlawful. I will return to that matter in due course.
7. In Mr Pievsky's skeleton argument on behalf of the claimant, a mandatory order was sought compelling the defendant to reconsider the claimant's application for a total of eight TPPs and/or to treat the claimant equally with BFA. So far as the first of those propositions is concerned, as I understand it the only basis upon which the claimant contends that it is entitled to eight TPPs is that it has eight vehicles. There is no suggestion, in a field where the demand for permits exceeds the supply, that the Council is not lawfully entitled to adopt some form of policy restricting the number of TPPs per trader. The defendant has to balance the interests of residents and others against the interests of traders, and as I have indicated, the present policy which enables up to a maximum of six TPPs per trader is not said to be unlawful. Therefore, there is no conceivable basis for requiring the defendant to reconsider the claimant's application for eight TPPs.
8. While Mr Pievsky rightly submits that the Council has a discretion to issue more than six permits in exceptional circumstances, there is nothing exceptional about this claimant's application, save for the fact that complaint is made that this claimant is not being treated equally with BFA. The only other basis on which it is said that eight TPPs should be allowed is that the claimant happens to have eight vehicles, but that could not sensibly be said to be an exceptional circumstance in itself.
9. Unfortunately, this claim has been bedevilled by a confusion in the claimant's approach between the lawfulness of the underlying policy that is operated by the defendant and the manner in which that policy has been applied to BFA. In very brief summary, the claimant's case is that BFA has historically been, and is still being, allocated more TPPs than it should be under the old and the new policies. The issue under the new policy revolves around the question whether the three BFA companies, which are separate legal entities, can sensibly be described as three traders, thus entitling it to 18 permits (3 x 6) under the new policy.
10. Both the claimant and the defendant have adduced evidence as to the corporate structure and the activities of BFA, but the one party that is conspicuously absent from this debate is BFA itself. While I would accept, in principle, that another commercial organisation such as the claimant, which feels that BFA has been treated unduly generously by the defendant, would have locus to challenge the manner in which the defendant dealt with BFA's application by way of judicial review, it must be elementary that BFA would be an interested party in any such application. There is no such separate claim before the court. BFA is not present, and it would not therefore be right for this court to express any views whatsoever as to whether or not the defendant had treated, or is treating, BFA unduly favourably.
11. There is a further problem in the path of the claim, and it is this: even if it is assumed that the defendant has wrongly applied its policy in relation to BFA and should therefore have given BFA a lesser number of TPPs, it does not follow that the claimant should, as a matter of discretion, be granted more TPPs by the defendant. The simple maxim "two wrongs do not make a right" is obviously apt in that context. The only consequence of a challenge to the manner in which the defendant had dealt with BFA's application might be a decision that BFA's permits should be reduced or reconsidered. But it would certainly not follow that the claimant should be granted any more than the six permits to which it is entitled under the present scheme, the lawfulness of which has not been challenged.
12. There is one further matter that I should mention because it bears on the claim under Article 1 of Protocol 1. It is contended that the policy as operated by the Council in 2007 was not merely discriminatory against the claimant, it was anti-competitive, in that it advantaged BFA, which was and is the claimant's competitor. The extent to which the claimant and BFA are genuine competitors is disputed by the defendant. While there certainly appears to be an overlap to a certain extent in respect of some of the activities of BFA and the claimant's activities, on the face of it, it would appear that BFA's business activities go much wider than those of the claimant. Moreover, there is no indication that the claimant is unduly disadvantaged by comparison with other businesses that are directly in the same line of business. Thus, it seems to me the evidential basis for the anti-competitive allegation is not satisfactorily made out, and in any event could not satisfactorily be made out without hearing what BFA has to say about the true nature and extent of its business activities. It is one thing to look at a website page, it is quite another thing to hear "live" evidence from the business itself as to what its business actually is.
13. Looking very briefly at the other relief sought, in respect of the declaration that the defendant "cannot rely upon any PCN post-dating the claimant's first application for TPPs", the first application for TPPs was made by the claimant on 10 October 2006 and was followed by a chasing letter on 11 October 2006. However, the only basis for that application was that the claimant simply listed the eight vehicles which it used in its business, and said that, due to the nature of the business, its engineers were constantly attending urgent jobs and needed access to their vehicles at all times. The fact that its employees were constantly attending urgent jobs and needed access to vehicles at all times would be a feature that would not be in the least unusual among those traders who were requesting parking permits. While not every trader would be constantly attending urgent jobs, given the cost of obtaining permits, by their very nature a significant number of those who would be applying for them would be those who would be providing such services, whether in the building, plumbing, electrical, gas or other fields.
14. There is a long history of dispute between the claimant and the defendant in respect of Parking Contravention Notices. However, if the claimant wished to challenge the lawfulness of any Parking Contravention Notice, then the proper avenue of challenge was either by way of a statutory appeal (within time), or if, as is maintained by the claimant, its grounds of challenge were not available in any statutory appeal, by way of judicial review. It is elementary that any such application for permission for judicial review would have to be made promptly and in any event within three months of the particular notice that was being questioned.
15. The basis for this claim appears to be (a) that the claimant should have been given a TPP in respect of each of its eight vehicles, and (b) that if that had happened, then no Parking Contravention Notices would have been served upon it. Neither of those assumptions is reasonable. First of all, as I have indicated, there is nothing in either the old or the new policy to suggest that the claimant should be given as many as eight TPPs, and secondly, even if it had been given the full number of TPPs that had been sought, there is nothing to suggest that it would not have incurred any PCNs. Indeed, the evidence is to the contrary, in that some (admittedly a small number) of PCNs have been issued in respect of those vehicles which have been given one of the six TPPs. So there can be no question of the court granting declaratory relief in respect of the PCNs.
16. So far as Article 1 of Protocol 1 is concerned, on the face of it, if the 2007 policy was unlawful, then either a quashing order in respect of that policy or, if the policy had been replaced by a new policy that was not unlawful, a declaration that the earlier policy was unlawful would, on the face of it, be just satisfaction under the Convention bearing in mind that damages are in any event at the discretion of the court. It is fair to say that while there are a number of very generalised assertions as to the harm that has been caused to the claimant's business, the harm is not particularised, nor is the financial effect in any way quantified. The claim again appears to rest on the proposition that the claimant is entitled, and was at all times entitled, to have a permit in respect of each and every one of its eight vehicles.
17. Moreover, the claim also appears to rely on the allegation that the policy was anti-competitive as between the claimant and BFA. One is driven back, therefore, full circle to the question: are the claimant and BFA in a similar position or not? That question cannot sensibly be answered in the absence of BFA. So, for those reasons, it seems to me that the only live issue in respect of which relief can fairly or sensibly be granted by this court today would be declaratory relief in respect of the 2007 policy, if it was concluded that that policy and the decision letter of 26 October 2007 that was based upon it were unlawful.
18. The manner in which the policy evolved and the extent to which that evolution was authorised by committee resolution is far from clear, notwithstanding a witness statement from Mr Nicholls which sets out the history of the matter. Mr Nicholls is the Customer Services Manager for the defendant Council and has effectively been responsible for the operation of the policy since he joined the defendant Council in 2001.
19. The spur for the policy was the decriminalisation of parking enforcement in July 2001. To cut a very long story short, in 2002, in response to representations from trading interests, the defendant decided to introduce Traders' Parking Permits. By way of a pilot scheme, there was to be a ceiling of 150 permits because the defendant wished to assess the extent to which Traders' Permits would impact on residents' parking, and importantly, it was proposed to limit the issue of permits to a maximum of two vehicles per business. It would seem that because of slow take-up in the early days, the limit of two permits per business was not adhered to. It appears that this was permitted at officer level, and the breach of policy was not expressly authorised by the Committee. In the event, applications soon picked up, and no doubt partly because some of the earlier applicants had received far more than two permits, the ceiling of 150 was reached. When that ceiling was reached, it is said that "the Council", although I suspect it was, in reality, the officers, reapplied the two TPPs per trader policy. Thus there was a waiting list, and as those who had permits and who ceased to reapply so places became available out of the 150, those on the waiting list were allocated the "spare" permits on the basis of two per trader. As the waiting list grew, so did the amount of permits that were permitted. In 2005, the number of Traders' Permits went up to 400.
20. It is to be noted that in the 2005 Environment Committee Report, which can be found on page 143 in the bundle, in the same paragraph 11.1 that increases the number of permits from 300 to 400, it is said: "Only one trader permit would be issued to any business who is on the waiting list". It would seem that this limit too was not adhered to because, in practice, as soon as someone came to the top of the waiting list, they were allowed a maximum of two permits rather than one. There were further amendments to the scheme increasing the number of permits from 450 to 500. That was the position when the claimant wrote in October 2006 and asked for a permit. In response to that request, by letter dated 29 March 2007, the senior processing officer, on behalf of the Director of Environment, said:

"Unfortunately, Brighton & Hove City Council has a limited number of Traders permits that can be issued in the city and only two per individual business.

Currently only a maximum of 500 Traders permits can be issued in the whole of the city at any one time.

In three months time the central Brighton review will herald new figures and there will be discussions over any increase of additional permit capacity, including Traders permits.

If Glowzone Ltd wishes to take the two available Traders permits then please reply with two chosen vehicle registrations that were included in your previous letter, along with a new cheque of £150."

The cheque for £600 was returned to Glowzone.

21. By way of background to that letter, although the claimant was not at the top of the waiting list, Mr Nicholls considered that it should be given two permits immediately, at least in part because of earlier discussions that he had had with the claimant and earlier correspondence.
22. Following the decision of 29 March 2007, the claimant's solicitors became involved and correspondence ensued. At or about that time, the claimant became aware of the fact that BFA appeared to have a large number of permits, so the claimant's solicitors pursued that aspect of the matter with the defendant. In due course, and following a great deal of correspondence, the defendant acknowledged that BFA did indeed have a large number of permits. The final number was 21, but the explanation was given that they had applied in the early stages of the pilot scheme when the limit of two per trader was not being applied, all their applications had been successful, and because they had continued to renew their permits every three months, they had been allowed to keep all the permits that they had obtained at the beginning of the scheme. So that was the explanation as to why BFA and a number of other applicants for permits had received more than two permits.
23. In later correspondence, the defendant said that, in addition to 21 TPPs issued to BFA, one trader had eight permits; another had seven; another had five; seven had four; four had three; 31 and two; and 328 had one permit. Thus, the deficiencies in the existing scheme, that is to say that some traders who had applied early had obtained a very large number of permits which they had retained, whilst others were limited to two permits only, were pointed out in forceful terms to the defendant by the claimant's solicitors in correspondence between March and October 2007, when, in effect, the defendant simply reiterated its earlier decision.
24. Notwithstanding Mr Beglan's valiant efforts to persuade me that the policy as operated by the defendant in 2007 was lawful, I am entirely satisfied that had any reasonable person considered whether the policy was operating in a fair and rational way on the evidence available by October 2007, the answer would have been an emphatic "no". It matters less perhaps how the policy had evolved, but the position by 2007 was indefensible, in that some organisations such as BFA had a large number of permits simply because they had applied at the outset of the scheme, and it would appear that no consideration whatsoever was given as to whether or not they should be required to disgorge some of their permits so that a more equitable scheme could be arrived at whereby a more equal number of permits was made available per trader. When I say no consideration was given to that issue, that in fact is no criticism of the Council, prior at least to October 2006. That is for the simple reason that until then, as Mr Beglan rightly points out, no one appears to have criticised the scheme or to have suggested it was unfair, or to have complained about the need to join a waiting list. There can be no doubt that, in principle, the operation of a waiting list system was reasonable, just as, in principle, I would accept the submission that it was lawful to distinguish between renewal applications and fresh applications. What was not lawful was to fail to respond when the deficiencies of the scheme were pointed out, and at least to consider whether by means of suitable transitional arrangements those who presently had very large numbers of permits should be required to give some of those up so that they could be redistributed to those who were waiting on the waiting list. That was not done prior to October 2007. The letter simply relies on the policy, and to the extent that the policy was flawed and unfair, so the letter would equally be unlawful.
25. The letter itself states that the Council "cannot grant your client's application for an additional six vehicles", and although I accept that such letters should be read in a benevolent way, it does appear that there was here a rigid and inflexible application of the policy without consideration of whether or not there ought to be some flexibility introduced or some discretion exercised in respect of this particular application.
26. I should make it perfectly clear that that finding would not be in the least likely to have led to the conclusion that the claimant should have received as many as eight permits (one in respect of each one of his vehicles) at that time, ie, at a time when the general policy was that those who came to the top of the waiting list and became eligible would be entitled to only two permits.
27. There are further complaints that the letter does not contain any reasons. In my judgment, that would not have been fatal. This is the sort of case where there is no express obligation in the statute to give reasons. Fairness requires reasons, but it does not require them to have been given in the letter of 26 October 2007. The subsequent explanation that was provided in the detailed and summary grounds would have sufficed, if I had concluded that the underlying policy which was still being adhered to in October 2007 was a fair and rational one, and I have indicated it was not.
28. It is only fair to the defendant to say that it clearly recognised that at the very least the policy was not satisfactory and would require to be reviewed. The letter of 29 March 2007 had referred to a review that at that time was expected in three months' time. The review took slightly longer than was expected so that the new policy was not introduced until January 2008. In one sense, the new policy is a clear indication of the extent to which it was recognised by the defendant itself that the old policy could not be sustained. I say that because the new policy imposes a limit of six permits per trader, whether old or new, ie whether one who is renewing earlier permits or one who is applying newly for a permit, so that all are treated equally, and the mere fact that a trader applied many years ago does not entitle it to renew a large number of permits.
29. It is perhaps a matter of regret that the defendant did not feel able to acknowledge to the claimant the unsatisfactory nature of the policy as it was being operated towards the end of 2007, by which time the claimant's complaints about the policy should have put the defendant on notice that something needed to be done, and say that all would be remedied when the new policy came into force. The end result was that, by seeking to continue to defend the old policy, the defendant effectively provoked the judicial review proceedings which could so easily have been avoided by an acknowledgment that the old policy had to be changed, and indeed would be changed, as happened in January 2008.
30. The upshot of this consideration, in particular because the defendant still does not acknowledge that there was any defect in the earlier policies, is that it would be appropriate to give the claimant declaratory relief in respect of the unlawfulness of the policy prior to 26 January 2008, and declaratory relief in respect of the letter dated 26 October 2007 insofar as it was based upon that unlawful policy, but to refuse any further relief because the vice that existed in the policy, that is to say that those who had applied at a very early stage had obtained large numbers of permits which they were not required to disgorge even though renewals were made every three months, has been addressed in the new policy. Moreover, there is no suggestion that the new policy limit of up to six per trader is in any way unlawful.
31. As I have indicated, insofar as the claimant wishes to complain about the defendant's decisions in respect of BFA, those decisions which, as I understand it, have been made in the light of the new policy, ie they post-date the claim for judicial review and are completely fresh decisions, would have to be the subject of fresh proceedings by the claimant if so advised, and those proceedings would have to join BFA as an interested party.
32. Beyond that, in my judgment, the claimant is not entitled to any further relief, for the reasons I have given.
33. Yes, Mr Pievsky.
34. MR PIEVSKY: My Lord, I am very grateful, and perhaps one could observe that we are, with great respect, quite near the position we were in this morning, and we are grateful to you for having heard the argument. There does now follow the question of costs.
35. MR JUSTICE SULLIVAN: Yes.
36. MR PIEVSKY: I am not sure -- I do not think a summary of costs has reached you yet.
37. MR JUSTICE SULLIVAN: No, I do not think it has.
38. MR PIEVSKY: My Lord, the way the costs assessment is set out is in three sections: A, B and C. A relates to the costs from effectively the first application in 2006 to March 2007; B is the March 2007 application to 26 October 2007, that was the date of the decision; and then C is an undifferentiated section dealing with the decision that you have effectively declared was unlawful to date. What your Lordship asked me earlier this morning was how much of the costs in October go up to February 2008, and my instructions are that they amount to costs of £17,325. My Lord, could I just clarify something? (pause)
39. Those are from 4 October to 1 February. I am sorry, that is not quite what I had understood, but that is, as I understand it, the costs from the first time when advice was sought about the continuing position of the Council in relation to BFA and TPPs, certainly from me.
40. MR JUSTICE SULLIVAN: There was a claim form. You drafted the claim form, did you not? Sorry, you drafted the grounds in the claim form.
41. MR PIEVSKY: Yes.
42. MR JUSTICE SULLIVAN: You signed those.
43. MR PIEVSKY: Yes. My Lord, I accept we are effectively in your hands. Of course, we cannot claim the entire amount. You may have views on the size of the amount, in any event. We have not successfully obtained all of the relief that we want. However, on the other side of the coin, at the time of lodging the claim, there was an unfair and unlawful situation, which the claimant was right to seek to challenge, and, in my submission, he has been vindicated in that, and the Council's consistent approach has been to deny that there was anything wrong, and given (a) your Lordship's judgment today, and (b) your Lordship having accepted on 1 February that there was something wrong, the claimant should have his costs at least of that period, in my submission, going into the costs from before that period as well, insofar as it dealt with the earlier problem relating to BFA.
44. MR JUSTICE SULLIVAN: Yes, thank you very much. What do you have to say about that, Mr Beglan?
45. MR BEGLAN: I have my own application in light of your Lordship's judgment. I will take it by reference to the documents in the bundle, if I may. But just before I develop that, my learned friend's suggestion before the court is that £17,000 worth of work was done, I think in three or four months between October 2007 and January 2008, as I understand his submission. In my submission, that is an enormous amount of money in relation to a judicial review, and if one looks at the overall total of £60,000, that again -- one is used to seeing totals in the region of £10,000 or £15,000 in these kinds of cases, and our costs were £10,000. I quite accept that there ought to be a significant up-lift in relation to those, but a figure of £60,000 is, in my submission, out of all proportion to what this court is used to seeing in applications of this type.
46. Can I invite my Lord to turn to page 373 of the bundle? That is the correspondence in which the claimant set out the terms on which they were prepared as a minimum to compromise these proceedings. I do not know if my Lord has taken the opportunity --
47. MR JUSTICE SULLIVAN: Let me have a look. No, I did not really deal with the correspondence after the claim.
48. MR BEGLAN: My Lord, there was enough there in the bundle.
49. MR JUSTICE SULLIVAN: It was bad enough before the claim, yes.
50. MR BEGLAN: But can I invite my Lord to just glance through that, and to take a note of the three minimum criteria that were set out at page 374 as being the basis on which the claimant --
51. MR JUSTICE SULLIVAN: Yes. (pause)
52. MR BEGLAN: So my Lord sees what was being suggested there was in relation to August. On point 1, the claimant has lost. On point 2, the claimant has lost, and that is significant because we are talking about 340 Parking Contravention Notices or thereabouts. Third, the suggestion was that we ought to be paying the whole of the costs in this matter, and next I just want to rehearse very briefly the submission I made earlier when I was indicating to my Lord the basis on which we suggested that we would be prepared to make a contribution of £5,000 to be set-off to the claimant's costs. My Lord, these issues were raised in May 2007. My Lord knows that by January 2008 the position had changed in that there were six months worth of surveys going on in the meantime. In the pre-action protocol letter that we have seen, and indeed in earlier correspondence, the local authority referred to the academic nature of the continuing challenge. As to that continuing challenge, my Lord has not granted any substantial relief. The relief is in relation to the old decision, which was overtaken by the policy, and those matters are plainly referred to in the pre-action protocol letter.
53. Finally, I would take my Lord back to the reply in this matter, behind tab 5, and this was a document filed and then re-filed about three months after the policy had been adopted, giving the reasons why it was important for the claimant to continue with this challenge. On the fourth line of paragraph 7:

"The claim is not however 'academic', because the defendant still wrongly asserts that it was never arguable in the first place [my Lord has been against me on that point], refuses to pay the claimant's costs, continues to maintain that it is entitled to rely on PCNs [we won on that issue] ... refuses to pay compensation [we won on that issue], and will no doubt reactivate its previously abandoned attempts to enforce statutory demands [they were in relation to PCNs, an issue in relation to which we have been successful]."

54. The claimant is therefore forced to press on, in a sense, and then it continues:

"In addition, matters have moved on once again."

But one knows that there was no amendment to the grounds to then pursue the matters that were said to be disadvantageous to the claimant in relation to the 2008 policy. So, in my submission, when the claimant, bearing in mind this is a judicial review claim and the obligation is on claimants in these kinds of case, it was incumbent on the claimant to look at the matter at that stage, and on the substantial reasons that were being taken forward, they have been not been successful. On the matters that were raised on 21 August, they have not been successful, and in those circumstances, I would invite my Lord, notwithstanding our loss on the old policy, to invite the claimant to pay -- or to order the claimant to pay our costs from a realistic period after the adoption of the new policy. In my submission, the appropriate date would be 17 April 2008, the date of the amendments to this reply.

55. MR JUSTICE SULLIVAN: Yes.
56. MR BEGLAN: My Lord, if my Lord is against me on that and decides to award the claimant a significant proportion of their costs, then we would invite the court to order a detailed assessment, because we find it quite difficult to understand how it is said that about £17,000 worth of costs was incurred between October 2007 and January 2008.
57. MR JUSTICE SULLIVAN: The difficulty, it seems to me, is that, whilst in light of my conclusion that the claimant was justified in commencing judicial review proceedings seeking some sort of relief in respect of the old 2007 policy, which you insisted in saying was lawful and carried on saying so, the great difficulty, it seems to me, is that by asking for far too much and carrying on pursuing the claims about the Parking Contravention Notices and various relief in respect of whatever was done to BFA and so forth, the claimant almost forced the defendant into a position where clearly he had to defend. He cannot simply go along and concede the PCNs, for example. So we have the unfortunate position of someone, if you like, justifiably making a complaint about an element of decision-making, but then widening the net so wide that proceedings inevitably just carry on.
58. Have I got any detail of your costs? I do not know if I have.
59. MR BEGLAN: My Lord, I think they were filed, but I can hand a copy up.
60. MR JUSTICE SULLIVAN: I did not get either copies.
61. MR BEGLAN: We come in at an entirely modest £10,000.
62. MR JUSTICE SULLIVAN: This is split up, is it?
63. MR BEGLAN: My Lord, it does not make allowance for the costs that I have asked for, which are only the costs -- recognising my Lord's judgment -- only the costs after April 2008. As my Lord says, the details of remedy set out on page 3 of the bundle were never qualified and no restriction was sought to be placed on them, and my Lord has seen the letter of August.
64. MR PIEVSKY: Can I just very briefly reply?
65. MR JUSTICE SULLIVAN: Yes, you may, Mr Pievsky.
66. MR PIEVSKY: On the points on our application for costs, surely the key issue is what the claim was about. Of course, your judgment is that we have gone too far in the relief we sought. We have asked for things that we could not have got, but what were the pleaded issues between the parties? Where were the parties focusing their fire? My Lord, the answer to that is, almost exclusively, we were focusing our fire on the decision in October 2007, which was based squarely on the policy in 2007. Now, it is right, and I can see that my learned friend drafted the document and in the acknowledgment of service it was said this claim is academic, but that is not the kind of argument that says: "Look, we concede we are wrong, but this claim is now academic". It was: "We are right in all respects, and the claim was academic", and so we were entitled to carry on. There was no offer to pay the costs of having gone to court at that point, and so in a sense I stand by what was pleaded at tab 5. We were forced to press on and your Lordship's judgment is very clear. We did not do as well on relief as we had asked for, but the main aspect of the claim was the policy that applied to us at the time of the decision and the decision itself, and we have won on that.
67. MR JUSTICE SULLIVAN: It might be said, Mr Pievsky, because as we know on costs nowadays it is not all or nothing, the court, if there are a number of issues raised, ought to have regard to the degree of success or otherwise on the various issues.
68. MR PIEVSKY: I appreciate that.
69. MR JUSTICE SULLIVAN: If you have half a dozen issues in the case and the defendant wins on three of them and the claimant wins on three of them, it may point you towards no order as to costs. If you look at this in terms of the extent to which (a) you have succeeded in terms of obtaining the relief you sought, and (b) Mr Beglan has been successful in resisting the relief you sought, it might be said that the honours possibly are not entirely even and they might fall slightly upon him, I do not know, might it not?
70. MR PIEVSKY: It may well be, I am sure Mr Beglan would say so.
71. MR JUSTICE SULLIVAN: I am sure he would.
72. MR PIEVSKY: But I say that the real emphasis should be on the issues between the parties, and of course we would have had an argument -- if my Lord had found the decision was unlawful and we needed to have an argument about what was the appropriate form of relief, we might have had to turn up at another hearing and argue about that, and I would not have done as well on that day as I did when your Lordship said that the policy and the decision at issue were unlawful, and the mere fact, with great respect, that you have dealt with it in a slightly different way should not alter the fact that we have substantially won on the matters that brought us to court and that were not dealt with in the way that they should have been by this defendant, who should have recognised at the time: "Yes, there is merit in this; we have acted unlawfully, and we will change our approach". If they had, the likeliest scenario is that we would not have been here.
73. MR JUSTICE SULLIVAN: I am happy to have any further observation, Mr Beglan.
74. MR BEGLAN: My Lord, I will just reply in one sentence, if I may, on my application for costs. The object of getting the decision and the policy quashed was not as an end in itself. That ceased to be an end in itself in January 2008. The purpose was to avoid the 340 PCNs, and on that substantial issue, the claimants have lost.
75. MR JUSTICE SULLIVAN: In assessing whether or not there should be any order as to costs in favour of either party, and if so, what that order ought to be, I have had to have regard to the whole of the circumstances, including the extent to which the parties have or have not succeeded on various issues in the case. The mere fact that a party has succeeded on one out of a large number of issues does not mean to say, nowadays, that that party gets its costs.
76. In my judgment, the reality of the matter is that, while the defendant should, in my view, have conceded that the earlier policy was unlawful, by the time it had adopted the new policy in January 2008, that really should have concentrated the claimant's mind. It should have considered the extent to which it was still appropriate to pursue the application for declaratory relief in respect of the earlier policy, what would be gained by it even if it was granted, and the extent to which it was appropriate to pursue the orders for mandatory relief, and in particular declaratory relief in respect of the PCNs, and declaratory relief in respect of the financial compensation. It does seem to me, looking at the matter overall, the claimant has lost on distinctly more of the issues than it has gained. So while it was justified in making the claim, it was most certainly not justified in pursuing the claim to the very extensive extent that it did so in this hearing.
77. It seems to me in reality there was no way in which the defendant could sensibly have conceded to this claim and therefore avoided the hearing. In these circumstances, it seems to me that the fairest order is to leave both parties to pay their own costs. So I make no order as to costs. In some way it might be said that the defendant, in resisting this claim, was put to greater costs, that is to say, in resisting those parts of the claim on which the claimant did not succeed, than the claimant was reasonably put to costs in terms of putting in the claim form challenging the decision. So to that extent, the order might be said to be against the defendant's interest, but looking at the matter overall, I think that the fair order is that there should be no order as to costs. That is the order that I make. Thank you.