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
		14 May 2010

1. MR. JUSTICE NICOL: This is an application for judicial review. It grows out of proceedings in the Lands Tribunal. Electricity powerlines cross land owned by the claimants. The National Grid had a way-leave over the claimants' land but the claimants wish to establish their right to compensation. Absent agreement, such claims for compensation can be brought in the Lands Tribunal which has jurisdiction to resolve all issues on this matter. The claimants did so by making a reference to the Lands Tribunal in 2005. The claimants represented themselves. The National Grid acted through a firm of solicitors called Hammonds. The National Grid instructed as an expert a Mr. Cotterill. In January 2007, when a final hearing of the matter was due to take place, the National Grid was granted an adjournment. Amongst other things it wished to be allowed to instruct a second expert, Mr. Peter Green of a firm Brierly Green. The Lands Tribunal granted that application and made various procedural directions for the matter to be continued.
2. In circumstances to which I will need to return, the hearing took place in the Lands Tribunal on 10th April 2007 before His Honour Judge Gilbart QC. The tribunal was informed that neither Mr. Cotterill nor Peter Green were willing to continue to act as experts for National Grid. In those circumstances the National Grid sought and was granted extra time to allow it to instruct other experts. Judge Gilbart ordered that the claimants should pay the costs of National Grid of and occasioned by the making of its application for an extension of time. Those costs were to be paid on an indemnity basis and to be subject to detailed assessment if not agreed.
3. On 4th December 2007 these proceedings for judicial review were issued. They included a broad range of criticisms of a number of matters. Permission to apply for judicial review was initially refused in its entirety by Underhill J. When he considered the papers on 12th October 2007. The claimants renewed their application orally. On 18th April 2008 permission to apply for judicial review was granted following that oral hearing by Holman J. However, permission was given on a limited basis. The terms of permission were these:

"Whether or not paragraph 11 of the order made by His Honour Judge Gilbart QC on 10th April 2007, whereby the claimants should pay the costs of that hearing on an indemnity basis, be quashed."

4. The claimants sought to appeal that decision but Elias LJ on the papers on 2nd July 2009 and Arden LJ at an oral hearing on 26th August 2009 refused permission to appeal. Consequently, the only matter before the court is whether Judge Gilbart's costs order of 10th April 2007 should be quashed. Following permission an acknowledgement of service was lodged by the Lands Tribunal but, as is common where judicial review is sought of a court, the Lands Tribunal indicated in its acknowledgement of service that it did not intend to make any submissions. It did, however, draw attention to a further order which Judge Gilbart had made sitting in the Lands Tribunal on 13th September 2007. I will return to that matter.
5. The National Grid was properly identified as an interested party. It too filed an acknowledgement of service. It indicated that it intended to contest all of the claim. It made written submissions and provided copies of certain documents. Neither National Grid nor the Lands Tribunal have appeared at the hearing today. Dr. Riseborough and her husband Mr. Riseborough have, as they have throughout these proceedings, acted in person. I am grateful for the written and oral submissions which they have made. I add that the claimants sought disclosure in the course of these judicial review proceedings but that was refused by Mr. Tim Corner QC, sitting as a Deputy Judge of the High Court, in March 2009. The claimants also sought to have today's hearing vacated but that was refused by Simon J on 14th April 2010. Consequently today's hearing went ahead.
6. I turn to look a little more closely at why Judge Gilbart ordered the claimants to pay the costs of the hearing and application on 10th April 2007 and why he ordered them to be paid on an indemnity basis. He set out his reasons in what is entitled "judgment on costs". For anybody who needs to consider this matter I recommend that the entirety of that judgment be read. What I will be doing is merely summarizing some of its principal features.
7. The tribunal had before it a letter from Hammonds of 7th March 2007. This referred to a letter which they had received from Mr. Cotterill tendering his resignation as an expert for the National Grid in the Lands Tribunal proceedings. Mr. Cotterill had given a number of reasons. One was his heavy workload. Second was that he considered that the claimants had sought to intimidate him as an expert witness, most recently by threatening him with civil action for speaking to the Bradford Planning Department. I add that it is the claimants' case that when Mr. Cotterill had spoken to the Bradford Planning Department he wrongly purported to be acting on the claimants' behalf. That is a claim he vigorously denied. Thirdly, Mr. Cotterill explained that the claimants had consistently refused him access to their land to inspect it for the purpose of him giving evidence in the Lands Tribunal proceedings. Finally, he said that the claimants had persistently sought to impugn his integrity and that, although their allegations were groundless, he was concerned that this might lead to his evidence carrying less weight with the tribunal.
8. As to Mr. Green, the tribunal had a letter written to them and copied to the claimants on 29th March 2007. That referred to and copied a note which had been written to Mr. Green by his partner, Chris Jowitt. Mr. Jowitt said that the claimants had come to see him on 7th March 2007. He said that they had arranged that meeting in advance but without telling him what it was they wished to discuss. When the meeting did take place it transpired that they wished to discuss their dispute with the National Grid. They made various complaints about Mr. Green's conduct. Mr. Jowitt concluded his note by saying that they, that is the claimants, were making a veiled threat that in order to avoid bad publicity for the Brierly Green partnership, they would like Peter Green to withdraw from helping the National Grid on the case. Judge Gilbart said of this:

"... what I find extraordinary is that the claimants did not go and see Mr. Green but that they went to see one of his partners. That can have had only one purpose and that purpose can only have been that they wanted to bring pressure on the firm."

Hammonds drew this to the attention of the tribunal on 29th March 2007.

9. On 30th March 2007 the claimants complained that Hammonds had acted improperly by bringing confidential and privileged material to the attention of the tribunal. Judge Gilbart said that the objection was entirely misconceived. He said that their behaviour was a quite outrageous attempt to dissuade a new witness instructed by the National Grid from giving evidence. Judge Gilbart reminded himself of the Lands Tribunals Rules, rule 52. This provides at subrule

"(1): .... the costs of and incidental to any proceedings shall be in the discretion of the Tribunal".

10. That clearly echoes the statutory jurisdiction given to the High Court by the Senior Courts Act 1981 and the discretion which is now elaborated upon in Part 44 of the Civil Procedure Rules.
11. Judge Gilbart then first had to consider whether the behaviour of the claimants was unreasonable. That is because unreasonable behaviour is one basis for ordering costs to be on an indemnity rather than a standard basis. I remind myself that rule 52(4) of the Lands Tribunal Rules says this:

"If the Tribunal directs that the costs of a party to the proceedings be paid by another party it may settle the amount of costs by fixing a lump sum or direct that the costs be taxed by the registrar on such basis as the Tribunal thinks fit, being a basis that would be applied on a taxation of the costs of High Court or county court proceedings."

12. In the High Court costs may be assessed on either the standard basis or an indemnity basis. One of the reasons for deciding that costs should be assessed on an indemnity rather than a standard basis is because the paying party is considered to have behaved unreasonably.
13. Thus it was that Judge Gilbart directed his attention to whether he considered that the claimants had behaved unreasonably. He thought that the claimants had behaved in an outrageous manner since January 2007. He thought that the visit to Brierly Green had been a naked attempt to bring pressure to bear on the partner of someone who was a prospective witness against them. Their conduct of the case generally had been unreasonable. He then turned to consider whether the unreasonable behaviour had caused extra costs. He thought that it had. Mr. Cotterill had resigned in part because of their unwillingness to grant him access to their land. Secondly, he thought that their letter to Mr. Cotterill, written on 20th February 2007 -- that was the letter which had included the threat to bring civil proceedings against Mr Cotterill -- had been written to bring pressure on him. He said that was the only possible inference, particularly because of their behaviour a short time afterwards towards Mr. Green. Judge Gilbart said that their behaviour had been unreasonable. It had led to the need for a directions hearing. Costs would be awarded against the claimants on an indemnity basis.
14. After that hearing on 29th May the claimants and Mr. Cotterill jointly signed a letter addressed to Hammonds. This said:

"I, David Cotterill, unreservedly withdraw from the record paragraphs 1,2 and 4 (together with the final unnumbered paragraph) of my letter to Mr Paul Roberts of National Grid dated March 1, 2007."

15. I am going to interpose in this quotation from the letter of 29th May 2007 to explain those references. Paragraphs 1, 2 and 4 of the letter of 1st March 2007 said this:

"1. The Riseboroughs' actions, by their statements and use of language, have been to seek to intimidate me as an expert witness. The most recent and outrageous example being their threat of civil action against me personally, merely for speaking on the telephone to a member of the Bradford Planning Department. At no time did I purport to act on behalf of the Riseboroughs. I have a file note made at the time of my telephone conversation which records that my discussion with Mr Hutchinson dealt with the proposed extension to the Middle Mayroyd and the fact that it had been excluded from the planning permission that had been granted. It is quite preposterous for the Riseboroughs to suggest that I claimed to be acting for them. Why on earth should I need to when I can freely access the planning files as a member of the public?

2. The Riseborough have persistently refused me access to inspect their property. This situation has become ever more ridiculous with their most recent refusal despite their agreement to do so at the Lands Tribunal on 29th January. This makes a mockery of the tribunal and makes my role as an independent expert quite impossible. ...

4: The Riseboroughs by their misstatements (such as their reference to me attending the Bruton Knowles seminar with ... which of course I did not) have done their best to impugn my integrity in the eyes of the tribunal. Clearly, I accept that this may be a tactic and the way that some parties approach an arbitration of this sort. However, I am concerned that, although wholly groundless, such accusations may result in my evidence carrying less weight with the tribunal than it deserves. In these circumstances, I believe I am best serving the Lands Tribunal by withdrawing from this most unsavoury case."

16. The letter of 29th May 2007 continues:

"We, George and Margaret Riseborough, unreservedly withdraw from the record paragraph 2 of our letter to you dated February 20, 2007."

17. It is helpful to make sense of that reference to interpose a quotation from that letter. It said this:

"Incidentally, Mr. Hutchinson has informed us that Mr Cotterill, the Compensating Authority's witness, has already been in contact with him earlier on this matter. Mr Hutchinson also is on record as stating categorically that Mr Cotterill told him untruthfully that he was representing us. Please advise Mr Cotterill as to his future professional conduct (we would be grateful for a copy of the cautionary letter). Please also inform that we shall be calling Mr Hutchinson as a witness in civil litigation we shall be pursuing against him after conclusion of this matter of compensation. This is not the first time, of course, that Mr Cotterill has behaved in a totally unethical manner."

18. The letter of 29th May 2007 ended:

"We, Mr and Dr. Riseborough and Mr Cotterill, have agreed with each other not to discuss the contents of this letter further."

19. The letter of 29th May 2007 is referred to in the documentation from the claimants as "the joint letter". The joint letter was sent to the tribunal which was asked to rescind its order of 10th April 2007. This was one of the matters considered by Judge Gilbart on 13th September 2007. He said:

"I have no power to rescind the order of 10th April 2007."

20. In the course of the hearing I have reminded the claimants that judicial review will only be granted if the decision under challenge is wrong in law. It is not an appeal on the facts. The claim form and some of the claimants' written submissions ask that the order be set aside "because it was unsafe or unsatisfactory". That used to be the test applied by the Court of Appeal Criminal Division in deciding whether to quash a conviction. As it happens, even in that context it is no longer the test that is applied. More relevantly, it is certainly not the test for the grant of judicial review. There must be an error of law before judicial review is granted.
21. In deciding whether the decision of 10th April is infected by an error of law I must consider the evidence and material that was before the court on that occasion. New evidence cannot, at least not in circumstances such as the present, show that the original decision was wrong in law. One cannot show that a decision is wrong in law because, for instance, it failed to take account of evidence that was not available to the decision maker at the time of the decision in question. In my judgment it is not possible to establish that Judge Gilbart's decision of 10th April 2007 was wrong in law by reference to evidence that has been produced subsequently, and what I refer to in particular is the joint letter. What I think the claimants really want is an appeal on the facts; an appeal, in addition, at which new evidence could be received and at which they could ask for the decision that costs be awarded against them should be rescinded in the light of the new evidence. However, the statutory system in which the Lands Tribunal operates does not provide that kind of remedy. I say all of this without expressing a view one way or the other as to whether the joint letter would have been crucial evidence absent a good deal of further investigation as to how it came to be written and why Mr. Cotterill had made the statements he did earlier in the year.
22. In the course of these very protracted proceedings for judicial review, the claimants have expressed themselves over a wide range of matters and a wide number of decisions that are not of assistance for me in deciding this application. I must focus, as I have said to them a number of times in the course of the hearing, exclusively on the costs decision of 10th April 2007, since that is the only decision for which they have permission to apply for judicial review.
23. In view of the fact that they have been acting in person I have myself gone through the material which they have supplied in writing to see whether there is within it any argument that might possibly be raised -- I emphasize the word possibly -- or could even arguably amount to an error of law on behalf of Judge Gilbart. In the papers there is complaint that Judge Gilbart, in his earlier incarnation as a barrister, had been instructed on a number of cases by Phillip Maude who is one of the solicitors with the firm of Hammonds, and indeed might have been instructed by the firm of Hammonds itself. The claimants would wish to allege that this gave rise to the appearance of bias on behalf of Judge Gilbart. If such a complaint had validity it would amount to an error of law and would, at least in theory, be a basis on which the decision of 10th April 2007 should be set aside. For that reason and because they have acted in person I have been willing to examine that complaint, even though it was not, as it should have been, contained in either the claim form or any proposed amendments to it.
24. The test of apparent bias is whether the ascertained circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the decision-maker was biased: See, for instance, the decision of the House of Lords in McGill v Porter [2002] AC 357, paragraph 103. That is the general test which I must apply and which these courts on a number of occasions have said accord both with the common law approach and also the requirements of Article 6 of the European Convention on Human Rights. The two in this context, as in a number of others, march hand in hand.
25. In connection with the specific complaint of the claimants, I have drawn their attention to what was said by the Court of Appeal in the case of Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at paragraph 25. The court said this:

"It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. ... Nor at any rate ordinarily could an objection be soundly based on the judge's ... previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him or membership of the same Inn, circuit, local law society or chambers."

26. I drew that to the attention of the claimants because it seemed to me directly relevant to the basis on which they say that there was an appearance of bias on the part of Judge Gilbart. It is a very common experience for judges, who are frequently drawn from the profession of barristers, to be faced in their judicial capacity with parties who are represented by advocates or solicitors with whom they have had professional dealings in their former careers. That is very common. As the Locabail case emphasizes, it would only be in extraordinary circumstances for such a connection to give rise to apparent bias.
27. Three points are made by the claimants in response. First, they submit that this case was out of the ordinary. Second, they consider that there was an obligation on Judge Gilbart to disclose the previous professional connection he had had with Hammonds and, thirdly, although I am not sure how forcefully this was put, it seemed to be suggested that it was necessary for them to give their consent in order for Judge Gilbart in those circumstances to continue to act. I reject those submissions. On the material that I have seen it was not a situation which was so out of the ordinary as to lead to a departure from the decision described by the Court of Appeal in Locabail. Second, because the previous association of the kind which concerned the claimants will not ordinarily lead to a ground for recusal, in my judgment there was no obligation on Judge Gilbart to disclose it. Thirdly, this was not therefore a case where any question of the consent of the claimants to Judge Gilbart continuing to sit was necessary. Judge Gilbart was the member of the Lands Tribunal who held the hearing on 10th April 2007 and the claimants cannot claim a right to choose their judge or tribunal members.
28. A separate point was made by the claimants, that Judge Gilbart should have recused himself because of the terms of his opening remarks when the matter came before the tribunal in January 2007. I have seen a copy of those remarks. In forthright terms Judge Gilbart warned the claimants that they would need to keep their submissions and evidence to the relevant issues in the case and to be temperate in their language. I have seen the letters and submissions that the claimants have written after that warning. A judge does from time to time need to issue such a warning to litigants. It is not a reason for concluding that the judge is biased against the litigant. It was certainly not a reason which should have led Judge Gilbart to consider himself disqualified from sitting any further in proceedings in the Lands Tribunal in which the claimants were engaged.
29. A further matter argued in oral submissions today was that the decision on 10th April was reached after an unfair hearing. It is submitted that the claimants did not have a proper opportunity to respond to the criticisms that were made against them. It is said that Judge Gilbart should not have acted on the information that derived from Mr. Green and Mr. Coterill when those two gentlemen were not present to give oral first hand evidence. I reject these criticisms as well. Hammonds had sent to the claimants on 29th March a copy of their letter to the tribunal. This enclosed a copy of Mr. Jowitt's memo to Mr. Green. The other letters to which reference was made by Judge Gilbart in his decision were also, it seems to me, available to the claimants before the hearing took place. They had the opportunity to put in their own evidence challenging, if they saw fit, the accuracy of what had been said in those documents. Mr Riseborough did indeed put forward a witness statement for use at that hearing in which he made various comments. They were for the most part comments that raised additional matters rather than taking issue with the accuracy of what was in the correspondence put forward by National Grid. In my judgment the claimants had a fair and proper opportunity to put forward whatever they wished to the tribunal on that occasion.
30. It is by no means unusual for a court or tribunal, when faced with a decision of the type which the tribunal had to consider on 10th April, to do so on the basis of written material. It must be remembered that the tribunal had assembled on that occasion to consider the application for an extension of time by National Grid essentially to instruct further expert witnesses. It is not uncommon and not unfair for a tribunal to reach a decision on that and on consequential matters as to costs on the basis of written material, supplemented of course by the oral submissions that the claimants had had the opportunity to make. Consequently I reject the argument that the tribunal decision of 10th April should be quashed because of unfairness.
31. In the course of his submissions this afternoon Mr. Riseborough referred to the amount of costs which have subsequently been assessed, saying that they were extremely high and disproportionately high. The nature of the present proceedings cannot address that matter. I am concerned with whether or not Judge Gilbart's decision that they should bear the costs in principle, and that the assessment should be on an indemnity basis, should be quashed. The quantification of the costs, if that order does stand, would be a matter either for agreement between the parties or, failing agreement, assessment by the court. The size of the costs is not a matter that I can review on the present application for judicial review.
32. Part of the complaint, as I have indicated, that the claimants have more generally is that no action was taken on the joint letter. The claimants do not have permission to challenge by way of judicial review the decision of Judge Gilbart on 13th September 2007, in which he said that he had no power to rescind his earlier decision. In the course of their submissions this afternoon Mr. Riseborough referred to Rule 38 of the Lands Tribunal Rules. That makes provision for interlocutory applications. Even if the claimants did have permission to apply for judicial review of the decision of 13th September, in my judgment, such an application would fail. Rule 38 is dealing with interlocutory applications. It does not give the tribunal power to rescind an earlier decision as to costs which it had previously made. In my judgment, therefore, Judge Gilbart was correct to say that he did not have power in law to rescind his previous decision. I say that only by the way because, as I have repeatedly emphasised, the claimants do not have permission to challenge that decision by him.
33. Prior to the hearing today a witness statement was put in by Dr. Riseborough claiming that, George Bartlett QC, who is the President of the Lands Tribunal, had been instructed while a barrister in or about 1998 by Hammonds & Suddards, solicitors. Hammond & Suddards would appear to be the predecessor firm of the firm Hammonds which acted for the National Grid in the present proceedings. This information in the witness statement takes the matter no further for two reasons. The first is that the only decision which the Riseboroughs have permission to challenge by way of judicial review is that of 10th April 2007. That was a decision of Judge Gilbart, not of Mr. Bartlett. Therefore, even if the point were a good one, in terms of whether Mr. Bartlett was precluded from taking any part in the proceedings, it would avail the claimants nothing. It was not Mr. Bartlett who took the decision of 10th April.
34. The second reason why I say this does not assist the claimants is because the nature of the complaint is similar to their complaint about Judge Gilbart, namely that both members of the Lands Tribunal had been involved in professional relationships with solicitors in the course of their profession as barristers.
35. I have given my reasons as to why that argument does not establish apparent bias on the part of Judge Gilbart. The same answer applies in my judgment to why it would not indicate apparent bias on the part of Mr. Bartlett. For all of these reasons this application for judicial review is dismissed.