Case CO/1106/2009 
Neutral Citation Number: [2010] EWHC 2481 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 18 February 2010
 
B e f o r e: 

MR JUSTICE OUSELEY 
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Between: 
THE QUEEN ON THE APPLICATION OF USK VALLEY CONSERVATION GROUP 
Claimant 
v 

BRECON BEACONS NATIONAL PARK AUTHORITY 
Defendant 
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Mr Ross Fenton appeared on behalf of the Claimant
Miss Mary Ellis QC and Mr Robin Creen appeared on behalf of the Defendant
Mr Ian Albutt appeared on behalf of the Interested Parties
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J U D G M E N T

1.	MR JUSTICE OUSELEY:  On 27 January I handed down judgment in this matter.  Today I have heard argument in relation to costs which has not been an entirely easy issue to resolve.  What was at issue was a planning permission granted by the defendant which the interested parties were exploiting, the lawfulness of which the claimants challenged.  There was also a challenge to decisions made by the defendant National Park Authority (NPA) as to how to deal with the consequences of breaches of planning control and concerns about the validity of the permission.  
2.	The problems arise because although the claimants were successful in obtaining the quashing of the planning permission, the NPA, as from no later than the service of the acknowledgement of service, effectively conceded that the permission should be quashed and the necessary extension of time granted and thereafter generally succeeded on the points it took by way of defence to the other claims raised.  The interested parties, who contested the validity of the permission and the granting of relief after so long a time, lost on those issues, were not concerned in the 2008 issues, but succeeded in an issue which took up a great deal of time and costs, namely whether they had been fraudulent in the planning application that was made and indeed whether the planning application was invalid at all, which was an issue to which a lot of the documentation and evidence was directed.  So the claimant succeeded but succeeded having spent a good deal of time on points on which they lost that were discrete and unnecessary for the purposes of proceedings and did not of themselves have any general public law points of importance save in relation to Alnwick.  
3.	The claimant seeks the payment of its costs from the National Park Authority and ‑ to the extent that it does not get them from the National Park Authority ‑ seeks that the interested party should pay them, suggesting that it is the National Park Authority which is principally liable because it was the National Park Authority's mistakes in handling the planning application which had been the genesis of the proceedings which had to be brought in order to get the permission quashed.  They also regarded themselves as successful in relation to the 2008 decision because they had succeeded in one of their arguments which had led to a declaration that the decision of November was unlawful.  
4.	Miss Ellis QC, for the NPA, submits that save for the costs up to the service of the acknowledgement of service it is the NPA which should receive its costs from the claimant because it won on all the arguments on which it contested the proceedings.  Mr Albutt, for the interested parties, submits that the appropriate approach is that there should be no order for costs as between the interested parties and the claimant or, alternatively, if there were to be some blame ‑ which the claimants attribute as to twenty‑five per cent to the interested parties ‑ they should pay only half of those costs.  
5.	Each of these arguments, as well as making no order as to costs, have something to be said for them save the claimants' argument that it should get essentially all its costs which would be an injustice.  
6.	I have concluded that the right approach to these costs is, first of all, to split ‑ and in my judgment they split quite readily ‑ the costs associated with the quashing of the 2005 permission from the costs associated with the declaration in relation to the November 2008 decision.  The claimant shall be paid by the National Park Authority its costs to the period of one month after the acknowledgement of service.  I say that to give the claimants some time in which to consider their position and decide how to respond after receiving that acknowledgement of service.  Thereafter it would be unjust for the National Park Authority to have to pay any of the 2005 issue costs to the claimant.  I do not accept the simple argument that because the problem is largely the NPA's in its inception that that should continue through the process of litigation which it conducted entirely properly and in a manner designed not to do other than provide assistance to the process of quashing the permission provided that it did not lose on issues of importance to it on which in fact it won.  
7.	The next question is whether the NPA should receive its costs from the claimant in relation to the costs thereafter of dealing with the 2005 matter.  I have concluded, with some hesitation and reluctance, that it would be unjust to require the claimants to pay the National Park Authority's costs in relation to that although I need to return to that point when I come to the 2008 case.  My reasons are that the NPA really had to attend the hearing as a responsible authority and had to incur some costs ‑ behaving as a responsible authority ‑ in providing some information to the claimants which it did in the form of witness statements and other disclosure.  I found the claimants' approach to this unappealing, at least in so far as they sought to lay at the National Park Authority's door the costs, essentially, of pursuing the validity of the application point on which it signally failed.  
8.	But it would not be right for the claimants ‑ who have won what to them is the crucial point in the battle, namely the quashing of the permission ‑ in effect to be significantly out of pocket because of the points they took.  There was a public interest element in these proceedings because of the nature and location of the permission and, more importantly, because of the need to examine and deal with the deficiencies in the local authority's consideration expressly.  That also seems to me the best way to reflect the fact that the claimants chose to take a point which took up some time in relation to invalidity on which they lost.  
9.	So far as the interested parties are concerned, they are to pay, in relation to the costs of dealing with the 2005 issue, fifteen per cent of the remaining costs of the claimant plus the costs of one‑and‑a‑half days of the hearing.  I take that stance because a hearing would have been necessary and ‑ properly conducted, without the extraneous points upon which the interested parties won ‑ it could not have lasted more than a day‑and‑a‑half.  Those seem to me to be costs that can be dealt with discretely.  
10.	The other costs ‑ that is the preparatory costs and documentation costs ‑ in relation to the issues upon which the claimants succeeded, together with the prejudice issue, cannot in my judgment sensibly have taken more than fifteen per cent of the costs.  I have been astonished to see the figure of £1,000,000 to which the claimants assert their costs amounted, but, having been favoured with the disclosure of correspondence and some sense of the efforts which they went to in relation to the point on which they failed but took up so much time, I am concerned that the interested parties should not have to pay anything at all towards that.  I bear in mind that it was an issue on which they were successful.  
11.	If the claimants are under‑provided for in that costs order in relation to issues on which they succeeded, they can be thankful that they are not having to pay any of the costs of the interested parties.  It should be a lesson in identifying the issues that matter and which can be fought without unnecessary expense.  To make the allegations they did was simply to invite resistance and they should get no costs in respect of it.  
12.	I turn to the 2008 decision which is not one in which the interested parties are involved.  This is a straight issue between the claimants and the National Park in which the claimants succeeded on a narrow issue but lost their main submission, which was a submission of principle but it had a public interest component.  They lost on a provocative allegation of bias which was bound to be contested and they lost on a rationality issue and a lesser valuation issue.  Although the claimants can point to the granting of a declaration about the involvement of one valuation in part of the process of decision‑making, it was a victory on a very narrow point, the costs of dealing with which would be very small in relation to the costs of the issues upon which they lost.  It is my judgment that although the claimants can point to a victory, that does not really reflect the way in which the case was dealt with.  
13.	This would not be, in my judgment, an appropriate case for the claimants to receive their costs of these proceedings.  In my judgment, the appropriate order would be that the claimants should pay the National Park Authority eighty per cent of the National Park Authority's costs of these proceedings.  I make a discount for the lesser issue upon which they succeeded but, in reality, it was not an important issue to the way in which the crucial matters were considered by the authority.  Although I have no doubt that higher valuation worked its way very firmly into the psyche of the members, it is, in my judgment, very unlikely that the actual decisions that the discontinuance procedure should await the outcome of the enforcement proceedings would have been any different had that valuation not been there.  In making that order ‑ as I said I shall return to ‑ I am conscious of the fact that the National Park Authority had a strong claim to be paid its costs in relation to the 2005 action but I have decided that they should not receive them.
14.	There is some measure of swings and roundabouts in my consideration of the way in which the costs of the 2005 and 2008 issues should be dealt with.  So accordingly the claimants shall pay eighty per cent of the National Park  Authority's costs of the 2008 issue.
15.	MR FENTON:  My Lord, with some diffidence, I am instructed to seek permission to appeal what will be I think paragraphs 5 and 6 of the order in so far as fifteen per cent of the claimants' costs payable by the interested parties.  I seek permission to appeal that order in so far as, in my submission, it was not reasonably justified by reference to the issue on which the claimants won, bearing in mind your Lordship's discretion.  
16.	Paragraph 6 of the order will I think become the "claimants do pay eighty per cent of the National Park Authority's costs for 2008".  I seek permission to appeal that order on the basis that the public interest point ‑ the fact that the claimants were without any commercial interest whatsoever in this site in the light of the fact that this was an "environmental decision" (in inverted commas) ‑ ought to have litigated in favour, at worst, of a no order with respect to 2008.
17.	MR JUSTICE OUSELEY:  I am not going to grant you leave to appeal.  These are matters primarily for my discretion.  I do not think there has been an error of approach on the main issue. I have fully recognised your status in not making you pay the costs of all the issues on which you lost.  Mr Albutt did not ask you to pay his costs which he might have been able to.  It may be you will find that he will if you challenge that.  
18.	The public interest component of you challenging the decisions based on Alnwick is pretty minimal given the nature of the decision.  The reality is that somewhere along the line the claimants have to recognise that public interest litigation requires great selectivity about the points that are taken.
19.	I refuse permission.
20.	MR ALBUTT:  I want to clarify because your order in relation to the interested parties on the 2005 issues is effectively, I think, fifteen per cent, is it?
21.	MR JUSTICE OUSELEY:  I will tell you what it is.  Let me explain it again.  After the NPA's share of costs, there will be a total pie.  From that total pie, one‑and‑a‑half hearing days' costs have been taken.  You pay those.  From that pie eighty‑five per cent becomes one‑hundred per cent ‑ ‑ sorry, that diminished pie becomes the new hundred per cent.  You are to pay fifteen per cent of that new hundred per cent.
22.	MR FENTON:  That is with respect to 2005.
23.	MR JUSTICE OUSELEY:  2005.
24.	MR ALBUTT:  The 2005 issue.
25.	MR JUSTICE OUSELEY:  There is nothing else between claimant and interested party in 2008.
26.	MR ALBUTT:  Thank you very much.
27.	MR JUSTICE OUSELEY:  Miss Ellis, I think it will fall to Mr Creen to draw up the order.
28.	MISS ELLIS:  May I clarify or seek clarification of one point?  I am certain from what your Lordship said that where you dealt with the first part of the order ‑ the claimant should be paid its costs to one month after the acknowledgement of service ‑ and you then went on "thereafter it is unjust for the NPA to pay any of the 2005 costs to the claimant", so the costs to be paid up until acknowledgement of service simply relate to the 2005 element.
29.	MR JUSTICE OUSELEY:  Yes.
30.	MISS ELLIS:  Not the 2008.
31.	MR JUSTICE OUSELEY:  Yes.
32.	MISS ELLIS:  That is what I understood.  I just wished to clarify.  I do not wish to seek leave.
33.	MR JUSTICE OUSELEY:  Can I ask your junior to draw up the order?
34.	MISS ELLIS:  Of course.
35.	MR JUSTICE OUSELEY:  That covers the quashing, the declaration and the slightly more complicated costs provisions.  Could you, when you draft it, circulate it to Mr Albutt and Mr Fenton, including refusal of leave for Mr Albutt's application and on Mr Fenton's application?
36.	MR CREEN:  Yes.
37.	MR ALBUTT:  I say this as these thoughts go through my mind in relation to what you referred to as the 2005 issues, I understand you are bringing them all together.  You are not saying in any way that the issue of invalidity and the issue of fraud and dishonesty should be deducted.
38.	MR JUSTICE OUSELEY:  No.  I am bringing them all together.  That is why I have chosen the low percentage to reflect a broad assessment of what were the main drivers of the costs, bearing in mind that the others really were lesser by comparison, and possibly erring on the low side because you won on some of those issues.
39.	MR ALBUTT:  I am grateful.