England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE BEATSON: I am grateful to everyone for the corrections that have been sent. There has been an extraordinary number of typos which I did not see. I picked up other matters as well. In a number of paragraphs there are non fundamental but not purely grammatical corrections: for the assistance of counsel, paragraph 16 (reference to a referendum), paragraph 22, paragraph 82, paragraphs 84 and 85 where there has been movement of text from one paragraph to another paragraph.

2. For the reasons given in the judgment, copies of which I hope are available to everyone in court, the challenge to the decision of the Welsh Ministers is dismissed. In respect of challenges to the decisions of the council which were heard on a rolled up basis, ie for permission, permission is granted in respect of what I call pre determination and timing grounds but not in respect of the bias or breach of the model code of conduct grounds. Although permission is granted on the pre determination and timing ground, the claim on this ground is dismissed.

3. I have a number of number of applications. I had some as to costs yesterday. There is a fat bundle here about protective costs.

4. MISS CLEMENT: That is a joint bundle from the parties.

5. MR JUSTICE BEATSON: I am starting a trial at half past ten and I am going to start it.

6. MISS CLEMENT: My application for costs is very simple. It may be that perhaps you need to hear from Mr Kerr first.

7. MR JUSTICE BEATSON: I think I do. I think I need to say something else to Mr Kerr. You have applied for permission to appeal in relation to bias and model code of conduct. I am not sure, I do not have power to do that. I have refused you permission and you can have a rolled up hearing for permission. Permission has been refused. It has to be the Court of Appeal

8. MR KERR: It is a slip on my part, I apologise.

9. MR JUSTICE BEATSON: It is understandable because we have treated all the points in the same way.

10. MR KERR: The point is taken. May I briefly say what I want to say over and above what is in the written skeleton argument which I hope you have?

11. MR JUSTICE BEATSON: All of them have been very helpful.

12. MR KERR: Your Lordship has in the first paragraph the order that we seek and in the second paragraph the I hope uncontroversial propositions of law on which we rely, five of them. I do not go over that ground. Time is short.

13. In response to the Welsh Ministers' claim for costs, I cannot add much to what is in paragraphs 3 to 8 of the skeleton argument, save to say my friend Miss Clement in her skeleton argument says that we had no private interest in defending the school's sixth form sorry, that we had exclusively a private interest.

14. MR JUSTICE BEATSON: You might have been on better ground with your protective costs order.

15. MR KERR: We cannot understand how it can be said that our interest is exclusively private. It is not the governors' school. They do not own the school. They do not run it for profit. They govern it as volunteers without remuneration, save possibly for expenses and the like, honoraria, certainly not for profit. The suggestion that State schools might be run for profit, as happens elsewhere in the world, was recently rejected by the current government in considering its thinking on free schools and academies. I accept that the interest is the school's interest but not that that interest is private.

16. If you look at Shelter (the white ring binder at tab 4. a very short report) Shelter was not ordered to pay costs. Mr Justice Carnwath (as he then was) refused the Secretary of State costs. In the summary, on the second page, and the second and last page of the Crown Office Digest report, you will see four factors in the middle of the page as to why it was appropriate to refuse costs; (1) Already pending before the court a sequence of individual cases raising the same issue. Here, we have had the Bishop Hedley case, so there has been one other which is riding on the back of this one. (2) The legal question raised was one of genuine public concern. I think that is common ground. (3) The applicant's involvement had assisted the court in determining the issue speedily. That is a different case, but effectively they got a quicker decision than otherwise would have been the case. That is not dissimilar to the position here. (4) Had the matter been determined in separate proceedings, it was likely that the applicant would have been legally aided and therefore burden on public funds. Here, it could have been a parent publicly funded who had made exactly the same challenge and would have had locus to do so.

17. The only other point I make is that reading Miss Clement's skeleton argument one gets the impression that it is an all or nothing; the public/private interest dichotomy is an all or nothing question. Not so. There is no bright line, as Mr Justice Munby put it in Smeaton at paragraph 17. I take you to that in tab 1 of the authorities bundle.

18. MR JUSTICE BEATSON: That is the one that came yesterday as well. I have looked at it.

19. MR KERR: My paragraph numbering went awry due to a computer glitch in my skeleton argument. You have to add 1 to the paragraph numbers in the skeleton argument. I do not know why. The real paragraph 17, as I hope it is in your copy, should begin "I respectfully agree with everything said by Mr Justice Dyson."

20. MR JUSTICE BEATSON: I have a sort of old fashioned print out with your skeleton argument. You said the paragraph numbers are all wrong.

21. MR KERR: They are 1 out, I think, so it might be 16 rather than 17. If it begins with "I respectfully agree with everything said by Mr Justice Dyson" that is the right paragraph. That is after extensive citation from Mr Justice Dyson's judgment in Child Poverty Action. What Mr Justice Munby said is:

"But I do not read him as indicating that there is some bright line distinction between those judicial review cases which do and those which do not involve a public interest challenge, let alone as saying that the determining factor in the award of costs is the presence or absence of some 'private interest'. A more flexible and nuanced approach is, surely, indicated by the statutory duty to have regard to all the circumstances ..... "

22. MR JUSTICE BEATSON: You would say the nuanced way to deal with it is to make no order for costs against you. That might be equally unnuanced.

23. MR KERR: I said no order or alternatively a heavily discounted order. The governing body will have to bear its own costs out of the budget. I rely on the matters in the written skeleton.

24. MR JUSTICE BEATSON: I was not sure that the suggestion that the UK tax payers as opposed to the Welsh tax payers are the right ones to bear the cost of all of this.

25. MR KERR: I wondered about tax raising powers and so forth and I thought I had better not go there.

26. MR JUSTICE BEATSON: I do not think we want to go there, but your paragraph 8 has an exclamation mark in my note.

27. MR KERR: That is a typographical error.

28. MR JUSTICE BEATSON: No. It is my exclamation mark.

29. MR KERR: I turn to the application by Mr Williams for Blaenau Gwent. Again I have little to add to what is in the written skeleton argument. He is an interested party down to 22 October when he becomes a potential defendant. The first point is that this is not a Smeaton type case where an intervenor would be tainted with criminality if the case were to succeed, as in a case where a claimant seeks a declaration that certain conduct would be criminal. It is a very long way from that. My friend says he is entitled to costs as interested party filing the acknowledgement of service. Those should have been nil or negligible because he only had to adopt the submissions of the Welsh Ministers who did not require external solicitors, let alone counsel, let alone leading counsel. What we have in the summary grounds of resistance and detailed grounds of resistance A57 and A65 respectively are lengthy and sophisticated documents, both signed by leading counsel and my friend instructed by external solicitors. That was grossly disproportionate. That is the first point.

30. The second point is that my friend says in paragraph 6 of his skeleton argument that the importance of the outcome justifies two sets of costs, and he relies on the Bolton practice note. We say that is completely different. We rely on the same practice note at tab 6, Lord Lloyd's second proposition (page 1178 H). The context was different. It was about a planning appeal. Lord Lloyd sets out some general propositions, starting at F. The preamble is the one mentioned in the skeleton argument. The second one is:

"The developer will not normally be entitled to his costs unless he can show that there is likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by the council or Secretary of State or unless he has an interest which requires separate representation."

31. Then my friend says that Mr Alan Davis had to make a witness statement and that the costs of that should be recoverable. Not so. All that was needed was a phone call to the Welsh Ministers to offer Mr Davis' services to provide a witness statement if the Welsh Ministers wanted one. But they would not have needed one because the issue was one of pure construction, one on which his evidence was neither here nor there.

32. In respect of the conduct of the leader and its adoption and support by the council, my friend takes the technical point which is sophistry of the smoke and mirrors kind.

33. MR JUSTICE BEATSON: What are you looking at?

34. MR KERR: He says in his skeleton argument at paragraph 9 (ii) that there was no finding of unlawfulness in respect of the leader's conduct. That is an extremely over technical approach. I rely on paragraphs 90 and 91 of the draft judgment or whatever the equivalent final paragraphs

35. MR JUSTICE BEATSON: I think they are the same. You rely on 90 and 91. Well 91 and 92 are the ones where I say about delay.

36. MR KERR: I am grateful. In my written skeleton argument I relied on the point that a substantial portion of Mr Williams' submissions in oral and written argument were devoted to his failed defence of the propriety of the leader's conduct. That is not disputed in my friend's skeleton argument although he got mine first. It will be remembered from the oral hearing that I also made a separate point that his first skeleton argument was exclusively devoted to the delegation issue and travelled much the same ground as Mr Lewis'.

37. Lastly, the suggestion that his solicitors this is paragraph 9 (vi) of his skeleton argument his in house solicitors were not sufficiently expert to cope with judicial review, in response to that we say they are being far too modest about their skills and expertise and should have more confidence in them.

38. I make seven points in support of that. First, as already submitted, until the proposed amendment in October their only task was to adopt the Welsh Ministers' submissions. I would have thought they could have managed that. That is the first point.

39. The second point is it really is not our problem. It is an internal management issue if they truly lacked the expertise, as they say they did. We looked at their website, and it refers to providing litigation as a service. I have copies if your Lordship needs to see them. It refers to providing a service that is comprehensive and includes litigation. There are 24 staff, according to the website. I am not sure they are all necessarily lawyers. There may be para legals and others. That is the second point. It is really not the governing body's problem if, as a matter of internal management, solicitors lack the expertise they need. This is, par excellence, local authority litigation.

40. The next point is that whatever they lacked in expertise, they could have supplemented by help from counsel if needed. I do not say that that should have been leading counsel. I do not say that that would have been recoverable but it would have been a much more targeted approach than just instructing a firm of solicitors with a generic retainer to conduct the litigation.

41. The next point is that Methyr Tydfil v Bishop Hedley used in house solicitors and if they can manage why not Blaenau Gwent.

42. The penultimate point is that Blaenau (?) said they want the fourth degree of representation, as I call it: (1) in house solicitors; (2) external solicitors; (3) counsel; and (4) leading counsel.

43. MR JUSTICE BEATSON: They did not have both counsel and leading counsel. They had leading counsel.

44. MR KERR: No. The degree of counsel at leading level where they had to defend on two aspects only and not on the delegation point at all.

45. Lastly, the cost of defending the leader's conduct and the consultation exercise at the hearing although very helpfully carried out by my friend could have been carried out by junior counsel. It was the delegation point which merited the involvement of leaders and not the two other aspects. In the Northumberland case on which I relied, it was won by junior counsel.

46. MR JUSTICE BEATSON: It is not for me to say it, but there are many cases which would be adequately litigated by junior counsel but we have our system.

47. MR KERR: We do. It is also incumbent on a party who wants to take a point before a costs judge to flag it up.

48. MR JUSTICE BEATSON: Yes.

49. MR KERR: The point that I flag up is

50. MR JUSTICE BEATSON: I am not a costs judge.

51. MR KERR: You are not a costs judge. But the White Book makes clear that it is open to parties to seek an indication from the court, and I do, that Mr Williams was, with great respect, too big a gun for this case.

52. MR JUSTICE BEATSON: You did not have Mr Wolfe mounting the bias challenge. Mr Wolfe dropped out at an early stage.

53. MR KERR: At a very early stage.

54. MR JUSTICE BEATSON: Miss Clement?

55. MISS CLEMENT: You have had my submissions in my written submissions about the effect of the protective costs order. In short, I say that having applied for a protective costs order in advance of the hearing, having been refused that protective costs order on the papers, having been refused permission to appeal against that refusal by Lord Justice Sullivan a few days before the hearing before you, then it is inappropriate at this stage to afford the very same costs protection.

56. MR JUSTICE BEATSON: Yours is really a res judicata point, sort of analogous. This issue has been decided.

57. MISS CLEMENT: Yes, because essentially the case law on no order for costs and public interest litigation all pre dates 2005 and the Corner House judgment, which led to the inevitable growth of protective costs orders. So essentially I say that the way that costs protection is now governed in the Administrative Court is through a pre emptive application for a protective costs order. That having failed for the reasons given by the judge that there was a significant private interest in this case it would be inappropriate in the exercise of your Lordship's discretion to make no order for costs, that PCO having been refused.

58. At the back of the PCO bundle

59. MR JUSTICE BEATSON: I do not think that I ever saw a PCO bundle.

60. MISS CLEMENT: There was one at the front, I believe, of the bundle Mr Kerr handed up to you this morning.

61. MR KERR: It is a separate clip.

62. MR JUSTICE BEATSON: We are not going to do this by half past ten, are we?

63. MISS CLEMENT: I am going to be very quick on this point. Essentially, I set out the reasons given

64. MR JUSTICE BEATSON: What do you want me to take? I am behind tab 6, which is the back of the bundle which is labelled PCO bundle. There is then something on the front of it.

65. MISS CLEMENT: Yes. It is the slip at the front.

66. MR JUSTICE BEATSON: The slip at the front you want me to look at.

67. MISS CLEMENT: I want to take you to the judgment or the reasons given for the orders made by His Honour Judge Bidder QC and by Lord Justice Sullivan which are right at the back of that bundle, at pages 32 and 33.

68. MR JUSTICE BEATSON: I have seen Judge Bidder's reasons. I have not seen Lord Justice Sullivan's but I think I saw them somewhere else.

69. MISS CLEMENT: Essentially, the point I make is that two judges in this case have already said that a PCO was inappropriate because there was a significant private interest that was being pursued by the governors in this case. And it is precisely that private interest that makes it inappropriate for Mr Kerr to seek no order for costs on the basis that this was private interest litigation. It is that very short point.

70. For the avoidance of doubt, I also seek the Welsh Ministers' costs of opposing the protective costs order which would ordinarily follow the event. The authority for that proposition is the Corner House judgment at paragraph 78.

71. The only other point I make on costs is that even if one ignores the PCO application, this simply is not the kind of public interest case where the orders sought by Mr Kerr have been granted historically because in those cases the recipients of such orders have been either charities or NGOs, such as Shelter, Green Peace, etc.

72. MR KERR: We are a charity, my Lord. We are a charity by statute.

73. MISS CLEMENT: They were instances where those charities had no private interest in the outcome of the litigation. They were seeking to clarify

74. MR JUSTICE BEATSON: I am going to deprecate Mr Kerr, even from the front row, standing up and interrupting.

75. MR KERR: I apologise.

76. MR JUSTICE BEATSON: He may forfeit his right to reply as a result of taking the right to reply before Miss Clement finished in the nicest possible way. But you are changing your ground. You said PCO. You said private. Then you say they are not a charity. Mr Kerr says they are a charity. You say, yes, but they are private. We are back to the point you made before.

77. MISS CLEMENT: My second point is they are not akin to the cases where the public interest orders have been made previously. In those cases they were brought by charities to clarify the law. Those charities did not have that

78. MR JUSTICE BEATSON: Does this charity seek to clarify the law on Section 83?

79. MISS CLEMENT: They also had that interest in the outcome, a private interest.

80. MR JUSTICE BEATSON: I understand that. So we are back to your first point.

81. MISS CLEMENT: Yes.

82. MR JUSTICE BEATSON: So all these other points do not add much to the first point.

83. MISS CLEMENT: I am happy to sit down at this point.

84. MR WILLIAMS: I am not going to finish by half past ten.

85. MR JUSTICE BEATSON: No. We are going to finish. I am very disappointed that all this stuff about protective costs has come this morning with very little foreshadowing, no indication that half an hour was not going to be enough. I have interrupted less than I normally do.

86. MR WILLIAMS: I shall be as brief as I can.

87. MR JUSTICE BEATSON: You have four minutes.

88. MR WILLIAMS: Your Lordship has my skeleton argument. I apologise that it was filed late yesterday.

89. MR JUSTICE BEATSON: I understand why it was late. You now have less than four minutes. Do not use your time by apologising.

90. MR WILLIAMS: It is wrong, in my submission, falsely to differentiate between the two claims after the second defendant was joined as a defendant proper. The only costs which are separable and relate only to the delegation claim after 22 October are the costs of drafting the first skeleton argument, drafted in reply to the direction of the court. The second defendant is entitled to the costs of its acknowledgement of service and summary grounds. It is suggested that we should have just adopted what the first defendant did. That was not possible. We did not know what they were going to say. There was a time limit to be complied with.

91. In respect of the detailed grounds and the witness statement of Alan Davis, they do raise separate issues, namely the date of the signing of the instrument of delegation which clearly was very important given what was going to be argued on timing and the correct interpretation of the letter from the first defendant. That had not been mentioned in the first defendant's summary grounds and, indeed, was not properly covered even afterwards. Mr Davis had produced a copy of the signed previously we had only had unsigned copies. It is difficult to overstate the importance that we have covered the delegation issue to the second defendant.

92. Paragraph 6 of my skeleton argument shows the case of Bolton. In the case my friend refers to at tab 1 of the authorities bundle, at paragraph 38 and following of the judgment of Mr Justice Munby, having set out the passages in Bolton Metropolitan District Council, Mr Anderson (at paragraph 38 in particular) points to four matters as justifying an order for costs which he seeks. In the first place, interested party directly affected; that clearly applies here.

93. Secondly, he submits should have separate representation. In relation to the amended claim, obviously that is true. We had to be there. The first day was taken up with the claimant's opening. We responded on the second day with an amended claim. The evidence of Mr Davis was important to the court. That is the third point. The submissions were not duplicative. It is true that there may have been some common ground in the skeleton arguments. I was very careful in oral submissions to limit myself. I hardly dealt with the delegation issue at all and, consequently, limited myself to matters which had not been covered entirely by my friend Mr Lewis. In relation to the period from 22 October, the original claim, the delegation issue, the only additional costs were the costs of the skeleton argument. In relation to the amended claim, I reiterate that there was a presumption that the defendant certainly should get its costs. That is effectively accepted, I think, that there should be an order by the claimant in it protective costs application. It conceded that.

94. In respect of the points I make in paragraph 9, I shall not reiterate those. At 9 (vi), the great preponderance of submissions made on behalf were dealt with in the amended claim.

95. MR JUSTICE BEATSON: You have made that point.

96. MR WILLIAMS: In relation to the amended claim, the pr determination issue took up just as much time as the bias issue. You will remember that I had to take you to the trial (?) report, all the annexes that that included and how that had been dealt with in the various reports to the council and decisions that it made.

97. In respect of the use of external solicitors, these are my instructions. The second defendant has only one litigator dealing mainly with the Magistrates' Court, three child care lawyers and one and a half people dealing with conveyancing and the chief legal officer Mr Dylan John (?) there is a witness statement from him. His range of responsibilities deal with all sorts of things, including being returning officer for the local authority. It is the second smallest local authority in Wales. My instructions are that in 30 years of Mr John's experience on the council they have only had one JR to deal with. They do not have the experience to do these in house.

98. In relation to the protective costs order, the only costs incurred were the drafting of submissions, written submissions, which were dealt with by the judge. That was in answer again to written directions on the court. In relation to costs, those are my submissions.

99. MR JUSTICE BEATSON: Mr Kerr, reply and make your other application.

100. MR KERR: No res judicata in relation to the protective costs order. That was a pre emptive order which was sought. Your Lordship has now heard the whole case and can revisit the matter as a matter of discretion. That is what CPR 44 says.

101. The second point: no costs application was made to Judge Bidder so far as I am aware. We had given him impecuniosity as one of the main bases of the application. His order did not remit the matter. It was dealt with on papers for reasons of economy. The implication is that he was content to let costs lie where the fall in respect of that failed application.

102. My friend's Welsh Ministers submissions to Judge Bidder were drafted by leading counsel. that should be disallowed in any event. Mine were drafted not by me but by my instructing solicitor. Mr Lewis drafted the ones for the Welsh Ministers to oppose the PCO. Those should be disallowed.

103. The application for permission to appeal on the written grounds in the skeleton argument which, I hope, do not require amplification subject to the point you made in relation to the refusal.

104. MR JUSTICE BEATSON: I have no jurisdiction to do it.

105. MR KERR: Indeed. That is all.

106. MR JUSTICE BEATSON: I will deal with this briefly, having had the benefit of full skeleton arguments and submissions. I will first deal with Mr Kerr QC's application for permission to appeal against the decision on all grounds. As permission to apply for judicial review was refused in respect of bias and breach of model code of conduct grounds, there is no jurisdiction for me to grant permission to appeal. In relation to the other grounds, I am going to refuse permission.

107. On the delegation point although it is a point of some importance, it is a point of construction and I do not believe the first limb of CPR 52.3 (6) is satisfied. While the implications of the decision may have wider resonance I think it is for the Court of Appeal to decide whether it wants to hear an appeal on that basis. I do not consider that the first limb of either limb is satisfied in respect of the premeditation and timing grounds.

108. As far as costs are concerned, Mr Kerr submits there should be either no costs order or a heavily discounted costs order in favour of the Welsh Ministers because the governors, as a charity, who were seeking to clarify the law in respect of Section 83 of the Government of Wales Act 2006, are public servants. He submits that the refusal of a protective costs order in advance by His Honour Judge Bidder QC and permission to appeal that order refused by Lord Justice Sullivan does not preclude the court making a decision in line with the pre protective costs order jurisdiction exemplified, for example, in the Smeaton case in 2002 and the Shelter case in 1997.

109. I have concluded that the Welsh Ministers are entitled to costs. While Mr Kerr is right to point to Mr Justice Munby's judgment in the Smeaton case that there is no bright line between a judicial review brought in the public interest and one brought in a private interest the factors that weighed with Judge Bidder and Lord Justice Sullivan are not displaced by my assessment of the position in the light of the two day hearing.

110. Accordingly I order the claimant to bear the first defendant's costs, to be subject to a detailed assessment if not agreed. In that context, I observe that, while the Welsh Ministers are entitled to some costs for resisting the application for a protective costs order, I do not consider that it was necessary for their resistance to be settled by leading counsel. I know not whether Miss Clement was involved in this matter at that stage but her performance on costs today shows that junior counsel would have been very adequate.

111. As far as the second defendant the council is concerned, I have concluded that while Mr Williams QC is right to point to the importance of the delegation point for the second defendant and the fact that the issue of the date of the delegation was a matter which the second defendant's witness brought to the attention of the court, for the reasons set out in Mr Kerr's written submissions, the second defendant should only have its costs in relation to the additional grounds, ie, from 22 October. In relation to those, it will be for the costs judge to consider the extent to which, if the parties do not agree costs, it was reasonable to have the level of representation that they had on that date. It has been submitted that they had no experience of judicial review, that the council is the second smallest local authority in Wales and accordingly some of the seven points which Mr Kerr made against the use of external solicitors and counsel do not apply. That is a matter for detailed examination by a costs judge.

112. MR WILLIAMS: Would your Lordship consider an application for payment on account of the costs incurred after 22 October?

113. MR KERR: That is news to me.

114. MR JUSTICE BEATSON: We are at almost 10 to 11. I think your application shows your zeal as an advocate. I am fifteen minutes into my next case, and I have the wrong counsel in court. If an application can be made for payment on account and the claimant can consider it, it can be brought back. But I suggest if it is brought back it should be referred with submissions to me, reserved to me, and dealt with on paper so all you busy people do not have to gather here.

115. MR WILLIAMS: I am grateful.

116. MR KERR: I am grateful.