England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/11/2013

Judgment on Costs

MR JUSTICE HADDON-CAVE:

1. On 22^nd August 2013, I handed down my Judgment and Order in favour of the Claimant, quashing the Defendant's grant of planning permission to the Interested Party dated 21^st September 2012 (MO/2011/1450).
2. The Claimant has been successful in these Judicial Review proceedings. In principle, therefore, the Claimant is entitled to its costs of the judicial review paid by the Defendant, subject to detailed assessment if not agreed. Costs are not resisted in principle by the Defendant.

COSTS OF SUBSTANTIVE JUDICIAL PROCEEDINGS

Defendant seeks reduction

3. The Defendant submits, however, that because the Claimant was not successful on all issues raised at the permission stage and at the full hearing, the Claimant should not recover its costs in full.
4. Mr Findlay QC, who appeared for the Defendant, submitted in summary as follows: (i) the Claimant was refused permission for judicial review on Ground 6 (Ecology) and this ground was not renewed; (ii) the Claimant's case on Ground 5 (Water) was rejected in the Court's Judgment of 22^nd August 2013; (iii) whilst it is not suggested that the Claimant acted unreasonably in raising these issues, nevertheless these were 'significant' and 'distinct' issues case which the Claimant had pursued 'unselectively' and lost; (iv) in the circumstances, this should be reflected in a proportionate reduction in the award of costs in accordance with CPR 44.2(6) and (7) and CPR 44.3.1.7 (White Book 2013, pages 1315-1316); and (v) a reasonable reduction in costs to reflect these matters would be in the region of a 25% reduction.
5. Mr Edwards QC, who appeared for the Claimant, submitted in summary that: (i) the Claimant won the Judicial Review proceedings; (ii) the Claimant had succeeded on multiple grounds, namely Ground 1 ('Green Belt'), Ground 2 ('need'), Ground 3 ('landscape'), and (in practice) Ground 4 ('Reasons'); and (iii) it would be unjust in all the circumstances not to grant the Claimant full recovery of its costs merely because it had not succeeded on all grounds.

Analysis

6. It is useful to have in mind at the outset Simon Brown LJ's maxim in Bugden v. Andrew Gardner Partnership [2002] EWCA Civ 1125 (at paragraph 35):

"[T]he court can properly have regard to the fact that in almost every case even the winner is likely to fail on some issues."

7. The authorities are redolent with similar sentiments (see Gloster J in HLB Kidson v. Lloyds Underwriters [2007] EWHC 2699 (Comm); Clarke J in Traveler's Casualty v. Sun Life [2006] EWHC 2885 (Comm)); Goodwin v. Bennetts UK Ltd [2008] EWHC Civ 1658; and Jackson LJ in Fox v. Foundation Piling [2011] EWHC Civ 790).
8. The following guidance in the White Book is also relevant: where an issue is reasonably pursued and is closely related to other issues which had to be raised upon which the successful party succeeded, it might well be considered unjust to make a distinct adjustment to the costs awarded (see CPR 44.3.1.7).
9. In my judgment, this is not a case in which it would be just or appropriate to make a discount from the normal order for costs on either a percentage or issues basis for four reasons. First, it is accepted that it was not unreasonable for the Claimant to raise the issues in question (Grounds 5 and 6). Second, it cannot be said that the Claimant pursued these grounds 'unselectively', i.e. thrashing around in the undergrowth of the law. Third, these grounds (Grounds 5 and 6) were closely related to other grounds upon which the Claimants succeeded (Grounds 1, 2, 3 and 4) and, in my view, it would be unjust to make a distinct adjustment to the costs awarded (c.f. CPR 44.3.1.7). Fourth, the Claimant not only won the case, but succeeded handsomely on the major grounds which formed the heart of its challenge to the Defendant's grant of planning permission to the Interested Party.
10. Accordingly, in my judgment, subject to the matter below, the Claimant is entitled to recover its full costs against the Defendant.

Costs of pre-action letter

11. Mr Findlay QC further argued on behalf of the Defendant that the Claimant should not, in any event, recover the costs of the Pre-action Protocol letter sent by Richard Buxton to the Defendant on 29^th October 2012 because the letter was written on behalf of the Campaign for the Protection of Rural England (Surrey Branch) ("CPRE") and not the Claimant and the recovery of costs by a non-party is impermissible unless that party is joined to the proceedings (CPR 46.2). Mr Findlay said that CPRE chose not to bring the proceedings itself but do so through the mechanism of Cherkley Campaign Limited and therefore has waived its entitlement to costs.
12. Mr Edwards QC, on behalf of the Claimant, submitted that Mr Findlay QC's objection was artificial and failed to recognize the realities of the situation namely (i) the very close connection between the CPRE and Cherkley Campaign Limited, which the CPRE helped found and fund, and (ii) the reasons why the claim was brought by Cherkley Campaign Limited was simply that time did not permit waiting for full CPRE Board approval (as explained by Ms Kristina Kenworthy in her evidence).
13. In my judgment, technical as Mr Findlay QC's point is, it is correct in law. First, the CPRE is not currently a party to these proceedings and cannot claim costs itself against the Defendant unless and until joined as a party to the action (CPR 46.2). Second, the 'indemnity' principle is relevant here: i.e. the paying party cannot be ordered to pay more than the receiving party has agreed to pay his solicitor. The Claimant, Cherkley Campaign Limited, was not in fact incorporated until 31^st October 2013, i.e. two days after the Pre-action Protocol letter. The Claimant cannot claim these costs against the Defendant since the Claimant is not liable in law for them to Richard Buxton. The Claimant did not agree to pay them. It did not exist at the time that the liability in law arose for these costs. Liability for the costs of the Pre-action Protocol letter of 29^th October 2012 in law lies with Richard Buxton's client at the relevant time who instructed the letter to be sent, namely the CPRE and not the Claimant, Cherkley Campaign Limited.
14. Accordingly, the costs of the Pre-action Protocol letter of 29^th October 2012 are not recoverable against the Defendant.

Decision

15. For the above reasons, I order that the Claimant is entitled to recover its costs of the substantive claim and hearing from the Defendant in full (save for the costs of the Pre-action Protocol letter of 29^th October 2012), such costs to be assessed if not agreed.

COSTS OF INTERIM INJUNCTION

Background

16. On 26^th March 2013, the Claimant obtained an ex parte interim injunction from Simon J restraining the Interested Party from carrying out work to construct the golf course in furtherance of planning permission. This injunction was subsequently varied inter alia by Holman J on 16^th April 2013 and by Collins J on 26^th April 2013 and variously by agreement.
17. The interim injunction proceedings in fact passed through the hands of no less than six High Court Judges during the period March to June 2013 before the matter came before me for the substantive hearing on 6^th June 2013. I set out below a brief chronology of the interim injunction proceedings.

Chronology

18. On 17^th December 2012, the Claim was issued. On 18^th March 2013, Richard Buxton wrote to Berwin Leighton Paisner requesting that the IP not proceed with the development, pending the outcome of the claim. On the 19^th March 2013, Berwin Leighton Paisner declined the request. On 20^th March 2013, Richard Buxton made applications on paper for (a) urgent consideration of the application for permission for Judicial Review; (b) a holding injunction; and (c) a Protective Costs Order in respect of interim applications. On 25^th March 2013, Nicola Davies J adjourned the applications (including for a holding injunction) until 24^th April 2013, on which date she ordered that the application for permission should be heard. On 26^th March 2013, Richard Buxton requested reconsideration by the Court of the application for a holding injunction. On 26^th March 2013, in the absence of a response from the Court, Richard Buxton made an out of hours application to Simon J for an injunction. The injunction was granted by Simon J with a return date of 10^th to 12^th April 2013.
19. On 28^th March 2013, the Interested Party made an application to set aside the order of Simon J. On 28^th March 2013, Eder J ordered that the application to set aside be listed on 3^rd April 2013 or as soon as convenient thereafter. The application was then listed by the Court for 16^th April 2013. On 3^rd April 2013, the Interested Party made an application to expedite the set aside application. Males J refused the application to expedite and confirmed the listing of the hearing for 16^th April 2013. On 3^rd April 2013, the Claimant and Interested Party agreed a consent order to vary Simon J's order so as to allow the Interested Party to carry out limited works. On 16^th April 2013, the Interested Party's application to set aside Simon J's order came before Holman J. Due to shortage of time, Holman J required the parties to seek to agree terms with regard to the principle of the injunction pending the permission hearing. The parties duly agreed terms by way of variation to Simon J's order. Holman J did not accede to the Defendant's application to set aside.
20. On 24^th April 2013, Collins J granted permission for Judicial Review and the continuation of the order of Holman J. The hearing of the application to vary Holman J's order was heard on 26^th April 2013. Collins J varied the order (i) to allow works to the chalk in the Northern Parkland but with restoration requirements and (ii) subject to express provision for the Claimant to return to Court on 7^th May 2013 to vary the order on the basis of further evidence regarding: irreversibility of the works and (iii) on the basis of an undertaking from the Interested Party to carry out the topsoil works before 8 May 2013. The Claimant and Interested Party subsequently agreed to a further variation of Collins J's order, thereby obviating the need for further hearing.
21. On 6^th June 2013, the Judicial Review hearing commenced before me and took three days. On 16^th August 2013, my draft judgment was released to counsel and the parties. Richard Buxton requested the Interested Party to cease work entirely on the basis of the decision outlined in the draft judgment. On 19^th August 2013, I ordered the Interested Party to cease work pending the handing down of the judgment. My judgment was perfected on 22^nd August 2013.

Rival contentions

22. The Claimant seeks its costs of the interim injunction proceedings from 18^th March 2013 against the Interested Party.
23. The Interested Party, in turn, seeks its costs of the interim injunction proceedings against the Claimant arising from (a) the hearing before Holman J on 16^th April 2013 and (b) the hearing before Collins J on 26^th April 2013, and submits that both parties should bear their own costs thereafter. Mr Walton, Counsel for the Interested Party, submitted in summary that: (i) the obtaining of the injunction order from Simon J on 26^th March 2012 was an 'abuse of process' because the matter had already come before Nicola Davies J on the previous day, 25^th March 2012, who had declined to grant an injunction but adjourned the question to a date a month hence; and, in any event, the Claimant had not been full and frank with Simon J and drawn his specific attention to the adjournment order of Nicola Davies J (or given requisite notice of the application to the other parties); (iii) Simon J's order had been 'terminated' by Holman J on 16^th April 2013; and (iv) since the Claimant had failed to get the order varied as it wished before Collins J at the hearing on 26^th April 2013, the Interested Party should have the costs at least of that hearing.

Analysis

24. I am unmoved by any of the Interested Party's arguments on costs. The battle lines were drawn by the Interested Party from the outset: it made it clear that it was not prepared to stop work on the Cherkley development, absent a court order. On 18^th March 2013, Richard Buxton wrote to the Interested Party's solicitors, Berwin Leighton Paisner, and requested work on the golf course at Cherkley cease pending the outcome of the permission application. On 19^th March 2013, however, Berwin Leighton Paisner made it quite plain that the Interested Party was not prepared to stop work and refused Richard Buxton's request. There was no indication from Berwin Leighton Paisner that the Interested Party was open for negotiation on the question. Berwin Leighton Paisner's letter merely said that the Interested Party would agree to 'expedite' the hearing of the Claimant's permission application.
25. In these circumstances, Mr Walton sensibly acknowledged in his oral submissions before me that he recognised that the Interested Party had to be 'kicked' to the negotiating table by the threat of an injunction. In my view, this was a correct and realistic assessment of the situation.

'Abuse of process' argument

26. I reject the submission that the Claimant's subsequent application made to Simon J on 26^th March 2013 was an 'abuse of process'. The matter had come before Nicola Davies J in the first instance solely on the papers. The Claimant was not satisfied with the order and sought to renew orally. The Claimant was fully entitled to do so. Time, however, was short and of the essence. The 26^th March 2013 happened to be the last day of term before the Easter Vacation. The Claimant was concerned that irremediable damage might be caused to the landscape if the matter was left to languish over the vacation and the Interested Party was allowed to press ahead with the development. Accordingly, the Claimant sought an immediate interim injunction and applied to Simon J as the Duty Judge on an urgent basis. It is true that the application was made ex parte when notice might have been given to the Interested Party. But, given the time constraints and the expressed intransigence of the Interested Party, I do not think that the Interested Party can have any real complaint.

'Full and frank disclosure' argument

27. In my judgment, there was no failure by Richard Buxton to give full and frank disclosure to Simon J on 26^th March 2013. The order of Nicola Davies J of 25^th March 2013 was in the papers before Simon J and the thrust of the application made to him was that Nicola Davies J had not had the opportunity on the papers to appreciate the full urgency of the matter.

Holman J

28. In any event, I am not sure that either the 'abuse or process' or 'full and frank disclosure' argument is open to the Interested Party. On 28^th March 2013, the Interested Party made an application to set aside the order of Simon J on a number of grounds including inter alia 'abuse of process' or 'full and frank disclosure'. The application eventually came before Holman J on 16^th April 2013. Holman J did not, however, accede to the Interested Party's application to discharge the injunction. Accordingly, it is difficult to see how the Interested Party can re-open these arguments again now. They were, inferentially, dismissed by Holman J.
29. Holman J also pointed out on several occasions to the Interested Party's Counsel, Mr Holland QC, the obvious need and merit of a claimant with an arguable case that planning permission has been wrongly and unlawfully granted seeking the relief from the court to ensure that no irremediable damage was done prior to the determination of its substantive claim.
30. Mr Walton's argument that Holman J technically 'terminated' Simon J's injunction does not hold water: as Holman J pointed out, with impeccable orthodoxy, Simon J's original order came to an end on the return date and it was for this reason that his order replaced Simon J's order.

Collins J

31. It is fair to say when the Claimant went back before Collins J on 26^th April 2013 seeking an order preventing earthworks and herbicide spraying etc. Collins J declined to made a specific order but was, however, clearly sympathetic to the Claimant's position and the importance of the risk of irremediable damage and to 'protect' the Claimant. For this reason, Collins J expressly left it open for the Claimant to return if it was able to obtain further evidence. This hearing was part of the inevitably 'iterative' process of obtaining and modifying an injunction in relation to on-going development works. In these circumstances, in my judgment, it would be wrong to separate out the costs of the hearing before Collins J for a special order.

Decision

32. For these reasons, in my view, I reject the Interested Party's application in relation to the costs of the interim injunction proceedings and order the Interested Party to pay the Claimant's costs of and occasioned by the interim injunction proceedings from 18^th March 2013, to subject to a detailed assessment if not agreed.

Order

33. I would be grateful if counsel could drawn up an Order to reflect my above rulings on costs.
FURTHER ORDER

UPON HEARING Douglas Edwards QC counsel for the Claimant, James Findlay QC counsel for the Defendant, and Robert Walton counsel for the Interested Party

AND FOLLOWING the Order of 22^nd August 2013 herein

IT IS FURTHER ORDERED THAT

1. The Claimant's costs of the substantive claim to the date of judgment therein on 22^nd August 2013 be paid by the Defendant (save for the costs of the Pre-action Protocol letter of 29^th October 2012 in respect of which there be no order as to costs), such costs to be subject to detailed assessment if not agreed.

2. The Claimant's costs of the interim injunction proceedings from 18^th March 2013 (and including the costs of the various applications made by the Interested Party in the course thereof) to 22^nd August 2013 be paid by the Interested Party, such costs to be subject to detailed assessment if not agreed.

3. The Claimant's costs in relation to its costs application following the judgment on 22^nd August 2013 be paid by the Interested Party other than in relation to the Claimant's counsel's brief fee for and solicitors' costs of 8^th November 2013 which shall be paid in equal shares by the Interested Party and the Defendant.

4. Since permission to appeal has been granted to both the Defendant and the Interested Party in respect of the judgment on 22^nd August 2013 in this matter, it is further ordered that paragraphs 1 to 3 of this further order be stayed until the final determination of such appeal by the Defendant and the Interested Party.

5. As against the Defendant and the Interested Party, for the avoidance of doubt, since this further order deals with consequential matters arising from the judgment on 22^nd August 2013 in this matter, it is ordered that this order in so far as it affects the Defendant and the Interested Party be subject to the permission to appeal already granted to both the Defendant and the Interested Party in respect of the judgment on 22^nd August 2013 but, to the extent any further permission to appeal is required, permission to appeal this further order is hereby granted to the Defendant and the Interested Party.

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Mr Justice Haddon-Cave 15^th November 2013