A claimant in statutory and judicial review cases who is unsuccessful at the permission stage is liable for the costs of the respondents and interested parties, the Supreme Court ruled last week.
In a rare Supreme Court decision solely on costs, Lord Hodge – giving the unanimous decision – found no error of law in the Court of Appeal’s decision to make an exception to the 1995 House of Lords decision in Bolton that, where there is multiple representation in a planning appeal, the losing party will not normally be required to pay more than one set of costs.
The issued extended beyond a statutory challenge under planning legislation subject to the procedure set out in practice direction 8C, Lord Hodge noted in CPRE Kent v Secretary of State for Communities and Local Government  UKSC 36.
“A similar issue can arise in an application for judicial review which is unsuccessful because the court refuses permission as there are similar rules for acknowledgement of service by defendants and interested parties in CPR part 54 and practice direction 54A.”
The underlying case was a challenge by the Kent branch of countryside charity CPRE to the local plan produced by Maidstone Borough Council and in particular a policy towards a site owned by Roxhill Developments Ltd.
The case fell within the Aarhus Convention and, as a result, CPRE Kent’s costs were capped at £10,000 in a claim against the Secretary of State as the first defendant, the council as the second defendant and Roxhill as an interested party.
The High Court refused permission for the claim and awarded costs of £2,879 to the Secretary of State, £5,245 to the council and £1,875 to Roxhill. CPRE Kent challenged the costs decision but it was affirmed by Her Honour Judge Evans-Gordon.
She said defendants and interested parties should as a general rule be awarded their costs of preparing the acknowledgement of service (AoS), as filing them was an important step in protecting their position.
The Court of Appeal upheld her decision, ruling that in judicial review and statutory review cases, when permission to seek review was refused, a claimant may be liable to more than one defendant and/or interested party for their costs of preparing and filing their AoS and summary grounds.
They did not need to show ‘exceptional’ or ‘special’ circumstances, it added, but the costs must be reasonable and proportionate.
Lord Hodge said there has been case law since 2001 “giving guidance which supports the view that the procedural innovations in CPR part 54 justify an exception from the practice set out in Bolton in relation to the cost of preparing and filing an acknowledgement of service and a summary of grounds. This reasoning applies mutatis mutandis to claims pursued under PD 8C”.
He concluded that there was no error of law in the decision “to qualify or make an exception to the guidance as to practice contained in Bolton because that decision is itself no more than guidance as to practice”.
Nor did the Court of Appeal err in its construction of CPR 54.8 and 54.9 and the equivalent provisions in PD 8C.
“First, the Court of Appeal in Mount Cook and this case was correct to consider that the preparation, filing and service of the acknowledgement of service is mandatory if the person served with the claim wishes to take part in the judicial review. That person risks losing an entitlement to attend the permission hearing which might give an opportunity to defeat a claim at an early stage…
“Secondly, there is nothing in the CPR rules to exclude an award of costs for the preparation of the acknowledgement of service. Thirdly, paragraph 8.6 of the part 54 practice direction (now paragraph 7.5 of PD 54A)… establishes a general practice in relation to the award of costs for attending the oral permission hearing but is silent as to the cost of preparing the acknowledgement of service.”
The Supreme Court noted that previous rulings have called on the Civil Procedure Rule Committee to address the principles and procedure for applications for costs at the permission stage.
“That committee can make rules, or the Master of the Rolls can make an appropriate practice direction, or the Court of Appeal can review its guidance on practice.
“Absent an error of law of general public importance, it would not ordinarily be appropriate for this court… to intervene in a decision on costs, and there is no basis for intervening in this case.”
Ned Westaway and Esther Drabkin-Reiter (instructed by Richard Buxton Environmental and Public Law) represented the appellant, James Maurici QC and Jacqueline Lean (instructed by the Government Legal Department) the respondent.