Judicial review – Permission granted but claim dismissed at substantive hearing – Defendants awarded costs save for those of permission hearing – Costs taxed on basis that claimant liable for defendants’ other pre-permission costs – Whether open to court to award such costs – Appeal dismissed
The claimant applied for permission to bring a judicial claim to quash a grant of planning permission and listed building consent for a development scheme. Permission was granted but, at the subsequent substantive hearing, the claim was dismissed. The claimant was ordered to pay 75% of the defendants’ costs of the claim, which did include the costs of the permission hearing. At a further hearing for taxation of costs, the claimant submitted that, as a matter of principle, he should not be liable for any costs incurred by the defendants prior to the decision to grant permission to bring the judicial review claim, save for the costs of preparing the defendants’ acknowledgement of service and grounds of opposition to the claim. He argued that the judge’s order should be taken to have that meaning. Rejecting that contention, the master held that the claimant was liable to pay reasonably incurred pre-permission costs. The claimant appealed.
Held: The appeal was dismissed.
The master’s task had been to interpret the judge’s costs order according to the meaning that would normally be attributed to the words of the order at the date it was made, and taking into account any relevant statutory provisions, procedural rules, practice directions and judicial authorities. Several authorities indicated that it was open to the judges of the Administrative Court, in exercising their discretion to award costs under CPR 51, to award pre-permission costs against an unsuccessful claimant after a substantive hearing: Young CO/1543/2001 and R (on the application of Thurman) v Lewisham London Borough Council CO/2806/2003 applied; R (on the application of Leach v Commissioners for Local Administration [2001] EWHC 455 (Admin); [2001] 4 PLR 28 R (on the application of Mount Cook Land Ltd) v Westminster City Council[2003] EWCA Civ 1346 distinguished. In the light of that, the most obvious and natural meaning of the judge’s costs order was that the claimant should pay 75% of the defendants’ costs, including their pre-permission costs, but excluding the costs of the permission hearing.
James Pereira (instructed by Richard Buxton, of Cambridge) appeared for the claimant; James Findlay (instructed by Sharpe Pritchard) appeared for the defendants.
Sally Dobson, barrister
