The general rules in relation to costs in court proceedings are set out in CPR Pt 44. They preserve the basic principle that costs are always in the discretion of the court. In relation to statutory planning challenges and judicial review claims, however, Lord Lloyd in Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 3 PLR 37 set out guidance where multiple representation is involved. In such instances, while costs awards remain in the discretion of the court, he stated that the following propositions apply.
(1) A successful Secretary of State will normally be entitled to the whole of his costs, without sharing his award by apportionment. (2) The developer is not entitled to his costs unless he can show a separate interest, one not covered by the Secretary of State, on which he was entitled to be heard. (3) A second set of costs is more likely to be awarded at first instance than on appeal. (4) Even where three or more separate interests exist, an award of a third set of costs will rarely be justified.
A number of subsequent decisions demonstrate instances in which a special justification for the award of more than one set of costs has been found. Suffice it to say, for present purposes, that two such decisions involved allegations of (a) serious impropriety against and (b) fraud on the part of the developer. In each case, it was accepted that there was a special issue on which the developer had been entitled to be heard. We now have a further example of that general approach.
In R (on the application of Harris) v Secretary of State for Communities and Local Government [2014] EWHC 3740 (Admin), the claimant sought unsuccessfully to quash the decision of an inspector on appeal upholding the refusal of planning permission by the local planning authority (“LPA”). At the hearing, the claimant appeared in person, and both the Secretary of State and the LPA were represented by counsel. The claimant, at one point, contended that the LPA had falsified an earlier planning permission relating to his property by adding a second page to the decision notice. This purported to limit the extent of the permission granted.
The court both refused to accept that there was sufficient evidence before it to reach any conclusion on this contention, and made a separate award of costs in favour of the LPA – in addition to that made in favour of the Secretary of State. The judge held that the accusation made by the claimant against the LPA made it appropriate for the LPA to have filed evidence and to have been represented before the court.
John Martin
