Judicial review – Challenge to grant of planning permission – Permission granted but claim dismissed at substantive hearing – Respondents awarded costs save for those of permission hearing – Costs taxed on basis that appellant liable for respondents’ other pre-permission costs – Whether costs order correctly interpreted – Whether such an award appropriate in principle – Appeal dismissed
The appellant applied for permission to bring a judicial review claim to quash a grant of planning permission and listed building consent for a development scheme. Permission was granted, but the claim was then dismissed at the substantive hearing. The appellant was ordered to pay 75% of the respondents’ costs of the claim, not to include the costs of the permission hearing. At a further hearing for taxation of costs, the appellant submitted that, as a matter of principle, he should not be liable for any costs incurred by the respondents prior to the decision to grant permission to bring the judicial review claim, except for the costs of preparing the respondents’ 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 appellant was liable to pay reasonably incurred pre-permission costs. The appellant’s appeal against that decision was dismissed; the judge held that the master’s task on taxation had been one of interpretation of the costs order, and that the most obvious and natural meaning was the one that he had given.
On a further appeal by the appellant, the matter was treated as a more general issue of principle as to whether an order, under which a defendant was entitled to recover its costs in judicial review proceedings that had gone to a full hearing, included all costs reasonably incurred before the grant of permission.
Held: The appeal was dismissed.
It was not appropriate to apply a general rule whereby a successful defendant, which had been awarded costs following a full judicial review hearing, should be entitled not only to its acknowledgement costs but also to any reasonably incurred preparation costs. Although such a rule would accord with the practice in civil litigation, that was not a sufficient justification in public law. The appropriate guidelines were that: (i) the nature and purpose of the particular claim was relevant to the exercise of the judge’s discretion on costs, such that a claim, albeit unsuccessful, that was brought partly or wholly in the public interest, rather than for mainly commercial or proprietary reasons, could properly result in a restricted costs order or no order for costs; (ii) if costs were to be awarded against the claimant, it would be for the defendant to justify an award of all preparation costs incurred pre-permission, rather than merely the costs of preparing and serving an acknowledgment of service with grounds of opposition, and it was possible that there would be insufficient reason why such costs should be recoverable; and (iii) those questions should be dealt with by the trial judge, leaving the costs judge to deal with questions relating to the reasonableness of individual items. If the judge made an undifferentiated order for costs in a defendant’s favour, that should be regarded as including any reasonably incurred preparation costs. However, pursuant to the 2004 practice statement (Practice Statement (Judicial Review: Costs) [2004] 1 WLR 1760), it should be held to exclude any costs of opposing the grant of permission in open court, such costs to be dealt with on the principles laid down in R (on the application of Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346; [2004] 1 PLR 29.
In the instant case, the judge’s costs order, properly interpreted, included all the council’s pre-permission preparation costs. However, it was unsatisfactory that such an order should have been made in as broad a form as it had, and future orders should be more specific.
Robert McCracken QC and Mark Westmoreland Smith (instructed by Richard Buxton Solicitors, of Cambridge) appeared for the appellant; James Findlay and Jenny Oscroft (instructed by Sharpe Pritchard) appeared for the respondents.
Sally Dobson, barrister
