Application for judicial review — Concurrent application under section 42 of Supreme Court Act 1981 — Relationship between the two applications — Whether appropriate to award costs of acknowledgement of service of judicial review proceedings — Appeal dismissed
The appellant and another party applied for permission to seek judicial review of four planning decisions relating to a proposed development. The judicial review form was sent to the defendants and other interested parties, all of which responded with acknowledgements of service and statements of grounds for resisting the claim, as required by CPR 54.8. Although the second applicant had made a valid application, the appellant was prohibited, as a vexatious litigant, from commencing proceedings without the permission of the court. He accordingly made a simultaneous application for leave to apply for such permission retrospectively, pursuant to section 42(3) of the Supreme Court Act 1981.
At an oral hearing of that application, the first interested party was represented by counsel. The judge directed that the judicial review permission application should be heard at the same time, on the ground that the threshold under the two applications was not significantly different and a decision on the latter was necessary to determine the former. He refused both applications, holding that the claim was untenable on grounds of delay and on the merits. He also allowed an application by counsel for the interested party, under section 51 of the 1981 Act, for the costs of acknowledgement of service.
The appellant appealed on the issue of costs, arguing that the acknowledgement of service provisions under CPR 54 were not relevant to his section 42 application. He argued that costs should not have been awarded: (i) in the section 42 application, because no direction had been made in that application for the attendance of other parties; or (ii) in the judicial review proceedings, because he was not, and could not have been, a party to those proceedings, and there was no respondent’s notice seeking costs against him as a non-party.
Held: The appeal was dismissed.
1. The costs had arisen as an incident to the judicial review proceedings, not from the section 42 application. Although there was jurisdiction, under section 51 of the 1981 Act, to award the costs of resisting a section 42 application, the costs in issue in the instant case had not arisen from the section 42 procedure or any direction made under it. They related to the acknowledgement of service, the requirement for which arose only under the judicial review procedure.
2. As to the judicial review, it did not matter whether the appellant was technically a “party” to the proceedings. It was sufficient that he was the main instigator and was using the other claimant as a means of gaining access to justice for his own purposes; he was therefore a “real party” for the purposes of costs: Dymocks Franchise Systems (NSW) Pty Ltd v Todd (Costs) [2004] UKPC 39; [2004] 1 WLR 2807 applied. There was no merit in the appellant’s submission that that point was not open to the court in the absence of a respondent’s notice to that effect.
Per curiam: (1) The simple guidelines set out in Re Ewing (no 1) v Highbury Corner Magistrates Court, ex parte Ewing [1991] 1 WLR 388, as to how section 42 applications and judicial review permission applications should be dealt with procedurally, needed reconsideration in the light of the new CPR. There could be no single solution, and judges needed to fashion their orders according to the varying circumstances of each case. (2) The principles established in R (on the application of Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346; [2004] 1 PLR 29 as to awards of costs in judicial review cases that failed at the permission stage, should not be applied in a way that seriously impeded the right of citizens to access justice. The courts should be careful to ensure that the costs falling upon the judicial review claimant were not disproportionately inflated by the involvement of the other parties at the permission stage. A specific rule or practice direction was needed to govern the procedure for applications for costs at the permissions stage; clarification of what was required by way of a “summary of grounds” under CPR 54.8 would also be helpful.
The appellant appeared in person; Saira Kabir Sheikh (instructed by Thomson Snell & Passmore) appeared for the Royal British Legion, the first interested party; John Pugh-Smith (instructed by CMS Cameron McKenna) appeared for Pegasus Homes, the second interested party; Charles Bourne (instructed by the Treasury Solicitor) appeared as advocate to the court; the defendants did not appear and were not represented.
Sally Dobson, barrister
