Costs – CPR 44.2 – Committal proceedings – Respondent local authority bringing committal proceedings against appellant and her partner for breach of court order prohibiting residential use of land – Appellant no longer resident on land by date of hearing – Respondent seeking only declaratory relief against appellant – Court refusing declaration on ground that such relief of little practical utility – Court refusing to make costs order in appellant’s favour – Whether erring in exercise of discretion as to costs – Appeal dismissed
In March 2012, the respondent council obtained a court order restricting the use of a plot of land in Wisbech, Cambridgeshire, by forbidding the siting of mobile homes and caravans on the land or its use for residential development, including the occupation of caravans and mobile homes. The order did not name any individuals to whom it was addressed. However, the respondents’ enforcement officer served a copy on the appellant and her partner in April 2012.
In May 2013, the enforcement officer returned to the land and found that a touring caravan, mobile home and other residential items were still present on the land. The appellant and her partner were also present and were served with a letter confirming that a breach of the court order had been witnessed and that committal proceedings would commence.
In July 2013, the respondents issued an application to have both the appellant and her partner committed for contempt of court. By then, the enforcement officer had information indicating that the appellant no longer resided on the land although her partner continued to do so. The listed committal hearing was adjourned twice, during which time the appellant submitted statements that she had been the victim of domestic violence by her partner, that she was separated from him and that she had no intention of returning to the land.
By the time the hearing finally took place, the respondents were seeking only a declaration against the appellant rather than any further penalty such as an order for committal. The judge considered that there was prima facie evidence that the appellant was in breach of the court order but he nonetheless declined to make a declaration, taking the view that it would be of little practical use to the respondents where the appellant had already left the site. The judge dismissed an application by the appellant for a costs order in her favour.
The appellant appealed against the judge’s decision on costs. She contended that: (i) she was the successful party and costs should follow the event; and (ii) in refusing to make a costs order, the judge had wrongly had regard to the fact that the appellant was legally aided.
Held: The appeal was dismissed.
(1) Under CPR 44.2(2), the general rule was that the unsuccessful party would bear the costs of proceedings. The fact that a party was legally aided, rather than privately funded, should not normally affect that party’s right to recover costs. It was important for costs orders to be made in favour of successful legally aided parties. Such an order made a considerable difference to those acting for the legally aided party, since they would receive a much-reduced rate if paid by the Legal Aid Agency rather than the unsuccessful party. Moreover, if successful legally aided parties did not obtain costs orders when they should, a false picture would emerge as to the care that the Agency took of public money, with legal aid litigation appearing to be less effective, and the judgements of the Agency less well-considered, than they should.
(2) Nonetheless, there was a wide discretion under CPR 44.2(1)(a) as to whether costs should be paid by one party to another. The overriding objective was to do justice between the parties without incurring unnecessary court time and consequently additional costs. The judge in the instant case had taken the view that there was a prima facie case for contempt in relation to the appellant, but he was also of the view that the declaration sought by the respondents was of no practical value or utility. The breakdown in relationship between the appellant and her partner was such that there was no realistic prospect of the appellant reoccupying the premises. The judge had borne in mind the extended litigation history in the case and was alive to the fact that an adverse costs order would require him to try out all the issues. It was in those circumstances that he brought the matter to a substantive conclusion in a way that was accepted by the respondent and welcomed by the appellant. That was the correct approach to take.
It was relevant to the question of the continued utility of the litigation that both parties were publicly funded. So far as the judge had taken into account the appellant’s legally aided status, that fact bore on the utility of continuing the proceedings. There was no indication that, had he tried all the issues to a conclusion, the appellant’s legally aided status would have affected in any way the costs order that he then made. Properly viewed, this was not a case where the appellant was the “successful party”. While she had got the outcome she desired, she had been at risk of being the losing party had the matter proceeded. The respondents had produced sufficient evidence to deal with the contested issue of service of the court order, and to establish knowledge of it. Occupation of the premises during the relevant period was admitted. In those circumstances, the judge’s order was a proper exercise of his discretion: R (on the application of Boxall) v Waltham Forrest London Borough Council (2000) 4 CCLR 258 and F&C Alternative Investments (Holdings) Ltd v Barthelemy (No 3) [2013] 1 WLR 548 considered.
Galina Ward (instructed by Duncan Lewis) appeared for the appellant; Saira Kabir Sheikh (instructed by Sharpe Pritchard LLP, as agent for King’s Lynn and West Norfolk Council) appeared for the respondents.
Sally Dobson, barrister
Click here to read a transcript of King’s Lynn and West Norfolk Council v Bunning
