Judicial review is a public law remedy, which is available to parties with property interests that will be affected by the grant of planning permission to develop neighbouring land. None the less, applications for judicial review do sometimes appear to be driven primarily by commercial or private motives.
The outcome in Land Securities plc v Fladgate Fielder [2009] EWHC 577 (Ch); [2009] PLSCS 107 will interest parties on all sides of the property industry. The developer issued proceedings against the law firm claiming that it had abused the legal process by applying for permission to commence judicial review proceedings in respect of a planning permission for development obtained by the developer.
The developer claimed that the law firm had commenced proceedings with an ulterior motive, which was to bring pressure to bear on the developer to force it to strike a deal with the firm to help finance the its relocation to new offices. The developer claimed that this constituted an abuse of the judicial process, and that this was a civil wrong that must be corrected by the payment of damages.
The judge reviewed the authorities and upheld the developer’s arguments that there had been a tort of abuse of the legal process (although he refused to define the precise ingredients and limits of the tort). The judge also ruled that tortious rights may arise in cases involving public law, as well those involving rights that are enforceable in private law. Consequently, the tort of abuse of the legal process would apply to applications for judicial review.
According to the judge, the issue at the heart of the case was whether the application for judicial review was motivated by a collateral and improper purpose. The judge accepted that the law firm might not have been inspired by public interest considerations, and that it was trying to use its bargaining position to gain a financial benefit that it could not otherwise obtain. None the less, the judge decided that it was enough that the law firm had been seeking to protect its interest in and enjoyment of its building by using its bargaining position to try to obtain compensation for any diminution in the value of its interest.
The judge examined his logic by considering what the position would have been, had there been grounds for a private law action in nuisance. The judge ruled that no one would consider that the law firm had been acting improperly in such circumstances, were it to use its bargaining position to secure a payment to enable it to relocate elsewhere. In other words, the law applies to public and private law claims in exactly the same way. Consequently, the judge rejected the developer’s claim for £17m in damages.
Will this be the last word on the subject? One suspects not. The judge indicated that he expected the parties to take their case to appeal, whatever the outcome.
Allyson Colby is a property law consultant
