Judicial review – Costs – Planning permission – Parties seeking to agree consent order to settle judicial review proceedings – Appellant interested party intervening to oppose consent order – Permission to proceed with claim refused on papers – Appellant opposing renewed oral permission hearing – Court granting permission but claim settled – Appellant being required to pay part of first respondent’s costs – Whether oral permission hearing after refusal on papers necessary for claim to proceed and settlement reached – Whether appellant liable for costs – Appeal dismissed
The first respondent brought a claim for judicial review against the decision of the second respondent local authority to grant planning permission to the appellant interested party. The second respondent never defended those proceedings. Initially, the appellant did not defend the claim either but, after permission was refused on the papers, the appellant sought to defend the claim by filing an acknowledgement of service out of time and appearing at the oral renewal hearing when permission for the judicial review to proceed was granted.
The proceedings were ultimately disposed of by a consent order approved by the court, which led to the claim for judicial review being allowed, but that left the issue of costs to be determined. The court decided that the second respondent should be liable for the first respondent’s costs up to 5 February 2019, when the appellant filed its acknowledgement of service and that the appellant should pay the costs thereafter on the grounds, amongst other things, that it had taken on the burden of defending the claim out of time.
The appellant appealed against the order requiring it to pay costs from 5 February 2019, which was part-way through the judicial proceedings. The appellant contended, amongst other things, that the issue of whether planning permission should be quashed could not be consented to by a local planning authority. An order had to be made by the court. The application for such an order could only be granted at an oral hearing if it had been refused on the papers first, as occurred in this case. Therefore, it was not the opposition of the appellant that created the need for an oral hearing and preparation for that hearing.
Held: The appeal was dismissed.
(1) Where permission had been refused on the papers, an application to renew it had to be made within seven days after service of the reasons for refusal: CPR 54.12(4). The phrase “claim for judicial review”, as defined by CPR 54.1(2)(a), was a broad one: it meant a claim to review the lawfulness of an enactment; or a decision, action or failure to act in relation to the exercise of a public function. It was not necessarily confined to the substantive hearing in a claim for judicial review but referred to every step of the procedure from the time when the claim was first commenced until it was finally disposed of. Further, CPR 40.6 included provisions relating to consent judgments and orders. There was no reason to give those provisions a restrictive meaning and, on their face, they included claims for judicial review. There was no good reason why they should not permit a consent order to be made in circumstances where, although permission had been refused on the papers, the parties were agreed that permission should be granted without a hearing.
(2) It was clear that an appeal against the exercise of discretion in making a costs order would only succeed if there had been an error of principle or the result was unjust or perverse. The task of the appeal court was not to substitute its own opinion for that of the judge at first instance when determining matters of costs. A judge determining a costs issue was entitled to express their reasons shortly and an appellate court should not interfere unless it was clear that they had gone wrong. For rulings to become too elaborate or formulaic in an attempt to make them appeal-proof would be contrary to the interests of justice. It was important that the task of busy judges dealing with costs applications should not become over-complicated or technical: R (on the application of Parveen) v Redbridge London Borough Council [2020] EWCA Civ 194; [2020] 4 WLR 53 considered.
(3) The key point was that the second respondent was prepared to concede the case before the judicial review hearing. At that stage, the court had not yet refused permission on the papers. Although that decision required the first respondent to renew her application for permission, that did not necessarily require a hearing to take place. It would still have been possible at that stage for the parties to agree a consent order. The representatives of the respondents participated in correspondence in late January and early February 2019 with a view to achieving precisely such a consent order. The reason it was not possible to reach agreement at that time was that the appellant would not agree.
The court had been entitled to reach the conclusion that, from 5 February, when the appellant made its application to the court, it had taken on the burden of defending the claim, since the second respondent had not filed an acknowledgement of service of the claim and had been prepared to concede the case. If the appellant had not opposed the claim, the parties would have been able to agree that permission for judicial review be granted without the need for an oral hearing.
(4) The judge had not erred in principle, nor was the result unjust or perverse. She was entitled to take a common-sense and realistic view of the situation. That inevitably involved doing broad justice but she was well aware of the circumstances and was entitled to set off some of the claimant’s costs of dealing with the appellant before 5 February 2019 against those incurred after that date but which did not concern the appellant.
Timothy Strachan QC (instructed by Sharpe Pritchard LLP) appeared for the appellant; Victoria Hutton (instructed by Attwells Solicitors) appeared for the first respondent; Robin Green (instructed by Mid-Suffolk District Council) appeared for the second respondent.
Eileen O’Grady, barrister
