R (on the application of Warden and Fellows of Winchester College and another) v Hampshire County Council

  POST-JUDGMENT DISCUSSION    1.       GEORGE BARTLETT QC:  For the reasons given in the judgment that I hand down, the application is refused. 2.       Can I say, Mr Laurence, I have just received a note of your suggested amendments. Many of them are typographical, two are textual. In relation to the suggested textual amendments, on the face of it they appear to me to be appropriate but, provided that Mr Mould and Mr Litton have no objections, I would incorporate those. 3.       MR LAURENCE:  My Lord, there are certain other just typing errors that were not spotted, I think, by my learned friend and errors of layout, which your Lordship, I know, wanted to put right. 4.       GEORGE BARTLETT QC:  With your meticulous attention to detail, Mr Laurence, I am very grateful and I shall seek to incorporate those. 5.       MR LAURENCE:  My Lord, that was sent yesterday at 2’oclock and I am awfully sorry, I do not know why it did not find its way through to your Lordship. 6.       GEORGE BARTLETT QC:  Those will be incorporated in the final judgment. 7.       MR MOULD:  My Lord, as to that, I did see Mr Laurence’s suggested amendments and in particular the two textual changes which you mentioned and I for my part would raise no objection in relation to those. But as to the order, in the light of your Lordship’s judgment I apply for an order that the claim be dismissed and I seek the defendant’s costs which, if they are granted, this being a case in which there has been no suggestion it should be the subject of summary assessment, I ask for the usual order for costs to be subject to detailed assessment if they cannot be agreed. 8.       MR LAURENCE:  My Lord, I am sorry to be addressing you from out of the left wing here; you will appreciate why. My Lord, I wonder if I could just spend a moment trying to persuade your Lordship that this is one of those relatively rare cases where it is in fact inappropriate that the losing party be ordered to pay the costs of the winning party. As your Lordship knows, Hampshire County Council and we collaborated in order to try and bring this case forward as quickly as possible so that we could have your Lordship’s judgment on an issue which is of the widest possible importance, not only in Hampshire but throughout the country, where the application of section 67 and in particular the exception in subsection 3(a) and (b) of the 2006 Act is controversial. The purpose of bringing these proceedings, as your Lordship knows, and as you very fairly recorded in your judgment, was to obtain guidance as soon as possible at High Court level as to the meaning of these very controversial exceptions. That they are controversial, your Lordship may feel, was shown by the fact that Defra in my experience uniquely took the step of responding to an advice which counsel had written, referring to that advice and giving a guidance to authorities, having considered that advice, in the way that Defra eventually did and I think it would not be unfair to say that the guidance as given by Defra does not accord in all respects with the way in which your Lordship has dealt with the matter. So that although in the claimant’s here, and particularly the first claimant, you have a very well known and I suppose reasonably well off body in the shape of Winchester College, the reality is, and we have made no secret of this, that there are many others behind the scenes who have an interest in the outcome of these proceedings and your Lordship’s careful judgment, albeit one with which you would not expect us to agree, has been the result of the parties’ attempts to secure clarification from your Lordship of these important matters and it is for those reasons that I invite your Lordship in these somewhat exceptional circumstances to treat this as one of those cases where it is just not appropriate that the claimant should have to pay the costs of Hampshire County Council. I venture to suggest that by bringing these proceedings in the way that we did and at the early stage that we did, without waiting to go through the whole inquiry process that would have been involved had the orders been made and then there had been an objection and then there had been an inquiry and then we had to wait in order to bring the challenge under the six week window provided for by the legislation, if we had done that all over the country, countless thousands of pounds, unless a similar case had been brought by somebody else, would have been spent while this issue remained essentially unresolved and so what your Lordship has done by acceding to our invitation to deal with the matter at this early stage is frankly to effect a huge saving of costs for affected landowners and of course for county councils and others concerned, like the Trail Riders Fellowship, all over the country. I invite your Lordship just to bear that in mind when considering Mr Mould’s otherwise wholly understandable application. 9.       GEORGE BARTLETT QC:  Well, Mr Laurence, I hear what you say on that and I do understand that in circumstances like this a participating party can further the public interest through establishing the law and matters of practice that are of concern. The difficulty is that the costs have to be borne somewhere and in any test case, if this is a test case, it ought to be, unless there is some very clear reason why not, borne by the losing party. 10.     MR LAURENCE:  I agree and the very clear reason I have tried to give your Lordship is the enormous saving that would have been effected by the fact that we begun these proceedings before the Arster(?) provision bit to prevent any such challenge being mounted under our somewhat ridiculous system, I would respectfully suggest, right at the end of a process. But, my Lord, I cannot and do not try to say more than that. 11.     GEORGE BARTLETT QC:  No, it does not seem to me that where the council have been successful in this that they should not have there costs. It seems to me appropriate that they should. 12.     MR LAURENCE:  I understand. Well, in that case, my Lord, your Lordship orders accordingly the costs to be assessed if not agreed. My learned friend for the intervener has very kindly indicated that he does not propose to make any application on behalf of the Secretary of State. I see if he kindly confirms that. So, my Lord, two other matters remain. 13.     I should perhaps in fairness, when making my application on costs, have said that of course we want it both ways. If we successfully appeal, we would undoubtedly want to try and recover our costs from Hampshire County Council and that leads to the question of an appeal. My Lord, what I would respectfully suggest is that, looking at page 1531 of the White Book and reminding myself of what Lord Woolf said in Swain v Hillman, the court had to consider whether there was a realistic, as opposed to a fanciful, prospect of success in applying the test for permission to appeal and, my Lord, this is just not a case where the issues which your Lordship has resolved in the way that you have are issues which could be described as fanciful for the claimant to be able to persuade another court to take a different view about. There are plainly very, very acutely difficult questions of statutory construction that your Lordship has grappled with in his judgment and I would therefore respectfully say that the first limb of the test is abundantly made out. But, my Lord, if there were any doubts about that there can surely be no doubt that this is a case where it is appropriate that the issue be looked at at a higher level. I would venture to say, my Lord, that if this judgment is not appealed it is almost certain that in some other case an attempt will be made to take the matter to a higher level and what in practice would happen, no doubt, is that an application would be made for judicial review, leave would be refused on the basis of your Lordship’s judgment and one would go straight to the Court of Appeal in order to try and take the matter further in that way. So, given the enormous interest in getting an authoritative ruling at the highest possible level in order to avoid amongst other things the type of expenditure that I was referring to a moment ago, your Lordship may feel that this is an appropriate case and I respectfully suggest you should say that it is an appropriate case where, for other reasons, there is a compelling other reason why there should be permission to appeal and I accordingly seek it. 14.     My Lord, just while I am on my feet, could I also indicate that I have discussed with my learned friend Mr Mould whether he would oppose an application for your Lordship to extend the time within which to appeal or to seek leave to appeal. Your Lordship of course has power to do that. The Practice Direction indicates that in the normal way you should not extend time for more than two weeks beyond the 21 days that the rules provide for. My Lord, I did a little sum to work out what the position would be if that were to be the case and we would get an extension until Wednesday 2nd January, so that effectively the whole of that final week is exactly in the Christmas and New Year period. I wonder whether in the circumstances your Lordship would extend time, whether you give permission to appeal or not, to Wednesday 9th January, which would be in the circumstances an extension of three weeks over the normal three week period. 15.     GEORGE BARTLETT QC:  Yes, thank you. Mr Mould, do you want to say anything on what is essentially the wider implication point that Mr Laurence raises? 16.     MR MOULD:  Well, my Lord, there is no doubt that the case is one which would be of interest to those other than those who have been involved in the case itself and that has been common ground between the parties, as your Lordship knows, but nevertheless I would oppose the application for permission, essentially on this basis: there is no inconsistency between a case which raises a difficult issue for this court to resolve and, that issue having been resolved, the judge taking the firm view that the prospects of his decision being reversed on appeal are fanciful. Your Lordship, in my respectful submission, having heard the arguments on the difficult issue that is before the court, has reached a clear and firm view and, moreover, a view which your Lordship has indicated he would have reached by a different and additional route to that which was urged upon you by myself in submission. Your Lordship in my respectful submission can conclude that, although the matters raised were not easy, your Lordship has seen the answer to them clearly and that, albeit that others will be interested in the outcome, the conclusion your Lordship has reached is one which is manifestly practical and will enable people to have the authoritative guidance on this issue which this case was designed in its wider context to secure. 17.     GEORGE BARTLETT QC:  Yes. One thing that goes through my mind is that the great — or one of the objectives was to ensure an early determination of the issue. If I were to refuse leave, it would be open to the Court of Appeal in determining whether leave should be granted to take into account that particular factor because any appeal clearly would diminish that particular objective. 18.     MR MOULD:  Essentially there are a balance of considerations here as there are in any case and, for the reasons I have submitted, and having regard to what your Lordship has just said, I would suggest that the balance, so far as this court is concerned, is — 19.     GEORGE BARTLETT QC:  Very well. I am going to refuse leave to appeal. My view is that there is no reasonable prospect of success for the reasons I have given in my judgment for refusing the application and, although I realise the potential wide implications of the judgment, I do not think that on that ground alone I should grant leave. That seems to me to be appropriately to be left to the Court of Appeal who might feel, if they agreed with me on the prospects, and they might not, that the prolonged uncertainty that an appeal would entail would not justify leave. 20.     Mr Laurence, I extend time for seeking leave to appeal to 9th January. 21.     MR LAURENCE:  Thank you, my Lord. 22.     GEORGE BARTLETT QC:  I am very grateful to you all.  Thank you very much for your assistance.