The award of costs in proceedings is governed by CPR Part 44, and its related Practice Direction. While the general principle is still that the losing party should pay the winning party’s costs, the court is given a wide discretion to make other forms of order. It may have regard to the conduct of the parties, both before and during the litigation, and to whether a party has succeeded in part only of his claim while not being wholly successful. The CPR accordingly requires what has been described as a “case-specific” consideration of costs.
In R (on the application of Cherkley Campaign Ltd) v Mole Valley District Council [2013] EWHC 3558 (Admin) the claimant had successfully applied to quash the decision of the local planning authority (“LPA”) to grant planning permission for an exclusive private golf course, hotel, health club and spa on green belt land in Surrey. It initially relied upon six grounds, namely: (1) green belt (2) need (3) landscape (4) reasons (5) water and (6) ecology. Ground 6 did not survive the permission stage, and ground 5 was rejected at the full hearing.
On the issue of costs in respect of the claim for judicial review, the LPA contended that because the claimant had not been successful on all of its six grounds, it should not recover its costs in full. (Counsel suggested a reduction in the region of 25%.) The claimant argued that such an approach would be unjust, because it had succeeded on multiple grounds.
Subject to one technical point on the pre-action protocol letter, the court held that the claimant was entitled to recover its full costs against the LPA in relation to the judicial review proceedings. It was not a case in which it would be just or appropriate to make a discount from the normal order for costs on either a percentage or an issues basis, for the following reasons: (A) it was not unreasonable for the claimant to put forward grounds 5 and 6; (B) the claimant had not pursued those grounds unselectively; (C) those grounds were closely related to the other grounds on which the claimant had succeeded, and: (D) it had succeeded handsomely on the major grounds at the heart of its challenge.
This decision reflects the established principle that it is entirely proper to have regard to the fact that in almost every case, even the winner is likely to fail on some issues.
John Martin
