Powerhouse Retail Ltd. & Ors v Seeboard Retail Plc & Ors

J U D G M E N T

1. LORD JUSTICE PILL: Two points arise on the judgments handed down. The first is an application by Mr Hill for the Secretary of State for Education and Skills, the interested party, for costs.

2. It is accepted that the successful appellants should have their costs against the respondents. The respondents by Mr Cavanagh QC oppose the application that the Secretary of State should also have his costs. Mr Hill accepts that there is no general principle that if a Secretary of State, because of the public importance of a question, is allowed to intervene, then in the event of success by the view he is taking, he is entitled to costs.

3. The point made is that it is fortuitous or accidental that the Secretary of State is not a party to these appeals in the full sense. A number of test cases were chosen so that the present point and others could be determined. This is part, as is indicated in the judgment, of what has been described as the Preston litigation, involving thousands of equal pay claims by part-time workers. The Secretary of State as employer was a party to one of the cases which came before the Employment Tribunal but he was successful on a point other than the one which has come before this court, so that as a party he fell out of the proceedings, though he was allowed, and understandably so, to intervene before the Employment Appeal Tribunal as an interested party. Mr Hill further relies on the fact that three sets of costs were awarded in 1997 in what he says is a similar situation.

4. For the unsuccessful respondents Mr Cavanagh submits in relation to that, that the situation is different: first, in that many more points were involved in the 1997 dispute; second, that there was a separate point raised by the Secretary of State in those proceedings; and third, that no point was taken as to costs on that occasion. In reply on the second of those points Mr Hill says that on the separate point involved the Secretary of State was unsuccessful, so that could not be the basis in itself for a separate order.

5. Even if the Secretary of State were a party, if the test case in which he was employer had come before this court on the present legal point, an issue would have arisen as to whether two sets of costs were appropriate and we have been referred by counsel to the Bolton decision in the House of Lords and the approach of Lord Lloyd.

6. The general rule is of course that only parties are entitled to costs, though there may be circumstances in which an interested party may be awarded them. In this case the appellants were well represented, as was known to the Secretary of State, and represented by counsel who had been in the litigation throughout. The point before the court is a specific and discrete point and, although the emphasis was different, the points put on behalf of the appellants and on behalf of the Secretary of State were substantially the same.

7. We do not consider that as a non-party the Secretary of State is entitled to costs in the circumstances of this case. Moreover, in those circumstances, we have a regard to the factors mentioned in Bolton . Even if he had been a party we would have needed a great deal of persuading that the unsuccessful party ought to pay two sets of costs in circumstances such as these. While the point does not arise expressly on the particular facts of this case, this appears to us to be a case where the parties, the appellants and the Secretary of State, could have made arrangements for a single representation, though they were not obliged to do so, as between them and the unsuccessful respondents it would not be just that the unsuccessful respondents be required to pay two sets of costs. Accordingly, the Secretary of State's application is refused.

8. Mr Cavanagh applies for leave to appeal to the House of Lords. He refers to the importance of the issue and to the generality of the application of the principle of the decision which the court has reached. This in our view is not a case of such importance that it is appropriate to grant leave in this court. We consider that it is a matter for their Lordships as to whether leave to appeal to the House should be given. Accordingly, the application is refused.

Order: application for costs by the interested party refused; application for leave to appeal refused.