Payne v Caerphilly County Borough Council

J U D G M E N T

Wednesday, 17th July 2004

1. LORD JUSTICE PILL: This is an appeal against the judgment of Mr Supperstone QC sitting as a Deputy High Court Judge whereby he refused a renewed application by Mr Clive Payne, the appellant, for permission to review judicially a decision of 26th February 2003 by Caerphilly County Borough Council, the respondents. The Judge ordered the appellant to pay the costs of the application. It was ordered that the costs be subject to detailed assessment if not agreed. The Judge referred at one stage of the argument to the question of costs being dealt with in two parts, but Mr Payne was not given the opportunity or invited to address the Judge on the second part, which is whether the assessment should be summary or detailed.

2. The appeal is brought only against the order for costs, permission to appeal having been granted by Mummery LJ following an oral hearing. Costs were claimed in the sum of £4,640. The respondents indicated, by letter dated 8th January 2004 and copied to the appellant, that they will not attend at the hearing of the appeal or make written submissions, and they have stood by that.

3. The appellant had sought to quash a planning permission for the change of use of a site within the Borough from general industrial use to use as a waste transfer station and material recycling facility. The Judge dealt with each of the six grounds advanced by the appellant and concluded that none of the grounds was arguable.

4. The respondents were represented at the hearing by Mr Jarman QC. The respondents submitted a detailed written argument to the Judge and Mr Jarman addressed the court. The Judge having refused the application, there was a prolonged discussion about costs. The appellant referred to paragraphs 8.5 and 8.6 of the Practice Direction in CPR Part 54, and Mr Jarman to paragraph 54.12.5 of the White Book, a commentary headed "Costs at the Permission Stage". Mr Payne fairly makes the point that while he had obtained access to the Practice Direction, he did not have a White Book.

5. Part 54 is, of course, the part of the CPR dealing with judicial review. In the course of argument, the Judge stated:

"The council had every right to attend through counsel. That is what they have done. It is normal on renewed applications for defendants to attend."

6. Having heard the appellant, the Judge concluded:

"In my judgment the council were entitled in all the circumstances to attend on this renewed application and they are entitled to their costs."

7. The Judge added, without further reference to Mr Payne, how costs should then be dealt with:

"I do not propose to make a summary assessment of costs, but to make an order that the defendants are entitled to an order of costs, the costs to be assessed if not agreed."

8. The relevant paragraph of the Practice Direction provides:

"8.5 Neither the defendant nor any other interested party need attend a hearing on the question of permission unless the court directs otherwise.

"8.6 Where the defendant or any party does attend a hearing, the court will not generally make an order for costs against the claimant."

9. The Judge did not have the advantage of the decision of this court in R on the application of (1) Mount Cook Land Ltd (2) Mount Eden Land Ltd v Westminster City Council[2003] EWCA Civ 1346 decided on 14th October 2003. The present issue was comprehensively considered in this court. Auld LJ stated at paragraph 72:

"Accordingly, I see no good reason in law or practice why the guidance given in paragraph 8.6 of the Practice Direction should not be followed in this and all cases in which a defendant or other interested party to a judicial review claim files an acknowledgment of service and attends and successfully resists it at a permission hearing. Generally - that is, save in exceptional circumstances - costs of and occasioned by such attendance should not be awarded against a claimant."

10. For present purposes, there is no need to set out the reasoning by which that conclusion was reached. Mr Payne makes the point that judicial review is an important remedy available to members of the public, and members of the public seeking to take advantage of it should not be a "hostage to costs", as he put it.

11. In the course of his judgment, Auld LJ dealt with the considerations which operate in each direction upon this issue. There is force in what Mr Payne says, but equally it is important that the time of the court should not be taken up by unmeritorious applications.

12. At paragraph 76, Auld LJ set out comprehensively the proper approach to be followed to the award of costs against an unsuccessful claimant for judicial review. Paragraphs 1 to 3 provide:

"1. The effect of Leach, certainly in a case to which the Pre-Action Protocol applies and where a defendant or other interested party has complied with it, is that a successful defendant or other party at the permission stage who has filed an acknowledgment of service pursuant to CPR 54.8 should generally recover the costs of doing so from the claimant, whether or not he attends any permission hearing.

"2. The effect of paragraph 8.6, when read with paragraph 8.5, of the Practice Direction, in conformity with the long-established practice of the courts in judicial review and the thinking of the Bowman Report giving rise to the CPR 54 procedure, is that a defendant who attends and successfully resists the grant of permission at a renewal hearing should not generally recover from the claimant his costs of and occasioned by doing so.

"3. A court, in considering an award against an unsuccessful claimant of the defendant's and/or any other interested party's costs at a permission hearing, should only depart from the general guidance in the Practice Direction if he considers there are exceptional circumstances for doing so."

13. Reference is then made in other subparagraphs to the broad discretion of the Judge in identifying factors constituting exceptional circumstances, and examples of circumstances which may be exceptional are given. Without the advantage of the Mount Cook Land guidelines, and possibly misled by the then contents of the White Book brought to the Judge's attention by counsel, the Judge clearly applied the wrong test, and the discretion in costs must be exercised afresh.

14. The respondents do not argue that exceptional circumstances are present, and rightly so, as it appears to me. I can find in the present case no circumstances which justify the court in failing to apply paragraph 8.6 of the Practice Direction and concluding that there should be no order for costs against the appellant.

15. It appears that the respondents did supply an acknowledgment of service, and it may be that they would have been entitled to the costs of doing so following paragraph 76(1) of Auld LJ's guidance. However, they have not made that claim specifically and have not supplied the court with material on which that component of their claim for costs, if any, can be identified and quantified. I am not prepared in the circumstances to make any allowance for that element of costs.

16. For those reasons, I would allow this appeal and quash the order for costs made by the Deputy Judge against the appellant on 5th September 2003. I would only add that considerations dealing with permission to appeal applications under CPR Part 52 are not identical to those in Part 54 dealing with judicial review. The current provisions as to appeals are set out in the Practice Direction to Part 52 at paragraphs 4.22 to 4.24.

17. LORD JUSTICE MAY: I agree that this appeal should be allowed for the reasons given by Pill LJ and to the extent that he has indicated.

18. LORD JUSTICE DYSON: I also agree that this appeal should be allowed. I would add a few words about the decision of the Judge to order a detailed assessment of the costs. Having decided to order Mr Payne to pay the respondent's costs, in my view, the Judge should have invited Mr Payne to make submissions on the question whether, as Mr Jarman QC contended, those costs should be summarily assessed or not. I take the view that this was obviously a case in which there should have been a summary assessment of costs, and the Judge gave no reasons for ordering a detailed assessment.

19. It seems to me that the general rule identified in the Guide to the Summary Assessment of Costs 2002 edition covers the situation. This provides that the court should make a summary assessment of the costs:

"(a) At the conclusion of the trial of a case which has been dealt with on the fast track ...

"(b) At the conclusion of any other hearing which has lasted for not more than one day, in which case the order will deal with the costs of the application or matter to which the hearing related ... "

20. This was an application for permission to apply for judicial review. The costs claimed were some £4,600-odd. I see no feature in the present case which should reasonably have led the Judge not to apply the general rule to which I have referred.

21. LORD JUSTICE PILL: Thank you, Mr Payne.

Orders:

Appeal allowed

Order for costs made by the Deputy Judge quashed

Order for costs of £400 to be paid to the claimant