Ewing v Office of the Deputy Prime Minister & Anor

On 18th February 2005 an application was made for judicial review of four planning decisions relating to a proposed development in Weston-Super-Mare. On the first page, the claimants were named as “(1) Terence Patrick Ewing (proposed) and (2) Keith Vernon Hammerton”; and their address was given as that of “the Euston Trust” in London. In section 8 of the claim form (“statement of facts relied on”), Mr Ewing was described as “a heritage and environmentalist issues campaigner”, who had been “involved in several controversial planning applications in London and other parts of the country”, and had assisted in setting up the Euston Trust, “a newly formed “National Heritage Nature and Environmental Preservation Society”. Mr Hammerton was described as “a heritage campaigner”.

It was noted that the development site included a building known as the Severn Croft, “a former hotel and of considerable architectural interest”. There was no indication of any more specific reasons for the claimants’ interest in this particular development or in this locality. The statement of truth was signed by them both as “claimants”. The claim form was accepted and stamped on 18^th February by the Administrative Court office. It was listed as CO/1057/2005.

The application was validly made as respects Mr Hammerton. However, Mr Ewing as a vexatious litigant (under an order made in 1990) was prohibited from commencing proceedings without leave of the court. He had not obtained leave by the 18^th February. On the same day he lodged an application for “leave to apply retrospectively”. His witness statement described him as “a Heritage Campaigner of the Euston Trust”. Again it gave no indication of any reasons for his special interest in this site, but relied generally on the grounds in the judicial review claim. Apart from the word “(proposed)” after his name on the first page, the judicial review claim form gave no indication that Mr Ewing needed permission to commence proceedings. Mr Ewing now accepts that he should have made that clear.

In the claim form, three of the decisions under challenge (between January 2003 and November 2004) were attributed to the North Somerset District Council, as local planning authority; the fourth (December 2004) to the Office of the Deputy Prime Minister (the First Secretary of State). It named three “other interested parties”: the Royal British Legion (“RBL”), Pegasus Retirement Homes plc (“Pegasus”), and Dorchester Land Ltd (“Dorchester”). RBL is the owner of the site. Pegasus and Dorchester are developers who are or have been associated with the development proposals.

On 23^rd February 2005, copies of the judicial review form were sent under a cover of a letter written by Mr Hammerton, in the name of the Euston Trust, to the two defendants and the three interested parties. In due course, all five responded with acknowledgments of service and statements of grounds for resisting the claim. In the meantime, on 10^th March, Mr Ewing’s section 42 application came before Forbes J on paper. It had been given the same number (CO/1057/2005) as the judicial review application. He ordered that it should be adjourned for oral hearing. He gave no further explanation, and he made no direction as to the appearance of any other parties. On 23^rd March the Administrative Court office sent a letter to RBL (and, I assume, to the other parties) indicating that “the above matter” had been listed for mention on 8^th April 2005, with a time estimate of 20 minutes. The letter gave the reference number CO/1057/2005, and the heading referred to the judicial review proceedings. There was no specific reference to the section 42 application, nor any other reference to the subject-matter of the mention.

There was a hearing before Ouseley J on 8th April. On that occasion, Mr Ewing and Mr Hammerton were present in person; and one of the interested parties, RBL, attended by counsel. The judicial review application had not yet been formally considered on paper. However, Ouseley J directed that it be heard with Mr Ewing’s application under section 42 –

“.. as it is a necessary part of understanding whether his claim under the 1981 Act should be granted.”

He added –

“There do not appear to be any significant differences between a standard which a case has to reach in order for permission to be granted under section 42(3) and the threshold which is habitually applied by this court in deciding whether permission to apply for judicial review should be granted. Accordingly, the application by Mr Ewing has been considered with the application for permission to apply for judicial review. If he succeeds in the one, he succeeds in the other; and, if he fails in the one, he fails in the other.”

After hearing argument, he delivered a judgment in which he gave his reasons for refusing both applications. He made no ruling on the standing of the claimants, commenting –

“I do not consider it normally appropriate, and do not do so here, to decide standing without consideration of the merits.”

He held that, on delay grounds alone, the challenge to the first two decisions was “untenable”. In relation to the third decision (the November 2004 resolution), he discussed the merits of the challenge, which related largely to the extent to which the authority had taken proper account of guidance note PPG15 and of an objection from English Heritage, before authorising demolition of the Severn Croft. He rejected the grounds of challenge as “unarguably wrong”. As to the Secretary of State’s decision not to revoke, the claimant’s request, and the response to it, had been made on the mistaken basis that the relevant permissions had been issued. Ouseley J accepted that there remained the possibility that the Secretary of State might be persuaded to call in the application for his own decision. However, he considered that to be an insufficient basis for keeping the present proceedings on foot:

“The right course to follow is for a proper application for call-in to be made – an application that would explain why it was said that this case raised more than local concerns. That would be the relevant consideration… The Secretary of State can then make a considered reply to that application.”

There followed an application by counsel for RBL for the costs of the acknowledgement of service (not of the actual hearing) in accordance with the Mount Cook principles (see below). Mr Ewing resisted the application against himself, on the grounds that the acknowledgement of service provisions were not relevant to his own application under section 42. Conversely, he resisted any order against Mr Hammerton, on the grounds that he had “played only a negligible role in the proceedings”. The transcript records Mr Hammerton as saying that his own involvement had been “… to support Mr Ewing in what he was doing as goodwill rather than anything else.”

Ouseley J ordered them both to pay the costs of RBL to be assessed, on a joint and several basis. Mr Hammerton was liable on any view, “having participated in these proceedings and caused costs to be incurred”. He continued:

“So far as Mr Ewing is concerned, it would be to my mind highly undesirable if the technical point that he raises were to mean that costs were properly incurred by an interested party and yet they had no means of obtaining costs for dealing with the somewhat unusual position that arises here. It seems to me that, if a vexatious litigant seeks permission to institute judicial review proceedings, the two applications, permission under section 42 and permission to apply for judicial review, have to be dealt with together in order for an expeditious result to be achieved in the interests of everybody.

It therefore follows to my mind that the costs consequences should be the same as if this were an ordinary application for permission to apply for judicial review and the fact that strictly there has been no actual service because that is not yet permitted by the rules, should not stand in the way of an order for costs.”

He gave Mr Ewing section 42 permission to apply for permission to appeal to the Court of Appeal, solely in respect of the order for costs. On 30^th June Brooke LJ gave Mr Ewing permission to appeal limited to this issue. There is no outstanding appeal by Mr Hammerton against the costs order as it affects him.

Before considering the issues in the appeal, it is necessary to say something about the relationship between the two procedures. In one of Mr Ewing’s early cases, Ex parte Ewing [1991] 1 WLR 388, it was decided that an application for permission to apply for judicial review is itself a “proceeding”, so that section 42 leave is also required. In that case, Lord Donaldson MR gave guidance as to how the two forms of application should be dealt with procedurally, under the rules as they were then:

“The proper way to deal with the matter, in my judgment, is that, upon an application being made by someone to whom section 42 applies for leave to apply for the judicial review of the decision, the matter should be placed before one of the judges who habitually deal with applications for leave under Ord. 53 r. 3 and that he should consider the matter on the footing that he is faced with an application under the section 42 order and an application under Order 53. If he decides that there is a case for giving leave under Order 53, he will of course have no difficulty in deciding that it is a case in which he should also give leave under the section 42 order, and he should give both leaves. If he decides that there is no case for giving leave under Order 53 he equally will have no difficulty in refusing leave under the section 42 order.

It is at the next stage that things will be different according to whether or not he has given leave under the section 42 order. If he refuses leave under the section 42 order, that is the end of the matter, because there is no right of appeal … If he gives leave, the respondent will be unable to attack the leave under section 42 because that is final, but he may be able to attack the leave under Order 53. At that stage the vexatious litigant, having obtained his leave under section 42, will be treated in all respects as if he were not subject to the order.”

This guidance, in my view, needs to be reconsidered in the context of the Civil Procedures Rules, as they now stand. Since 1991, both forms of procedure have undergone significant change, particularly in respect of the involvement of other parties. I will take them in turn.

Judicial review

The current procedure for judicial review (applicable since 2^nd October 2000) is to be found in CPR Part 54 and the Judicial Review Practice Direction. There is also a Pre-action Protocol for Judicial Review (White Book, Vol 1, C-8001), which gives guidance on steps which good practice requires to be taken before the formal claim.

The Protocol advises that, except in urgent cases, the claimant should send a “letter before claim” to the proposed defendant, in a standard form (Annex A to the Protocol), identifying the decision which is being challenged, giving a brief summary of the facts, and explaining why it is “contended to be wrong”, and what remedy is sought. The letter should normally identify any interested parties, and copies should be sent to them. The defendant should normally respond within 14 days, again in standard form (Annex B), providing where appropriate a fuller explanation of the decision, and indicating whether the claim is conceded in whole or in part, or will be contested. Again, the letter in response should be sent to the interested parties. Where use of the Protocol is appropriate -

“the court will normally expect all parties to have complied with it and will take into account compliance or non-compliance… when making orders for costs” (para 7).

Turning to the rules, CPR Rule 54.4 provides that the court’s permission to proceed is required in a claim for judicial review. CPR 54.7 requires the Claim Form to be served on the defendant and, unless the court otherwise directs, “any person the claimant considers to be an interested party.” CPR 54.8 requires any person so served “who wishes to take part in the judicial review” to file an acknowledgment of service including “a summary of any grounds for resisting the claim”. By CPR 54.9, a party who fails to file an acknowledgment of service may not take part in the permission hearing, unless the court allows him to, and the failure may be taken into account in later decisions as to costs; but he is not precluded from taking part in the substantive hearing of the judicial review, subject to complying with the rules relating to that. CPR 54.9 is supplemented by paragraph 8 of the Practice Direction. The court will generally consider the application without a hearing (8.4). If a hearing is held, the other parties need not attend unless the court so directs (8.5); and where such a party does attend “the court will not generally make an order for costs against the claimant” (8.6). If permission is given, the order is served on the defendants and interested parties by the court (CPR54.11). By CPR54.14, any defendant or other person served with the claim form who wishes to contest the claim must file and serve “detailed grounds” for doing so, within 35 days of the service of the order.

The provisions for service on, and response by, the other parties were an innovation. Formerly the rules allowed the application for permission to be made without notice to the other parties. There was no formal provision for a response at the permission stage, although it was not uncommon for the court to seek the written assistance of the respondent authority, or to direct an oral hearing on notice. The change followed the publication in March 2000 of A Review of the Crown OfficeList by a review team headed by Sir Jeffery Bowman (“the Bowman Report”). Para 24 of the report contained this recommendation:

“If the defendant indicates that he intends to contest the claim, then he must, in his acknowledgement, also set out an outline of the grounds of defence. There are two reasons for this. Firstly, it requires the defendant to address his mind to the issues in the claim and his response. Secondly, his outline grounds of defence will assist the judge at the permission stage by providing a fuller understanding of the issues and arguments. We do not expect the defendant to incur substantial expense at this stage” (emphasis added)

The review team also recommended (at para 34) that after the defendant had been notified of the grant of permission, he should have 35 days in which to serve evidence and detailed grounds of defence on all other parties.

Later in this judgment, I shall comment further on the contrast between the “summary of grounds” required at the acknowledgement stage, and the “detailed grounds” required when permission has been granted.

Vexatious litigants

Under s 42(1) of the Supreme Court Act 1981 the High Court may make a “civil proceedings order” if, on application by the Attorney General, it is satisfied that any person has “habitually and persistently and without any reasonable ground” instituted vexatious civil proceedings, or has made vexatious applications in any civil proceedings. The effect of such an order is that

“(a)

no civil proceedings shall without the leave of the High Court be instituted in any court by the person against whom the order is made;…”

Section 42(3) provides that leave shall not be given unless:

“… the High Court is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application.”

There can be no appeal against a decision of the High Court refusing leave (s 42(4)).

The procedure is now governed by paragraph 7 of the Practice Direction supplementing rule 3.4 of the Civil Procedure Rules. This provides:

“7.6

The application notice, together with any written evidence, will be placed before a High Court Judge who may:

(1)

without the attendance of the applicant make an order giving the permission sought;

(2)

give directions for further written evidence to be supplied by the litigant before an order is made on the application;

(3)

make an order dismissing the application without a hearing; or

(4)

give directions for the hearing of the application.

7.7

Directions given under paragraph 7.6(4) may include an order that the application notice be served on the Attorney General and on any person against whom the litigant desires to bring the proceedings for which permission is being sought.

7.9

A person may apply to set aside the grant of permission if:

(1)

the permission allowed the litigant to bring or continue proceedings against that person or to make any application against him, and

(2)

the permission was granted other than at a hearing of which that person was given notice under paragraph 7.”

The current provisions relating to the role of the proposed defendants can be contrasted with the previous procedure, in which they played no part (see Jones v Vans Colina [1996] 1 WLR 580; and the comments of Robert Walker LJ in Johnson v Valks [2000] 1 WLR 1502, 1506D). I note that Mr Ewing claims that PD7.7 is ultra vires in so far as it authorises a direction for service on the other parties. That argument was rejected by Davis J in another case, for reasons which seem to me compelling: Re Ewing (20.12.02). However, the issue does not arise directly for decision in this case, since no such direction was made by Forbes J.

In the light of these substantial changes to both forms of procedure, and the increased involvement allowed for the other parties, it is clear that Lord Donaldson’s simple solution (see para 10 above) is no longer sufficient for all cases. I shall return to that subject later in this judgment.

Before turning to the issues in the appeal, I need to set the scene in relation to the award of costs, both generally and in the context of judicial review.

Section 51 of the Supreme Court Act 1981 sets out the general jurisdiction of civil courts as to costs. Section 51(1) provides that, subject to any statutory provisions and rules of court, costs “shall be in the discretion of the court”; section 51(3) provides:

“The court shall have full power to determine by whom and to what extent the costs are to be paid.”

It is clear therefore that, subject to any applicable rules, the court’s discretion is very wide.

In the Mount Cook case (Mount Cook Land Limited v Westminster City Council [2003] EWCA Civ 1346; [2004] 2 P&CR 22), this court gave guidance as to the proper approach to the award of costs in judicial review cases, where the application fails at the permission stage. As has been seen, current judicial review procedure gives potentialdefendants and interested parties a direct role at the permission stage. In R (Leach) v Commissionerfor Local Administration [2001] EWHC Admin 445, Collins J had allowed an application by a defendant for the costs of filing the acknowledgement of service, required by rule 54.8. He considered that, since the new procedure imposed this requirement on the defendant, it was only fair that he should be awarded his costs if his resistance was successful at the permission stage.

In Mount Cook the court did not question the correctness of that decision, as applied to the acknowledgement of service. Auld LJ summarised its effect (para 76(1):

“The effect of Leach certainly in a case to which the Pre-Action Protocol applies and where a defendant or other party has complied with it, is that a successful defendant or other party at the permission stage who has filed an acknowledgement of service pursuant to CPR54.8 should generally recover the costs of doing so from the claimant, whether or not he attends any permission hearing.”

He proposed (paras 74-75) that CPR 54.8 should be looked at by the Civil Procedure Rule Committee, with a view to providing “appropriate machinery” for claiming costs of contesting the claim. As I understand it, the court proceeded on the basis that the costs of complying with the Protocol as such would not be the subject of any such order, but that a failure to comply might be relevant to later orders (see para 65). The principal issue in Mount Cook was whether the same approach should be extended to the costs of appearing at an oral hearing at the permission stage. The court held that, in the light of paragraph 8.6 of the Practice Direction (see 14 above), such an award should not be the norm, but should be made only in “exceptional circumstances” (para 72), of which it gave examples (para 76).

In line with these authorities RBL’s claim for costs in this case was limited to the costs of the acknowledgement of service. In principle, there could be no answer to that claim, as respects the judicial review proceedings. The only issue is whether such an order could properly be made against Mr Ewing, in view of his special status under section 42.

Against that background, I turn to the issues in the present appeal. The points raised by Mr Ewing, and expanded at some length in his written submissions, are that the judge was wrong to order costs against him: either in the section 42 proceedings, because no direction had been made for attendance of other parties; or in the judicial review proceedings, because he was not and could not have been a party to the proceedings, and there was no respondent’s notice seeking costs against him as a non-party.

I would agree with him that the order could not be supported under section 42 alone. It is true that, since a section 42 application is a “proceeding”, there appears to be jurisdiction under section 51 to award the costs of resisting such an application in a proper case, for example after a hearing directed by the judge. However, in the present case the costs in issue do not arise from the section 42 procedure, or any direction made under it. They relate to the acknowledgement of service, the requirement for which arises solely under the judicial review procedure. Accordingly, if the award against Mr Ewing is to be upheld, it must be as an incident to the judicial review proceedings.

I am unable to agree, however, with the second part of Mr Ewing’s submission. There was some debate before us as to whether, as regards Mr Ewing, the judicial review proceedings were to be regarded as a “nullity”, to which he could not therefore be a “party”. We were referred in that context to R v Darlington BC ex p Association of Darlington Taxi Owners (No2) [1995] COD 128, in which Auld J made an order for costs against the members of the Association, even though he had found that the Association was not a legal person capable of bringing judicial review proceedings. He said:

“The fact that I have found on the application to set aside that the Associations were not legal persons and that, therefore, the proceedings had to be set aside because they were not properly constituted, does not render all that went before a nullity or deprive them of the character of “proceedings” for the purpose of the RSC…”

He referred to Carl Zeiss Siftung v Rayner & Keeler Ltd (No 2) [1965] Ch 596, 669, where the Court of Appeal, in spite of having held that the plaintiff had not been competent to bring the action, regarded itself as having jurisdiction to make an award of costs against the plaintiff’s solicitors.

If it were necessary to decide the point, I would see much force in the approach taken by Auld J. It is given added weight, in the present context, by the considerations that the prohibition under section 42 is imposed, not by the Act itself, but by the order of the court; and that it is treated by the CPR as a procedural matter (under CPR Part 3 – Case Management). However, I prefer not to express a concluded a view on a point which may be of significance in other cases. In the present case, in my view, it does not matter whether or not technically Mr Ewing is treated as a “party” to the proceedings. He was the “real party”, and that is sufficient.

That is made clear by Dymocks Franchise Systems (NSW) Pty Ltd v Todd[2004] UKPC 39, [2004] 1 WLR 2807. Lord Brown in the Privy Council summarised the applicable principles for awards against non-parties, in terms which are equally applicable in domestic law (para [25]). While the power to award costs against a non-party should be exercised only in “exceptional” cases, that means –

“… no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense.The ultimate question in any such ‘exceptional’ case is whether in all the circumstances it is just to make the order.”

A costs order will not be made against –

“…pure funders who have no personal interest in the litigation, who do not stand to benefit from it, and not funding it as a matter of business, and in no way seek to control its course.”

On the other hand:

“Where… the non-party not merely funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party’s costs. The non-party in these cases is not so much facilitating access to justice by the party funded as himself gaining access to justice for his own purposes. He himself is ‘the real party’ to the litigation… Nor, indeed, is it necessary that the non-party be the ‘only real party” to the litigation… provided that he is ‘a real party in… very important and critical respects’.” (emphasis added)

Even if the judicial review proceedings were treated as effective only in respect of Mr Hammerton, it is clear from his own submissions to the judge that Mr Ewing was the main instigator. In the words of Lord Brown, he was using Mr Hammerton as a means of “gaining access to justice for his own purposes”, and was therefore a “real party” for the purposes of costs.

In the unusual context of this case, I do not see any merit in Mr Ewing’s suggestion that the point is not open to this court, in the absence of a respondent’s notice to that effect. It is true that legal issues were not analysed in detail before the judge. However, in deciding the merits of the application the judge took a robust and common sense view, as he was entitled to do. In effect he held that, having chosen to start proceedings without having gained permission under section 42, Mr Ewing must accept the consequences. Whether as a party or a non-party, he was directly responsible for the form in which the claim was launched, and for any resulting confusion. I see no basis to interfere with the exercise of the judge’s discretion.

Although that is enough to dispose of the appeal, it may be helpful to offer some further comments by way of guidance in future cases

The Practice Direction relating to vexatious litigants is clearly designed to give the judge a wide discretion to tailor the procedure to the requirements of the particular case. In many cases it will be apparent from the papers whether the application is wholly unmeritorious, or on the other hand it raises a genuine case for which permission should be given. In others the judge may wish for further help from the applicant, either by way of written evidence or an oral hearing of the applicant alone. Often such a hearing may appear to the judge the simplest way of assessing the genuineness of the applicant’s case. However, that should not necessarily involve the other parties. Since one of the objects of the procedure is to protect other parties from unnecessary costs in vexatious cases, the judge should think carefully before directing service of the application notice on other parties, or inviting their attendance at a hearing. He may bear in mind that under the present rules, his grant of permission is not necessarily final; if something has gone wrong (for example, if the court has been misled by the applicant), other parties can apply to set aside the grant of permission (PD7.9).

Judicial review poses particular problems in this context for a number of reasons: in particular –

The problems in the present case seem to have arisen, first, from the confusing way in which the claim form was drafted by Mr Ewing, and, secondly, from the failure of the court office to draw a clear distinction between the two forms of proceeding. For future cases of this kind (which I hope would be unusual), I would offer the following guidance:

Finally under this heading, I should say something about standing. We have not needed to hear argument on this point, although I have read the section of Mr Ewing’s submissions dealing with it. However, I would wish to emphasise that, in a section 42 case, the power to refuse permission for lack of “sufficient interest” can in my view be an important weapon in the court’s armoury. The section 42 permission procedure is designed to ensure that a vexatious litigant is not denied his right of access to the court to pursue his own genuine legal grievances, not to set himself up as a public champion. The court should be careful to ensure that it is not abused. Furthermore, if the vexatious litigant has no sufficient interest in his own right, he does not improve his position by joining forces with a competent litigant with equally little interest, or by giving themselves a grand title.

I do not criticise Ouseley J, at the stage when he was dealing with the matter, for preferring not to take up time on standing issues. It is also true that restrictions on standing in judicial review cases have been relaxed considerably by more recent case-law. For example, local residents, or representative neighbourhood bodies, may be allowed standing to challenge planning decisions affecting their area, even though they have no direct legal interest in the site. Where the issue is of regional or national interest, the net may be cast even wider.

In this case, as I have already observed, there was nothing in the claim form or supporting evidence to suggest that Mr Ewing or Mr Hammerton had any connection with this site or this development, nor any other special interest distinct from that of the public at large. Nor was any reason given to think that these buildings in Weston-super-Mare were of such national significance that their fate was a proper concern of a London heritage campaigning group (even treating the “Euston Trust” at face value). As I have said, the issue of standing does not arise for decision. However, it should be made clear that a vexatious litigant whose evidence shows such a tenuous connection with the subject matter of the proposed judicial review should not be surprised if his application under section 42 is refused on that ground alone.

Finally, I should add a brief comment on the function of “summaries of grounds”, at the permission stage, and the application to them of Mount Cook principles.

While I do not of course question the principles established by that decision, they must not be applied in a way which seriously impedes the right of citizens to access to justice, particularly when seeking to protect their environment (see the postscript of the judgment of this court in R (Burkett) v Hammersmith and Fulham LBC [2004] EWCA Civ1342 at [74] – [80]). A parallel may also be drawn with R v Secretary of State for Trade andIndustry, on the application of Corner House Research [2005] EWCA Civ 192; [2005] 1 WLR 2600 (dealing with applications for protective costs orders); where the court laid down guideline figures, and commented on the need for interested parties where possible to “make common cause”.

The considerations which may apply in responding to the application for permission will vary enormously from case to case. For example, where the subject-matter is in essence a commercial dispute between rival developers, different considerations may apply. In the ordinary case, however, the court must be particularly careful to ensure that the costs falling on the judicial review claimant are not disproportionately inflated by the involvement of the other parties at the permission stage.

Neither the rules nor the practice direction expand on what is meant by a “summary” of grounds. However, the “summary” required under this rule must be contrasted with the “detailed grounds for contesting the claim” and the supporting “written evidence”, which are required following the grant of permission (CPR54.14). In construing the rule, it is necessary also to have regard to its purpose, and place in the procedural scheme. If the parties have complied with the Protocol, they should be familiar with the general issues between them. The purpose of the “summary of grounds” is not to provide the basis for full argument of the substantive merits, but rather (as explained in para 24 of the Bowman report: see para 15 above) to assist the judge in deciding whether to grant permission, and if so on what terms. If a party’s position is sufficiently apparent from the Protocol response, it may be appropriate simply to refer to that letter in the Acknowledgement of Service. In other cases it will be helpful to draw attention to any “knock-out points” or procedural bars, or the practical or financial consequences for other parties (which may, for example, be relevant to directions for expedition). As the Bowman report advised, it should be possible to do what is required without incurring “substantial expense at this stage”.

The present case illustrates the risks. There were five potential parties to be considered: two public authorities whose decisions were under attack, and three interested parties who had commercial interests in the development. Between them they had generated some fifty pages by way of Summaries of Grounds attached to Acknowledgements of Service. In four cases they were settled by counsel. In two cases we have Schedules of Costs, amounting to £6,400 (RBL) and £10,754 (Pegasus). The council’s response seems to me a model of what is required by way of a “summary”, making all the necessary points in 2 ½ pages. Although it has not been necessary to analyse the others in detail, it is not clear to me that they added anything of substance which would have materially assisted a judge at the permission stage.

Before Ouseley J, only RBL was represented and there is no indication that he had any regard to the other applications for costs which had been made in writing. However, Mr Pugh-Smith has appeared before us on behalf of Pegasus, to register his complaint that his application for costs appears to have been ignored by the Administrative Court Office, in spite of more than one reminder. This issue is not formally before us for a decision. If there has been some failing by the Administrative Court, he should make an appropriate application in that court. I would comment, however, that, while the judge was entitled to make an award in favour of RBL, subject to detailed assessment, it has not been shown to us that there was any reason why separate representation at this stage was necessary for the other two interested parties so as to justify a separate award of costs.

Finally, I would repeat the request made by this court in Mount Cook that an opportunity should be found as soon as possible to introduce a specific rule or practice direction governing the procedure for applications for costs at the permission stage, and the principles to be applied. It would be helpful if at the same time there could be clarification of what is required by way of “summary of grounds”, and if thought might also be given to whether it is necessary to impose the same requirement on all parties for a summary of grounds at the acknowledgement stage. It may be thought sufficient to impose such a requirement on the defendant, leaving other parties free to submit comments if they wish to so.

In any event, it is important that the procedure should not itself add unnecessarily to the costs. Pending (and without prejudice to) the consideration of the Rules Committee, I would suggest the following:

For the reasons explained earlier in this judgment, I would dismiss the appeal.

I agree

I also agree.

From what we have seen in this case, the purpose of the requirement contained in CPR 54.8(a)(i) seems to have been completely misunderstood by the advisers to the two Interested Parties who appeared before us. This is not the occasion for the preparation of an elaborate formal document. If the claimant has followed the pre-action protocol, he will have set out in his protocol letter the details of the matter he is challenging, a brief summary of the facts, an explanation why the decision is contended to be wrong, and the details of the remedy that is being sought (see standard letter before claim in Annex A to the Pre-Action Protocol for Judicial Review, items 4, 5 and 6). He will also have sent a copy of his letter to all interested parties, for their information (see protocol, para 11).

The defendant for his part will have responded by setting out the details of the matter being challenged (providing a fuller explanation of the decision, where appropriate) and by stating whether the issue in question is conceded in part or in full, or will be contested (standard response to letter before claim, items 4 and 5). He, too, will also have to send a copy of his response to all interested parties (standard response item 6 and protocol, para 17).

Against this background, the defendants’ and the interested parties’ advisers will not normally have to go to much trouble (beyond copying for the court’s benefit the exchange of letters at the protocol stage) in identifying the outline of their grounds of defence for the purposes envisaged by the Bowman report. If they wish to incur greater expense in preparing a document that is more elaborate than the rules require at this stage, they should not expect to recover the extra expense from a claimant whose application is dismissed at the permission stage, since they will be doing more than the rules require of them at that stage. The “detailed grounds for contesting the claim”, which are required by CPR 54.14(1) (and mentioned in CPR 54.9(1)(b)(ii)) are likely to require a more substantial document to be prepared than the “summary of grounds” which is all that is required at the permission stage.

Needless to say, if the claimant skips the Pre-Action Protocol stage, he must expect to put his opponents to greater expense in preparing the summary of their grounds for contesting the claim, and this may be reflected in the greater order for costs that is made against him if permission is refused.