Hertsmere Borough Council, R (on the application of) v First Secretary of State & Anor

MR JUSTICE FORBES: Do I understand therefore that your instructions are to agree to an order in the terms of the draft consent order with paragraph 3 of the schedule being amended to delete the words of the second half of the final sentence of paragraph 3 of the schedule to delete the words after --

MR MASTERS: After the full stop at "Luton."

MR JUSTICE FORBES: Yes.

MR MASTERS: I am grateful, my Lord, I hope you did not mind me interrupting you to say that I do not think you need to say it again but --

MR JUSTICE FORBES: All right, thank you.

MR MASTERS: Sorry, I am being, if I may say so, impulsive, forgive me.

MR JUSTICE FORBES: Right, so that just leaves the question of costs. Is that still a matter which is the subject of non agreement?

MR MASTERS: My Lord, it is, you have heard my submissions. You have heard my view. My Lord, I would invite you to make no order in this case, there is nothing exceptional about it and my clients ought to have the certainty of the time periods involved.

MR JUSTICE FORBES: Thank you. Although it is submitted on behalf of the second defendant that I should make the usual order, as it is often called, in relation to the application that the second defendant pay the claimant's costs, there are two possible approaches to that matter, as indicated by the decision of the Court of Appeal in Parr v Smith [1995] 2 All E.R. page 1031. Thus, in the judgment of Staughton LJ at page 1041 to 1042, reference was made to the possible use of regulation 127 as a means of ensuring that the successful claimant's ability to recover costs against the legally assisted defendant is not restricted to 6 years following the determination (which is the effect of the "normal order").

I am satisfied that it is open to the claimant to apply for an order in those terms. The claimant in this case is a public authority. I am told that the reason for making the application is the importance of ensuring that all proper efforts are made to recover costs and that there are circumstances which could arise in a case such as this, where restricting the public authority to the usual 6 years (that would be the effect of the normal order) would not be appropriate.

It seems to me that there is force in that submission and accordingly I am satisfied that it is appropriate to make the order in the terms sought, but not for as extended a period of time as that suggested by Mr Jones. Accordingly, so far as the question of the claimant's costs of this application against the second defendant is concerned, the order that I make is that the second defendant is to pay the claimant's costs of these proceedings, but that there shall be a postponement of the determination of the amount of the second defendant's liability for costs, pursuant to regulation 127 of the Civil Legal Aid General Regulations -- is it the 1989 regulations still, Mr Jones?

MR JONES: I believe so, my Lord.

MR MASTERS: My Lord, while he is doing that -- my Lord, I wonder -- it is quite clear that the only relevance for costs is after 30th October.

MR JONES: Yes, I accept that, my Lord. Yes, the Treasury have offered, as part of their agreement, to pay up to and including 30th October. So I would not be looking for any costs before that date against Mr Master's clients.

MR JUSTICE FORBES: Thank you.

MR MASTERS: It would be rather hard, my Lord.

MR JUSTICE FORBES: No, that is all right. Up to and including 30th October?

MR JONES: My Lord, that is right, yes.

MR JUSTICE FORBES: Can you just confirm that it is the 1989 Regulations?

MR JONES: My Lord, I was just looking to see.

MR JUSTICE FORBES: I will say pursuant to regulation 127 of the 1989 Regulations, or its successor, such costs to be limited to the costs incurred after 30th October 2003. I think that deals with your point Mr Masters.

Can I ask, Mr Jones, that you draw up the order, make sure you insert the correct regulations and, of course, make sure that Mr Masters is happy with it before you submit it to the court and incorporate into it the amendment to paragraph 3 of the schedule that is the basis upon which the terms of the order are agreed?

MR JONES: Yes, my Lord.

MR JUSTICE FORBES: So far as the limitation of the liability for costs of the second defendant are concerned, I think the formula I have suggested, namely, that your entitlement to costs are limited to those incurred after 30th October, meets the bill.

MR JONES: My Lord, I believe it does.

MR JUSTICE FORBES: Is there anything else?

MR MASTERS: May I thank your Lordship for the 10 minutes which we had to sort it out, that was very helpful.

MR JUSTICE FORBES: Thank you very much.

MR JONES: My Lord, I do apologise, we were all just checking our note afterwards and although we suspect what it may be -- but we do not believe your Lordship indicated the periods for which it would be suspended?

MR JUSTICE FORBES: You are quite right, I did not. It was to be postponed for a period of 3 years.

MR JONES: I am grateful to you.