Gavin, R (on the application of) v Haringey & Anor

MR JUSTICE RICHARDS: The question of what order as to costs should be made in the interests of doing justice in this case, or perhaps I should say what order would cause least injustice, is as difficult as any of the questions I had to resolve in the judgment itself.

I direct myself, of course, by reference to the matters set out in CPR Rule 44.3, bearing in mind that the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but that one should also have regard to all the circumstances, including the conduct of the parties; whether a party has succeeded on part of his case, if not wholly successful; and also the ultimate need to ensure that the solution adopted is one that meets the overall justice of the case.

In this case the claimant has succeeded to the extent of obtaining declaratory relief, that the defendant authority was in breach of the provisions referred to in my judgment. I accept that relief in those terms was not expressly mentioned in the claim form. It fell within the rubric of "such other relief as the court thinks fit". The matter was put in those terms only at the hearing before me.

Nonetheless, the underlying legal issues were raised from the start. The reason why a declaration was granted was to reflect the importance of those underlying legal issues, and to mark the fact that there lay behind this claim unlawful conduct by the defendant authority in failing to comply with the notification requirements and failing to comply with the EIA requirements. Those were serious breaches, as I indicated in my judgment.

Moreover, those breaches were not initially accepted by the authority. In the acknowledgement of service there is a less than wholehearted acceptance of the breach of the notification requirements. The matter was only expressed unequivocally in the defendant authority's witness statement of late July. That witness statement was also the first occasion when it was accepted that there had been a failure to consider the need for an EIA.

In those circumstances, I take the view that the claimant was fully entitled to bring this claim alleging unlawful conduct on the part of the defendant authority, and to pursue that claim through to the point where the unlawful conduct was admitted by the council. That includes the pursuit of the claim through the permission stage and subsequently until the substantive errors were established by way of admissions or concessions on the part of the authority.

I have made clear in my judgment that in my view no criticism attaches to the claimant for the way in which he investigated and brought this case. In my judgment, he has achieved a degree of success, and on an important matter, albeit that it is only a partial success. It is only a partial success because the main objective at the end of the day was to have the planning permission quashed. The main issues therefore ventilated at the substantive hearing and considered in my judgment were the issues of undue delay and whether relief should be granted or withheld having regard to hardship, prejudice and detriment to good administration. On that issue it seems to me the claimant has lost and the defendant authority has won. The authority has won by reference both to hardship or prejudice and detriment to good administration, albeit that in the event the former was a sufficient basis for my withholding relief in the exercise of my discretion.

Looking at the way in which the case has proceeded overall, it seems to me that one could justify a solution whereby the claimant was awarded costs as against the defendant up to a point and the defendant was awarded costs against the claimant thereafter. But I take the view that the justice of the case is better met as between claimant and defendant by the simpler approach of making no order as to costs as between those parties. That is the order I propose to make.

I have to take into account the order made by Elias J at the permission hearing, where he ordered:

There has been some discussion before me as to the precise meaning of that order. I think that the most important point is that it contemplates an award of costs to the claimant in respect of the permission hearing, if, but only if, the claimant was successful overall. What is success in this context is, in my judgment, best measured by the order as to costs that I think it appropriate to make overall. Since, as I have indicated, that order is no order as to costs, I conclude that the claimant has neither succeeded nor failed so far as is material to the implementation of the order by Elias J, and that it is therefore right to record that the "no order" that I make in relation to the case as a whole applies as much to the costs of the permission hearing as to the other costs in the case.

There is one other point I should mention. There was an order by Collins J that the costs of the stay application be paid by the defendant to the claimant. That is the order of 6th October 2003. Nothing that I say affects that order.

As to the position relating to the interested party, I accept that the interested party did have a separate issue on which it was entitled to be heard, in that the case on hardship or prejudice related to the position of the interested party. The financial consequences to the interested party if the planning permission were quashed were very large indeed, as explained in my judgment. I do not think that one can say that the matter could have been dealt with sufficiently by an affidavit. I accept that representation before me was appropriate, though I would note in passing that the costs set out in the schedule that I have seen as representing costs said to have actually been incurred go far beyond those that I would have regarded as reasonable in any event.

However, the question arises whether an order should be made in favour of the interested party, as is sought on its behalf. As to that, there are other factors to be taken into account. Of particular importance is my finding that in carrying out the works that were the subject of the planning permission, the interested party acted unlawfully by reason of its being in breach of the preconditions contained in that planning permission. As I explained in my judgment, that was a factor that weighed against it in the balancing exercise relevant to discretion with regard to relief, though it was not a decisive factor or one to which I attributed the same weight as the claimant contended for. It is nonetheless, in my judgment, a factor to which I am also entitled to have regard as working against the interested party in relation to the question of costs. Moreover, in considering that question I do regard it as important to look at the overall justice of the case and the fact that serious breaches on the part of the defendant lay behind it, breaches which, as I have already said, made it entirely reasonable for the claimant to bring this claim.

Looking at the circumstances overall, I do not think that it would be just to saddle the claimant with any part of the costs of the interested party. I therefore propose that in relation to the interested party too there should be no order as to costs.

Thus the overall conclusion I reach is that, subject to the costs awarded in respect of the stay application, each party will bear its own costs.

MR STEPHENSON: I am obliged, my Lord. Before I leave may I thank for the court in its indulgence in sitting at 2 o'clock instead of 10.30.

MR JUSTICE RICHARDS: Not at all.

MISS WARD: My Lord, may I take the opportunity to seek permission to appeal two points.

MR JUSTICE RICHARDS: Which two points are these?

MISS WARD: Paragraph 69, my Lord. The first point of appeal. Paragraph 69 of your Lordship's judgment.

MR JUSTICE RICHARDS: Let me just get that. Are you seeking to appeal the conclusion I reached or is it that you are seeking to appeal bits of the analysis that led that conclusion?

MISS WARD: My Lord --

MR JUSTICE RICHARDS: I put it that way because I think it is important. You may disagree with aspects of the reasoning, but ultimately are you saying that the exercise of discretion was flawed?

MISS WARD: My Lord, I am seeking to argue, with respect to paragraph 69, that it was an error of principle not to accept the distinction between a substantial developer with professional advisers as being different from a private individual acting for himself. This my Lord I would argue is an error of principle, particularly in the context of the way it was applicable to the exercise of discretion.

MR JUSTICE RICHARDS: And the other one?

MISS WARD: The second one, my Lord, was that it was wrong in law to hold that a local authority does not make an individual judgment with regard to posting a site notice or to serve a notice to an adjoining occupier of land. These were the two alternatives laid down by Article 8(4) of the Town and Country Planning General Development Order.

MR JUSTICE RICHARDS: But I did not even reach a conclusion on that issue. I expressed views, but I said it was not necessary to reach a conclusion.

MISS WARD: I am content, my Lord, to --

MR JUSTICE RICHARDS: Let us make sure I am with you as to the point you are raising. It is what I deal with in paragraph 29, is it?

MISS WARD: Indeed.

MR JUSTICE RICHARDS: Paragraph 27, where I put forward my substantial doubts but then paragraph 29 when I deal with it on the basis on which it was argued before me.

MISS WARD: Indeed. I can confine my request for permission --

MR JUSTICE RICHARDS: Paragraph 30 must preclude any argument of the sort you advance on that issue because I say I do not consider that the decision is strictly necessary.

MISS WARD: I accept that, my Lord.

MR JUSTICE RICHARDS: Thank you very much. Are those the two points?

MISS WARD: Yes, those were the two.

MR JUSTICE RICHARDS: Permission to appeal is refused. The decision resulted from an exercise of discretion. In my view, there is no real prospect of a successful appeal in respect of that exercise of discretion. (Pause)

I have endorsed the form accordingly. Thank you all very much. Perhaps you can communicate my thanks to those who are not present but were present for the hearing.