Anderson & Ors, R (on the application of) v City of York Council

MR JUSTICE ELIAS: Today I was due to hear an application for judicial review. The claimants in this case (there are two of them) seek to quash two decisions of the defendant, the City of York Council, who gave planning permission for the redevelopment of the Barbican Centre in York. The claimants are in fact members of a loose support group for the Barbican known as Save the Barbican.

Before the substantive hearing began I heard an application, which I had been told was going to be made by Mr Nardell on behalf of the claimants, seeking an adjournment whilst the applicant pursues potential litigation against the Legal Services Commission. The reason is that, although certain legal aid was provided initially for this application, and in particular for the permission hearing, the Legal Services Commission have been maintaining that a contribution should be made from those who are interested in the outcome of these judicial review proceedings. Although it appears from the correspondence that the precise amount of the contribution may depend on further discussion, they are seeking in the region of 50 per cent.

The claimants submit that they are not entitled to do this under the relevant funding guidance, but the dispute has reached an impasse. It is in order to break that impasse that the claimants are seeking judicially to review the position adopted by the Legal Services Commission. Mr Nardell has submitted that until funding is in place he and his legal team are not in a position to take this substantive hearing further, and also the individual claimants do not have the requisite skill, understandably, to be able to pursue it in person. He therefore asks for an adjournment in order to give an opportunity for this impasse between the Legal Services Commission and the claimants to be resolved.

The original claim, it seemed to me, was that he was seeking an adjournment pending the resolution of the judicial review challenge. It was suggested, perhaps rather optimistically, in his skeleton argument that that might be concluded so as to allow the substantive hearing in this case to take place in October. But before me Mr Nardell has realistically accepted that if there were to be a full judicial review challenge going to a substantive hearing and a result in favour of the claimants, then, of course, there would have to be time to bring this case back on with skeleton arguments and so forth, and he accepted my observation that it would be very unlikely that this case could be heard until the New Year.

As a consequence he has put his case for the adjournment on a more limited basis. He submits that I should adjourn this case for somewhere between six or eight weeks, realistically perhaps eight weeks, fixing a vacation hearing date if necessary. The rationale for this is, he says, that in the interim proceedings can be initiated against the Legal Services Commission. He suggests that the initiation of the proceedings themselves may well cause the Legal Services Commission to change their stance without the need for any hearing as such. If they were to change that stance then it would be in the relatively near future, as a result of taking proceedings. And this case could go ahead then in eight weeks or so. Steps have already been taken I am told, I think yesterday in fact, to seek funding from the Legal Services Commission to fund the judicial review application against that very organisation.

Mr Nardell submits that the Legal Services Commission has adopted an unrealistic position which is plainly at odds with its own funding rules. He says that the matter may not have got beyond the particular officer dealing with the claim, and that if there is an internal review then he contends that there is every chance that the Legal Services Commission will change its stance without the need for any substantive hearing.

I am not in a position to assess the strength of that judicial review claim, and, of course, I have heard no representations from the Legal Services Commission itself, but I assume in Mr Nardell's favour that it is a properly arguable and not a fanciful claim with a realistic prospect of success. But the justification for the delay here is not so much the strength of the claim, though plainly that will have some relevance, but rather the possibility that the Legal Services Commission may change its stance under the fire of the proceedings now being invoked against it.

As I said, and Mr Nardell now accepts, if the Legal Services Commission were to maintain its stance in the face of the legal challenge, even if foolishly so, then it would not be right to adjourn this hearing until the outcome of that challenge. It is perhaps fairer to say that he did not formally abandon the submission that the adjournment could be until the full judicial review had been determined, but it was put, if I may put it this way, very sotto voce and it was not sustained in any significant way.

Mr Nardell's strongest point is this. The claimants have permission to bring the judicial review proceedings. He says, in effect, that if I do not adjourn now then they are simply not in a position to pursue the case. The application raises, he says, issues of some importance. The principal issue is whether the council are justified in dispensing with the need to obtain an environmental impact assessment. That is a matter, he submits, of considerable public importance and there is a matter of public interest involved in having it considered by the Court. He also contends that the consequences of any adverse delay for the council and the third party would be minimal. There has already been a significant time from when the planning permission was granted, on September 21st, until now, a period getting on for nine months, and some further delay ought not to result in any significant prejudice. Indeed, he contended that there would be no prejudice. I do not think that can be right for reasons I will return to in a moment.

The defendant, represented by Mr Boyle, and the third party developers, represented by Mr Forsdick, object to any adjournment being allowed at this stage. They made their submissions. I will deal with them together, although they made separate submissions to me. Their submissions can be considered under four heads. First, they say it has been plain for almost a year that the Legal Services Commission were insisting on a significant contribution from those involved in the Save Our Barbican Group. It was incumbent, they say, for the solicitors to sort matters out before this hearing because they knew that without proper funding the case could not go ahead. Although they threatened proceedings, they did not pursue them, not even once the date of his hearing had been fixed in April.

Second, they say that there is a real and continuing prejudice, both to the council and to the third party, even if there should be a short delay of some eight weeks, and at this stage it would be highly prejudicial.

Third, they submit that the correspondence makes it clear that in any event there cannot be a very strong prospect of the LSC changing its stance even following the initiation of judicial review proceedings. They submit that so far the Legal Services Commission has adopted a clear and unambiguous stance, even in the face of a challenge for judicial review and even when they were told that the claimants may have to abandon their case if the matter were not to be resolved in their favour.

Finally, observations were made about the strength of the case by Mr Forsdick. He pointed out that the original, and certainly a significant if not the major, ground was that the council did not have enough information to be able properly to form a view that no environmental impact assessment was required, but that this was on a misapprehension of the material available and that it was not an argument that could now be advanced. Mr Nardell accepted, I think, that as originally framed that argument could not be advanced, but he says that in the light of the response he would now wish to focus the argument rather differently and make it a reasons challenge. In other words, there was an insufficient explanation at the time for the decision taken by the council.

It does seem to me that there is some significance in the fact that the first ground is not sustainable as originally advanced, but in the circumstances I do not give that appreciable weight in exercising the discretion which I now have to do.

It is material to have regard to the chronology. The council first resolved to grant planning permission on 22nd April 2004. The solicitors, Irwin Mitchell, were consulted by the Save Our Barbican Group in June 2004, and an emergency certificate was granted to two potential claimants, one of whom is in fact one of the claimants now on the record, Mr Collins, and a Mrs Metcalfe, who is no longer a claimant.

On 4th August the LSC reversed the decision to grant emergency certificates on the basis that there were bodies or persons who might benefit from the proceedings who could reasonably be expected to bring or fund the case. Representations were made on 19th September by Mr Dickinson of the Save Our Barbican Group.

There were various pieces of correspondence between the Legal Services Commission and the solicitors, but it appears clear that at least by 16th December 2004, if not earlier, it was plain that the Legal Services Commission were contending that they would expect a 50 per cent contribution from members of the group. I put that rather loosely. On that date an e-mail had been sent to Mr Swift, of the Legal Services Commission, by Mr Lockley, the partner in Irwin Mitchell dealing with the matter, in which he expressed surprise that the issue of 50 per cent was being raised, he said, for the first time. In response Mr Swift commented that the question of suitable contributions had been raised in a number of previous e-mails and that therefore he could not understand Mr Lockley's surprise. One of the comments in the e-mail was effectively "With estimated costs of 25K Save Our Barbican or others will have to contribute £12,500".

On 18th January Irwin Mitchell wrote saying that the issue of contribution could be resolved once the question of permission was out of the way. I should say that the application for permission was in fact made on 21st December, which was the last day of the three month period. It is in fact submitted by the defendant and the third party that in view of that delay no relief should be granted in any event.

Originally the grounds in fact were not sufficiently full and relevant documents were not exhibited. There is an order from Sir Michael Harrison giving seven days to do that on 18th January. That date was not met, but, in any event, when permission was granted on 22nd February by Forbes J he extended the time to 1st February which covered the matter adequately.

The Legal Services Commission did respond to the letter of 18th January by making it clear that there would be no costs increase until there was confirmation of the 50 per cent private contribution.

On 28th February there was a letter from Mr Lockley to the Legal Services Commission. He raised a complaint about the way in which the funding issue had been handled by Mr Swift. He suggested that someone else might deal with the case. At the end he hinted that if matters were not satisfactorily resolved then judicial review proceedings might have to be taken. It was in fact put in this way:

There was a reply to that letter on 7th May from a Mr Monaghan. He commented, perhaps in a slightly cryptic way, amongst other things:

In fact the correspondence with the Legal Services Commission thereafter was conducted by Mr Monaghan rather than by Mr Swift.

In the course of that letter it was again made plain that it was the LSC's view that the local community could and should pay half the costs, but the letter added that the LSC would consider any alternative arrangements put forward.

On 7th April 2005 the solicitors wrote asking for the limitations to be lifted, but again, via a correspondence on 12th April, the LSC confirmed its position.

On 14th April the case was listed finally for a hearing today, 9th June.

There was further correspondence between the solicitors and the LSC. The formal threat to take judicial review proceedings was made on 28th May. There was a response on 6th June 2005, where the LSC has maintained its position, notwithstanding that it was made plain to it that it would not be possible for the case to go ahead if the matter were not resolved as a matter of great urgency. The Legal Services Commission in that letter was still seeking details of the financial circumstances of the individuals in the group. Mr Monaghan confirmed that the starting point remained at 50 per cent, indicating, of course, that there may be some negotiation from that figure.

It seems to me that there are a number of matters which are made clear from that correspondence. First, as I indicated, the issue of contribution, that is the dispute about contribution, has been known to exist at least since last December, if not earlier. Second, I think it is a fair inference that there has been some internal review of the original decision. That, I think, is the reasonable inference from Mr Monaghan's letter of 7th March in response to Mr Lockley's letter of 28th February. Mr Monaghan, as I have indicated, now deals with the correspondence rather than Mr Swift. I mention that because it seems to me that it is not consistent with Mr Nardell's submission that in effect all of this has been handled by a single officer without any review internally. He may be right, but it seems to me that that is not consistent with the natural reading of that letter.

Third, notwithstanding the fact that the date was fixed in April and the threats judicially to review the Commission were made at the end of February, albeit in somewhat muted terms, no judicial review proceedings were taken until yesterday. Mr Nardell submits that this was a perfectly proper approach by the solicitors. They chose what they hoped would be a better and potentially cheaper route of persuasion and argument through correspondence rather than the heavier stick of litigation. I accept that that is so, and difficult matters of judgment have to be exercised, and it is only with hindsight that one can say whether or not the right decision was taken. But, nevertheless, the decision to go down that route meant that the solicitors, instead of making use of the time between February and June to bring matters to a head, now seek eight weeks to do that. Had the steps been taken in April, when the date was fixed, which it is now suggested by Mr Nardell can be taken, then there would not be the need for this delay. As I say, I do not intend thereby to be critical of the approach adopted by the solicitor because there are these difficult issues of judgment and limited funding, but that is nonetheless a consequence of that choice.

I have seen witness statements from Mr Croft, who is the assistant director with responsibility for the Barbican site. He deals with the potential prejudice to the council if there are further delays at this stage. Similarly Mr Cossings, on behalf of the interested party, has outlined the difficulties that they will face.

I am not going to go into this in detail, suffice it to say that the capital received from the developer in one form or another, either by way of works or capital itself, has been in excess of £10 million. That fund is to build and refurbish the City's three swimming pools, but the ability to do that depends on the sum for which the development can be sold. I am told, and there is no evidence gainsaying this, that the property market in York is in decline, as I think it is around the country. In addition, there are construction costs rising at somewhere between 10 and 14 per cent per annum. So there is a squeeze, say the council, with the potential reduction in receipts and an additional cost in construction. It is true that the delay being proposed is for a couple of months, but it is by no means clear that the case could necessarily be heard early in the vacation, and in any event the council say that the public in York will suffer if there are further losses resulting from further delays.

The third party made similar observations. I was given some examples by Mr Forsdick of the way in which prices have fallen significantly in the last year. Although I suppose at some point they will bottom out, there is no reason to suppose that that will necessarily be now.

There are also additional costs to the council for insuring what are presently empty buildings.

I have to weigh up these various factors. I have to have regard to the fact that permission for judicial review has been granted and that in principle it is desirable that once that permission has been granted the case should go ahead. On the other hand, the courts have often said that in cases, planning in particular, it is incumbent on parties to act swiftly and that delays, as everyone recognises, are likely to be prejudicial. Some delays are inevitable in the judicial review process and to some extent they will be built into the risks that developers take in matters of this kind.

The additional delay of the kind being relied upon now is of a different order. It seems to me that one can have no very great optimism that the Legal Services Commission will change its stance in the light of the correspondence that I have gone through. Of course I recognise that sometimes the issuing of proceedings can have a magical effect on otherwise potentially intransigent defendants, but it does seem to be optimistic to think that the Legal Services Commission will change its mind given the stance it has adopted so far.

As against that, I am satisfied that there would be a real prejudice suffered by the council and the third party from any greater delay than is really necessary in this case. It may be that the delay in taking proceedings itself would have weighed as a factor in granting relief even if this application had succeeded, but I have heard no evidence about it and I would put it no higher than that it is a possibility. But, in any event, it does seem to me that this question of funding was always a matter of great importance, always a matter of great uncertainty, at least since the end of last year, and I do think that it could have been resolved at a earlier stage.

In all the circumstances, and I accept it is never easy effectively to prevent claimants taking a claim for which they have been granted permission for judicial review, but I think I ought to exercise my discretion here in favour of refusing the adjournment, notwithstanding Mr Nardell's eloquent submissions to the contrary.