Ramblers' Association v Coventry City Council

THE DEPUTY JUDGE: For the reasons given in the judgment I hand down, these consolidated actions are dismissed. Thank you for your written submissions on costs and permission to appeal.

I refer first to costs. Mr Bird, you refer in your written submissions to the defendant's statement of costs, dated 13 February 2008, I do not appear to have a copy of that. Do you have a statement of the claimant's costs?

MISS CRAIL: We do.

THE DEPUTY JUDGE: Mr Bird, can I just ask you this, in the last sentence on the last page of your submissions, at paragraph 11, on the terms of the order relating to statement of costs, is this sentence correctly worded, "The defendants do not accept the costs as set out in its statement of costs"?

MR BIRD: Sorry, it is not. It is the claimant's statement of costs. My apologies.

THE DEPUTY JUDGE: Is there anything further either of you wish to say on costs?

MISS CRAIL: I have just a couple of points to add to the document your Lordship has already seen. Firstly, as a matter of principle, we maintain that at the very least the claimant should not pay any of the defendant's costs prior to the making of the second order. We would further ask your Lordship to order that the defendant pay at least some of the claimant's costs prior to that date. My Lord, there is a point made by Mr Bird, I think, in two paragraphs of his submissions on costs. He suggests that had we written a pre-action protocol letter before the first action was commenced, the whole matter could have been sorted out by effectively the accelerated making of the second order.

In my submission that is quite unrealistic a suggestion for the following reasons: firstly, your Lordship will recall that it took the defendant six months after the issue of the first action to acknowledge that anything whatsoever was amiss with the first order, or the erection of the gates. The first acknowledgment was in August and the proceedings were issued in February. That is a six-month period when there was no acknowledgment whatsoever that there had been any failing on its part. Secondly, it took another three months from the acknowledgment in August to realise that something needed to be done to actually make the second order. The notion that the proposal to do something to rectify it, and the actual implementation of the erection by making the further order, could have been done within the six-week period allowed by the statute for applying to quash an order, is wholly unrealistic.

Section 129D(2) allows six weeks from the making of an order for it to be challenged by proceedings in the High Court. If advantage is not taken within that six-week period, there is no jurisdiction in the court to extend that period. If anything is to be done by way of court proceedings to challenge it, it had to be done within that six weeks. There is no time to lose effectively.

The other time constraint your Lordship should bear in mind is that in the second order if a variation order is made that takes time. There is a minimum of 28 days under the regulations to be allowed between the advertisement of notice of intention to make it, and the making of it. By the time one has faxed in the reports to Committee, and so on, your Lordship, of course, is aware that it takes several months for these things to be done. It is, in our submission, just unrealistic to say we could have achieved, by writing a pre-action protocol letter, the making of a second order within that six-week period, or, bearing in mind the length of time the defendant took to accept that there was anything wrong, that it could have been done in anything less than six months.

THE DEPUTY JUDGE: Is not the reality of the matter, the principal substantive issues in these actions are 3,4,5 and 6, that your clients would have continued with these proceedings, in any event? The procedural matters are very interesting and of importance, but the substantive issue is the making of the order and the extent of the order.

MISS CRAIL: One very important aspect of the making of the order was the fact, as your Lordship will recall, it extended to a length of footpath which effectively rendered another footpath.

THE DEPUTY JUDGE: That it is said was a mistake from the outset.

MISS CRAIL: That is right. Something had to be done about it.

THE DEPUTY JUDGE: It did not require two days in this court.

MISS CRAIL: If proceedings had not been issued, and we are going back to the beginning, something had to be done about it. The defendant took six months to even acknowledge. Your Lordship may find it surprising that it was never intended to be included. It took six months for the defendant to realise that. The claimant had a point about that. In respect of that, my Lord, if nothing else, we continue to maintain that these proceedings were entirely justified because of a length of footpath that was not intended to be included, and had a serious effect on the adjoining footpath network, had been legally closed to public use. Something had to be done about that and we would have pursued that and been entitled to pursue it in respect of all the other grounds. That by itself, we say, we would have pursued in proceedings.

It has been said that could be done by way of partial quashing. It could but there would still have had to be proceedings within which the court has jurisdiction to make a quashing order. The defendant could have said, "We see what you mean. We never meant to include this. We will consent to a partial quashing", but they never did that.

THE DEPUTY JUDGE: When you were given notice of intention to make the second order on 14 August you still proceeded, when the second order was made you still proceeded and when the explanation was given you still proceeded.

MISS CRAIL: That is true, but in respect of the costs of the proceedings one can draw a line at 14 August. Of course, we were not sent, at that stage, a copy of a proposed order. We were not told in the letter of 14 August what variations were proposed. We were never told until we saw my learned friend's skeleton argument what power they were relying upon in some respects to vary an order. The 14 August was a very preliminary indication that some variation of the order would be made. It certainly does not give any detail. If one looks at 14 August letter it does not give any detail of what was to be made. For the purpose of the proceedings between 14 August and the making of the second order, it is unlikely there would have been any substantial costs in the proceedings incurred on either side.

As a matter of fact, the costs would have been the legal advice which was tendered to the defendant as to how to go about putting the matter right. There cannot be any justice in my client funding the defendant, and getting advise about how to put right the admitted failings in January.

THE DEPUTY JUDGE: The court is discouraged from making a costs order that leads to further litigation and leads to the further incurring of costs and time and expense. What do you say are the costs up to the making of the second order?

MISS CRAIL: We have difficulty about that because neither party has provided a chronological statement. That does put your Lordship in some difficulty. There are two ways of dealing with that. One is for your Lordship to make an order as a matter of principle just by reference to a date, or leave the matter to detailed assessment or agreement. Alternatively your Lordship will have to do the best thing your Lordship can.

THE DEPUTY JUDGE: I would like some assistance to do the best I can. To leave it to a further date will just lead to further argument and costs.

MISS CRAIL: In that case we would submit that the defendant should have no more than 50 per cent of the costs, doing the best we can.

MR BIRD: I do not think I need to say more than is said in writing. The proportion we had in mind, having regard to the issues in this case and your Lordship has made a point about the substance of the case, if you are going down the proportionate route rather than the entirety of the costs, is 90 per cent of our costs, which we think is a fair assessment. It would compensate the claimant for both the costs issued in the claim form and those parts of the evidence which address the defects, but no more.

THE DEPUTY JUDGE: Thank you very much.

THE DEPUTY JUDGE: First of all, I will deal with costs. The substantive issues in these actions were issues 3, 4, 5 and 6. The defendant succeeded on those issues, as they did on issues 1 and 2. As for issues 7 and 8, they arose in the main from the defects in the first order, which were corrected in the second order. The defendant gave notice to make the second order on 14 August 2007 and the order was made on 22 November 2007. The claimant has obtained none of the relief sought in these proceedings. Nevertheless, in my judgment the claimant ought not to pay all of the defendant's costs of both actions. Bearing in mind the defects in the first order, the date on which those defects were remedied in the second order, and the timing of the various arguments put forward on behalf of the defendant in relation to those matters, I have decided the claimant should pay 70 per cent of the defendant's costs. The costs are stated to be £16,749.50 of which 70 per cent I calculate at £11,724.65. I will say claimant to pay the defendant £11,725.

Now application for permission to appeal. Take it that I have read your submissions and those that I received this morning from Mr Bird in response. Is there anything further you would wish to say?

MISS CRAIL: Very little, my Lord. I think my learned friend says in his submissions that we have not set out in our note of issues the grounds of appeal against you Lordship's ruling.

THE DEPUTY JUDGE: I can see what the grounds are.

MISS CRAIL: You are fully aware of the arguments. You spent the best part of a day listening to them. This is clearly not the time or place to reargue the case. Your Lordship has only to be persuaded that our case on the identified issues, or some of them, is sufficiently arguable to have a realistic prospect of success in the Court of Appeal. Your Lordship may recall observing at the end of February the legal arguments had been very interesting.

THE DEPUTY JUDGE: They were.

MISS CRAIL: It may be implicit that while your Lordship clearly preferred the defendant's arguments on the outstanding issues in dispute, nonetheless the claimant's position was reasonably arguable on at least some of them. It does not, of course, follow from your Lordship's preferring my learned friend's arguments that there is no realistic prospect of the Court of Appeal preferring our arguments on some, at least, of these issues. We reiterate your Lordship would have a view on that. We reiterate they do raise questions from the statutory construction except the Tameside point, but even that we submit does raise a question of law as to how far, in the context of this new legislation, an authority has to go properly to be able to assess what level of restriction is appropriate and whether a blanket restriction is justified. We say even on that there is a point of principle involved. We would simply reiterate generally that there are public points of interest involved in the interpretation of this new legislation specifically, and, of course, in respect of section 111 of the Local Government Act and very general implications indeed essentially. I do not wish to add anything further.

THE DEPUTY JUDGE: Mr Bird, I do not need to trouble you. I recognise this is the first occasion on which gating orders have been considered by the court. It is clear from these proceedings that councils making these orders need to proceed with care. However, in my judgment none of the grounds put forward by Miss Crail raise a realistic prospect of success on appeal, or raise issues of general public interest warranting my granting permission to appeal. Accordingly, permission to appeal is refused.