Horton v Secretary of State for Communities and Local Government & Anor

THE DEPUTY JUDGE: There are two ancillary matters in respect of which I have received written submissions from the parties. The first is an application by the claimant for permission to appeal. I refuse the claimant's application for permission to appeal; I am not persuaded in respect of either of the two issues raised, namely, first, whether the Council's letter of 13th January 2010 was a screening opinion within the Environmental Impact Assessment Regulations and secondly, whether the letter was inadequately reasoned that the claimant has a real prospect of success, nor that there is any other compelling reason why the appeal should be heard.

There is then an application for costs by the third defendant, who was the developer in this matter. The claim for costs is in relation to the limited area which arose from the preparation of witness statements, and again I have received written submissions from the parties. Having considered those submissions, I am not persuaded that it is appropriate for the third defendants to have their costs of preparing the written statements in relation to ground 2 of the application which in the event was not pursued by the claimant at the hearing. It is well established that the developer's costs in these cases are rarely justified. Although it is correct to say that the witness statements in question were not referred to by any party in the hearing before me, the reality is that had the ground been pursued then further time and cost would have resulted in circumstances in which the third defendant would not have been entitled to its costs of the hearing.

The effect of the decision not to proceed, in reality, was to reduce the overall time and costs which otherwise would have been spent. I am not persuaded that this case is one of those rare ones where it is appropriate to depart from the usual rule that the developer is not entitled to costs. I therefore refuse the third defendant's application for costs.

In those circumstances I make an order in the following terms: the application is dismissed; Mrs Horton, the claimant, is to pay the Secretary of State's costs of the application subject to detailed assessment, if not agreed and subject to a determination of her liability to pay such costs pursuant to section 11 of the Access to Justice Act 1999. The third defendant's application for an order that the claimant pays the costs of the witness statements filed by them is refused. A detailed Community Legal Service Funding assessment is to be carried out. The claimant's application for permission to appeal is refused. That concludes the hearing of this matter this morning.