Thomas & Anor v Albutt

This is a claim by Mr and Mrs Thomas against a barrister, Mr Albutt, for damages for alleged negligence by him in connection with advice he allegedly gave, or failed to give, when he was advising Mr and Mrs Thomas in connection with an application, made in February 2009, by the Usk Valley Conservation Group (“the UVCG”), seeking a judicial review of the decision of the local planning authority, the Brecon Beacons National Park Authority (“the NPA”), made in June 2005, to grant planning permission in relation to the Claimants’ land. The UVCG sought an order quashing the planning permission and the NPA did not seek to defend the lawfulness of its decision to grant the permission. Mr and Mrs Thomas as interested parties resisted the application made by the UVCG but ultimately the planning permission was quashed by Ouseley J on 27 January 2010.

Mr Jourdan QC appeared on behalf of Mr and Mrs Thomas and Mr Elkington QC and Mr Smiley appeared on behalf of Mr Albutt. The case was very well argued, with great thoroughness on both sides, and I am grateful to counsel for the considerable assistance which they gave me.

In due course, I will have to examine the facts of this claim in detail. However, it is possible to summarise what is alleged as follows:

Mr and Mrs Thomas gave evidence. On the Claimants’ side, I also heard evidence from Mrs Thomas’ daughter, Charlotte Evans, and from two solicitors (Mr Davies and Mrs O’Connor) at Robert Davies Partnership LLP (“RDP”), who had advised Mr and Mrs Thomas in relation to the planning permission and the judicial review and who instructed Mr Albutt. The Claimants also called other witnesses who had more limited evidence to give. They were Mr Gwillim, Mr Williams, Mr Lewis, Mr Lilley and Ms Ruth Thomas (a friend of Mrs Thomas but not a relation). I also had a hearsay statement from a Mr Squire which was admitted into evidence.

The evidence of Mr and Mrs Thomas, Mr Davies and Mrs O’Connor is potentially of great importance in this case and I need to form an assessment of the reliability of their evidence. Each of these witnesses was challenged in cross-examination to a greater or lesser extent. The other witnesses called by the Claimants are of less overall significance and there was only limited, if any, challenge to their evidence. When Mr Jourdan began his closing speech, he submitted:

“None of the witnesses had a good recollection of the details of the events of 2009. All of them were attempting a reconstruction based on shreds and patches of actual recollection coupled with huge amount of reconstruction, often inaccurate. The best guide to what happened is the contemporaneous documents. Where oral evidence fits with and explains the contemporaneous documents it may be helpful in shedding light on what happened. Where it does not fit, then it is unreliable and should be rejected.”

In this way, counsel for Mr and Mrs Thomas submitted to me that I should treat as unreliable their evidence and the evidence of Mrs O’Connor and Mr Davies where it did not fit with the contemporaneous documents. There is a very large amount of contemporaneous material. However, that material has some deficiencies. That comment particularly applies to the advice which Mr Albutt gave in conference on four occasions. Each of those conferences lasted several hours and the notes taken of what was said are not exhaustive and are sometimes open to interpretation. Mr Albutt did not advise in writing in connection with the judicial review claim and he was not asked to approve a note of any conference. I heard a significant amount of oral evidence as to what was discussed in these conferences but yet, as I have just explained, counsel for Mr and Mrs Thomas does not ask me to accept the evidence of Mr and Mrs Thomas, Mrs O’Connor and Mr Davies (who was present for part only of one conference) if it is not supported by a contemporaneous document.

My own assessment of Mr and Mrs Thomas is that their evidence as to what happened in this case is indeed unreliable. They were more concerned to say what appeared to suit their case at the present time rather than to attempt to give factually accurate evidence. Indeed, this was apparent by comparing the evidence they gave in the judicial review proceedings with their evidence at this trial. The evidence was not the same and it was obvious that they gave certain evidence in the judicial review proceedings which was either true then or which they judged would be helpful to them then and they gave different evidence at this trial because the evidence they had previously given was no longer considered to be helpful to them. They also gave evidence as to what they would have done if they had been given different advice by Mr Albutt in the judicial review proceedings. Of course, evidence of that kind is different from evidence of historic fact and it is often genuinely difficult for a witness to say what he would have done in an event which did not actually happen. However, Mr and Mrs Thomas gave evidence as to what they would have done which I found incredible. For example, Mrs Thomas told me that Mr Albutt had guaranteed that she would win the judicial review proceedings and if he had told her that there was a 1% chance of failure, then she would have immediately given up any attempt to resist judicial review.

Mrs O’Connor was a very important witness as she was closely involved in the relevant events concerning Mr Albutt. In her witness statement, she obviously gave an account of what happened which, quite properly, relied heavily on the contemporaneous documents. However, she added elaborations and comments on what appears in the documents not all of which were reliable. She frankly accepted in her evidence that, at the relevant time in 2008/2009, she was inexperienced in relation to the matters with which she was dealing in this case. At the time, she had one year’s experience post qualification as a solicitor. Whilst she dealt with litigation at RDP, she had not previously dealt with an application for judicial review and she had no experience of planning law or practice. She made notes of the conferences with Mr Albutt which she attended but it is clear from comparing her notes with the notes of others, that her notes are not complete. This may be for the wholly understandable reason that she was participating in the discussion at the conference and that impaired her ability to note everything which Mr Albutt said. I also think that her inexperience and a certain lack of understanding also contributed to her failure to note everything which Mr Albutt said. When cross-examined, she appeared to me to give her evidence in a more fair and measured way. There are certainly some parts of her evidence which fill in gaps in the documents which I am prepared to accept.

As to Mr Davies, I consider that some of his evidence was unreliable. Mr Davies was in a somewhat invidious position. Some of the time, he plainly wished to join in his erstwhile clients’ criticism of Mr Albutt but at other times he had to guard against the fact that allegations of negligence made against Mr Albutt might in time be made, with even greater force, against him. The background to that comment is that Mr and Mrs Thomas and Mr Davies’ firm have agreed a standstill agreement, suspending the running of time for limitation purposes, in relation to any claim for damages for professional negligence which might be brought against that firm. I am quite clear that Mr Davies told me that certain things were said which I am sure never were said.

I heard evidence from Mr Albutt, Mr Atherton and Mr Porten QC.

Mr Albutt prepared a detailed witness statement and was thoroughly cross-examined. As is the case with the Claimants’ witnesses, Mr Albutt’s evidence sometimes goes beyond what is in the contemporaneous documents and I have to assess the reliability of that evidence. Mr Albutt had obviously examined the voluminous contemporaneous documents with great care. I consider that he genuinely attempted to recall matters which did not appear clearly from the documents. However, I realistically recognise that it will sometimes have been difficult for him to recall what precisely he said when it is obvious in the present context what he ought to have said on a particular point. It is therefore possible that he will have unwittingly turned a recognition of what he should have said into a belief that that is what he would have said and into evidence that that is what he actually did say. Indeed, there is one particular example of this in relation to the evidence he gave as to what he said to Mrs O’Connor in response to her email to him of 11 September 2009. I do not accept his evidence on that point.

Mr Atherton prepared a detailed witness statement although Mr Jourdan told me, before cross-examining Mr Atherton, that he would submit that Mr Atherton’s evidence was of more marginal relevance as compared with the evidence of Mr Albutt. I consider that much of Mr Atherton’s evidence was reasonably reliable. I also agree that his evidence is not of the same degree of importance as, say, the evidence of Mrs O’Connor or Mr Albutt. Mr Atherton’s evidence contained many passages which were extremely critical of Mr and Mrs Thomas. It was put to Mr Atherton that he was far too ready to condemn the conduct of third parties generally and, in particular, Mr and Mrs Thomas. It was apparent from the contemporaneous documents that Mr Atherton frequently reacted with vehemence and condemnation to matters which scarcely deserved that response. I consider that some things which Mr and Mrs Thomas did were provocative and unhelpful and they were open to criticism on that account. In relation to many of the particular criticisms put forward by Mr Atherton, it is not necessary for me to form a view but I will comment that it seemed to me that Mr Atherton was less than fair in his assessment of their behaviour.

As to Mr Porten QC, he led Mr Albutt at the substantive hearing of the application for judicial review before Ouseley J. Mr Porten had been instructed to act only shortly before that hearing. Accordingly, he only had fairly limited evidence to give on the matters in dispute in this case. He frankly acknowledged that did not have a detailed recollection of all of the events in which he had been involved but there was no real challenge to his evidence.

In connection with the claim to damages, the parties had instructed expert valuers who prepared reports. In the event, the experts were able to agree on the values which might be needed for the purpose of an assessment of damages and they were not called to give evidence.

In connection with the claim to damages, there was an issue as to the prospects which the Claimants might have had if they had applied, in around 2009, for planning permission for what was called “the Hooker proposal”. Each side instructed a planning consultant and expert reports were exchanged. I heard evidence from each of the planning consultants and I will comment upon their evidence later in this judgment.

In order to understand the narrative which follows in relation to the grant of the planning permission in this case, and the difficulties which ensued, and in relation to the various challenges which were made to that planning permission, it is necessary to refer, in summary form, to some matters of planning law.

Under section 57 of the Town and Country Planning Act 1990 (“the TCPA 1990”), planning permission is required for the carrying out of any development of land. “Development” is defined in section 55 and means the carrying out of building, engineering, mining or other operations in, on, over or under land (often referred to as “operational development”) or the making of any material change in the use of any buildings or other land.

Sections 59 to 61 provide that a development order may grant planning permission. The Town and Country Planning (General Permitted Development) Order 1995 (“the GDPO”) does so. Among the developments for which the GDPO grants planning permission are:

In order to use land as a caravan site, normally a site licence is required under the 1960 Act. However, under schedule 1 paras. 2 to 10, there are exemptions. These include:

Under section 102 TCPA 1990, if, having regard to certain matters, it appears to a local authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity) that any use of land should be discontinued or that any conditions should be imposed on the continuance of a use of land; or that any buildings or works should be altered or removed, they may by order require the discontinuance of that use, or impose such conditions as may be specified in the order on the continuance of it, or require such steps as may be so specified to be taken for the alteration or removal of the buildings or works. A discontinuance order may grant permission for any development of the land to which the order relates. An order under section 102 does not take effect unless it is confirmed by, in Wales, the Welsh Ministers. If such an order is made, compensation is payable under section 115 to any person in respect of any damage in consequence of the order by depreciation of the value of an interest to which he is entitled in the land, or by being disturbed in his enjoyment of the land.

Section 106 authorises any person interested in land by agreement or otherwise to enter into “a planning obligation” restricting the development or use of the land in any specified way. A planning obligation is enforceable by the planning authority against the person entering into the obligation and against any person deriving title from that person.

Carrying out development without the required planning permission or failing to comply with any condition or limitation subject to which planning permission has been granted constitutes a “breach of planning control”: section 171A. A planning authority can take “enforcement action” by serving an enforcement notice under section 172, or, in the case of a breach of condition, a breach of condition notice under section 187A. Under section 171B, no enforcement action may be taken in respect of operational development after 4 years, or (subject to an immaterial exception) a material change of use after 10 years. An enforcement notice can be appealed, under section 174, on a number of grounds, including the ground that planning permission ought to be granted for the development. Where such an appeal is brought, the enforcement notice is of no effect pending the final determination or the withdrawal of the appeal: section 175(4).

Under the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, where an application is made for “EIA development”, planning permission must not be granted unless what is called “the environmental information” has been taken into account. The environmental information is the “environmental statement”, and subsequent representations and information. An EIA development is a “schedule 1 development” or a “schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location”. Schedule 1 is not relevant in the present case. A “schedule 2 development” means development of a description mentioned in Column 1 of the table in schedule 2 where either any part of that development is to be carried out in a “sensitive area” or any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development. A National Park is “sensitive area”. The table in schedule 2 includes as item 12(e) the description “Permanent camp sites and caravan sites” and the threshold “the area of the development exceeds 1 hectare”.

If an application is made for a schedule 2 development, then unless an environmental statement has been supplied or a “screening opinion” as to the likelihood of significant impacts has been sought, the planning authority must proceed to deal with the application as if it had received from the applicant a request for a screening opinion. A screening opinion is a written statement of the opinion of the relevant planning authority as to whether development is EIA development. If the authority says that it is, the applicant can challenge that decision by applying for a “screening direction”; in Wales this application is made to the Welsh Ministers. A screening direction is a direction made by the Welsh Ministers as to whether development is EIA development. The process required by the Regulations is mandatory and failure to comply will normally render a planning permission invalid: Berkeley v Secretary of State [2001] 2 AC 603.

Mr Thomas acquired Gilestone Farm in about 1991. His family had farmed in the Usk Valley for many years. Mr and Mrs Thomas lived at the farm with four of their five children.

From 2000 or 2001 onwards, Mr Thomas had been looking at diversification of the farm as it had sustained losses over a period of 8 years. Due to BSE the farm had lost a substantial sum of money. The collapse of the pig and arable industries caused further considerable financial losses. Foot and mouth disease in 2001 resulted in further losses.

In March 2005 a planning application (P20617) was made in relation to a part of the farm. The name of the applicant was given as “Mr Ian Ashton – Acorn Camping” and the agent was stated to be “A B Planning (Andrew Bevan).” The circumstances in which this application was made, and the planning permission later granted, became the subject of considerable controversy in the subsequent application for judicial review. The judge (Ouseley J) who determined the application for judicial review made detailed findings in his judgment as to the relevant facts in these respects and also made findings as to the legal consequences of those facts. I will refer to that judgment in detail later in this judgment. In reaching his findings, the judge did not accept everything which Mr Thomas had asserted in his evidence in the judicial review proceedings.

On 21 June 2005, the NPA granted planning permission in relation to a part of the farm. The grant of the permission was a substantial benefit for the Claimants. The planning consent permitted the operation of a substantial caravan park and campsite within an area of outstanding beauty in the Brecon Beacons National Park, with up to 50 caravans and 50 tents. The grant of the permission also increased the capital value of the Farm.

Until around February 2006, Mr and Mrs Thomas expected that they would enter into a lease with Acorn under which Acorn would operate a camp for tents on part of the land which was the subject of the permission. Mr and Mrs Thomas could then operate a caravan park on the remainder of the land. As matters turned out, Acorn withdrew from negotiations for a lease in around February 2006 and Mr and Mrs Thomas then proceeded to implement the planning permission both as regards the camp for tents and the caravan park.

Mr and Mrs Thomas needed to carry out certain works on the land in order to implement the planning permission to best advantage. In particular, they wished to erect two buildings on the Farm to provide toilets, showers, a shop, an office and other facilities. Initially, in September 2005, they were informed by Mr Eacock of the NPA that they did not require any further permission to erect those buildings. However, in December 2005, Mr Eacock advised them that permission would be required. In the light of Mr Eacock’s change of position, in December 2005, Mr and Mrs Thomas applied (P21299) for planning permission for certain buildings.

In January and February 2006, Mr and Mrs Thomas were granted a site licence for 50 caravans by Powys County Council and received confirmation from the NPA that the planning conditions attached to the Permission had been discharged. In early 2006 Mr and Mrs Thomas invested substantial sums in preparation for opening the caravan site, including:

Mr and Mrs Thomas opened the site on the bank holiday weekend at the end of May 2006. Mr Thomas’ evidence was that, by the end of May 2006, they had spent £238,353 since March 2005 in developing the caravan and camping park at the Farm (excluding legal, planning consultancy and accountancy fees). They had full occupancy on their opening weekend and in the weekends that followed.

The caravan park proved to be very popular. After the opening of the caravan site in May 2006, Mr and Mrs Thomas continued to make substantial investments in the site. In particular, Mr Thomas’ evidence was that between 1^st June and 31^st December 2006 they had spent a further £133,512 in relation to the caravan and camping park. Following completion of the works the site was listed by the Daily Telegraph as one of the top 50 sites in the UK.

The operation of the caravan park upset a large number of people. Some local residents formed the UVCG and they sought the advice of counsel. In a written opinion dated 28 June 2006, specialist planning counsel, Richard Glover, advised as follows:

Mr and Mrs Thomas became aware that local residents were seeking counsel’s opinion about getting the permission “set aside.” Ouseley J held in his judgment in the subsequent judicial review proceedings that Mr and Mrs Thomas were made aware in July and August 2006 that there were real doubts about the validity of the planning permission. The judge referred to comments made in July 2006 by Mr Eacock of the NPA to Mr and Mrs Thomas’ planning adviser, Mr Atherton and to a further comment made in August 2006 by a planning officer (Ms Lewis) to Mr Atherton that the planning permission was unlawful.

Mr and Mrs Thomas sought the advice of Mr Davies. His note of the advice he gave them on 8 August 2006 states as follows:

“I advised them that in my view judicial review would be impossible to get off the ground at this stage. Consent was June 2005 and the place had now been built.”

The Talybont-On-Usk Community Council lodged a complaint that the application for the permission had not been handled properly. That complaint was investigated. In a detailed response, the NPA denied that there had been any maladministration in the handling of the application for the Permission.

The NPA also took legal advice, and in or about September 2006 it received a written advice from counsel, Tina Douglass. Her advice was disclosed in the later judicial review proceedings on 15 July 2009. In her advice Ms Douglass stated that:

The NPA did not issue a notice of decision in relation to the application relating to the proposed buildings. On 9 August 2006, Mr and Mrs Thomas submitted an appeal against the NPA’s failure to decide that application.

The appeal in relation to the proposed buildings was opposed. On behalf of local residents and other interested parties RPS Planning filed a statement of objection dated 21 September 2006. Mr and Mrs Thomas disputed many of the assertions made in this statement of objection.

Significantly, the statement of objection:

On 4 September 2006, Mr Atherton, the planning consultant instructed by Mr and Mrs Thomas, wrote to the NPA seeking confirmation that the permission was valid or (if the NPA alleged it was not) the reasons why it was said to be invalid. The NPA replied to that letter on 28 November 2006 and made the unequivocal statement: “Planning Permission P20617 is valid.” The NPA also confirmed that all conditions precedent relating to the permission had been discharged.

In October 2006 Mr Atherton instructed Mr Albutt to advise Mr and Mrs Thomas in relation to various planning issues. On 11 December 2006 Mr Albutt attended the Farm. He toured the site and then advised Mr and Mrs Thomas in conference, together with Mr Atherton. In January 2007 Mr Albutt prepared a written advice, which he updated on 16 and 23 February 2007 in the light of further issues that he had been asked to consider.

Mr Elkington pointed out that Mr and Mrs Thomas do not allege in these proceedings that Mr Albutt acted negligently in any respect in relation to the conference in December 2006 or the written advices he prepared in January and February 2007. Mr Jourdan observed that these events were more than six years before the issue (on 15 February 2013) of the claim form in these proceedings. In the event, I was not invited to make any finding that Mr Albutt was open to criticism in relation to the advice he gave at this time.

The Claimants operated the site throughout the 2007 season. The site increased in popularity during 2007, bookings increased and there were repeat bookings. During 2007, the Claimants spent a further £126,971 in relation to the caravan and camping park. They purchased expensive grass cutting equipment, erected a children’s play area, purchased bicycles for campers to hire, constructed a nature trail and continued their planting and landscaping programme. They applied for an alcohol and entertainment licence on the site. The strength of opposition to the site was demonstrated by the fact that over 80 protestors attended the hearing of the application for the licence in August 2007. In the event, Mr and Mrs Thomas were granted an alcohol and entertainment licence, which further enhanced the site’s profitability.

As the popularity of the caravan and camping site increased, Mr and Mrs Thomas took the decision to scale back the farm business so that they could concentrate their time and effort on the caravan and camping site. Cattle and farm equipment were sold, and tenancies of rented farm land were surrendered.

In September 2007 the Claimants had discussions with the NPA about the possibility of submitting a fresh planning application, with a draft section 106 agreement, in order to embrace the overall requirements for the site and make the resulting permission workable and comprehensible. Those discussions were generally positive.

The Claimants commenced work on the construction of a permanent toilet and shower block, using their permitted development rights. That work was carried out over the winter of 2007/08, at a cost of over £200,000.

In January 2008 a review of the process which led to the grant of the permission was published. The review was prepared by Ms Julie James of Clarks Legal, and became known as the “James Report.” The report was highly critical of the process which led to the grant of the permission.

In the light of the James Report (or possibly a draft of the report), Mr Needham of the UVCG obtained further advice from counsel, Mr Jonathan Milner. In an e-mail advice (probably in January 2008, possibly on 20 January 2008) Mr Milner advised as follows:

In February 2008, Mr and Mrs Thomas had a further meeting with the NPA. However, in what Mr Thomas described as “a complete ‘u’ turn”, the NPA made clear that they had no intention of continuing any dialogue, and instead were taking advice on enforcement action. Mr Thomas later confirmed that he and Mrs Thomas were “absolutely devastated.”

On 4 March 2008, Mr Milner advised further. He advised that pressure should be applied to the NPA to persuade them to make a discontinuance order. The advice given by Mr Milner on these two occasions was later disclosed, in September 2009, in the course of the judicial review proceedings.

Despite the NPA's indication at the meeting in February 2008 that they were no longer willing to entertain any further dialogue and/or attempt to resolve the planning issues at Gilestone by way of a fresh application for a revised permission coupled with a section 106 agreement, Mr and Mrs Thomas instructed Mr Atherton to submit the planning application and draft section 106 agreement which they had previously discussed with the NPA (“the Atherton Application”). The application was submitted in July 2008. Mr Atherton’s advice was that the application would not be approved, nor be successful on appeal.

In response to the application the NPA stated, by letter dated 20 August 2008, that the proposed development would have a significant visual effect on the landscape, a detrimental effect on ecology in the area, the flora and fauna of the site and nearby site of special scientific interest (“SSSI”) and a possible effect on the neighbouring amenities. The NPA therefore requested an Environmental Impact Assessment (“EIA”). Mr Atherton’s view was that an EIA would “doom the application to fail.” He reiterated his view that he did not think the application had any prospect of success, even on appeal.

The Claimants operated the caravan park throughout the 2008 season. The new toilet and shower block was completed in June 2008. This enhanced the quality of the caravan and camping park at the Farm, and the rating of the park was increased to 5 Star. This led to increased bookings throughout the summer period. During 2008 the Claimants continued to scale back their farming business. By 2008 the income from the leisure park dominated the income from the farming enterprise. By the end of 2008 the Claimants’ bank borrowings exceeded £900,000. The value of the freehold of the Farm was shown in the accounts at only slightly higher, at £1.133m.

In the light of the contents of the James Report, a Mr Martin Hooker was appointed to act as a “critical friend” to advise the NPA on the best way forward. The UVCG remained extremely hostile to the caravan site at the Farm.

In August, September and October 2008 Mr Hooker prepared reports for the NPA (which became known as the First, Second and Third Hooker Reports respectively). Mr Hooker’s first report was a preliminary report. In his second report dated 23 September 2008, Mr Hooker identified a number of courses of action. In that report, Mr Hooker stated as follows:

“Validity.

This report is written on the basis that the consent referenced P20617 issued in June 2005 is probably valid, notwithstanding the maladministration involved in the processing of the application. The matter is well out of time for a successful application for a judicial review of the processes leading to the grant of consent. The landowners have proceeded to make significant investments in the belief that they enjoyed a valid consent. For all practical purposes, the consequences of any demonstration of invalidity would therefore appear to be similar to those entailed in the BBNPA seeking to regularize the current situation through the use of s.102: i.e. the payment of compensation, albeit that the legal processes needed to reach a settlement might be different.” (para. 1.2)

At this trial, no-one identified what Mr Hooker might have had in mind when referring to the possibility of compensation being payable following a “demonstration of invalidity”.

In paragraph 1.7 of the Second Hooker Report, Mr Hooker referred to the fact that there had been a flood from the River Usk on 5 September 2008 resulting in the areas that had been used for caravans and camping in the summer of 2008 being under water with some stored caravans actually in the floodwater.

In paragraph 3.4 of the Second Hooker Report, Mr Hooker discussed the option of a discontinuance order in relation to the site. He referred to the fact that compensation would be payable in that event and the amount of the compensation should be considered. At paragraph 3.6, Mr Hooker referred to the possibility of discontinuance coupled with a fresh consent and pointed out that this option would result in a smaller sum of compensation being payable.

At paragraphs 5, 6 and 7 of the Second Hooker Report, Mr Hooker discussed the possibility of a new consent with new planning conditions and an article 4 direction under the GPDO. The possible new consent was known at this trial as “the Hooker proposal”. The proposal involved limiting the area of the site and so that there would be tents only on one part of the site and caravans on the other. The number of caravans would be restricted to 50 and redundant pitches and roadway would be removed. The amenity buildings erected by Mr and Mrs Thomas could continue to be used. The shop and café which had been housed in visually intrusive marquees would be removed into farm buildings to be suitably converted for the purpose. The planning conditions would prevent caravan storage other than in the existing farm buildings. Mr Hooker also proposed a direction under article 4 of the GPDO removing any permitted development rights on other parts of the farm. Such a direction would require approval by the Welsh Assembly and would attract compensation (in addition to compensation for the reduced planning permission). The justification for the direction would be related to flood risk, landscape protection, noise control and the need to limit pressure on the village of Talybont.

In September 2008, it was proposed that Mrs O’Connor would instruct Mr Albutt to advise in conference. In connection with a possible conference, Mr Atherton sent Mr Albutt a link to the Second Hooker Report and Mr Albutt emailed Mr Atherton with the following comments:

“[the report] bears out our advice throughout namely that judicial review would not be an option. I notice that the authority accepts that the permission is valid but more on the grounds that it has been acted upon by the Thomases and they failed to make any challenge”.

Before it was voted upon by the NPA, Mr Hooker’s second report was withdrawn, and was replaced with a third report (dated 29 October 2008), in which Mr Hooker recommended that the NPA serve enforcement notices to secure compliance with the conditions attached to the Permission. The emphasis of the Third Report was quite different from that of the Second Report.

In paragraph 1.1 of the Third Report, Mr Hooker described the campsite as currently operating in an uncontrolled manner and as having expanded well beyond the restraints intended to be imposed by the permission granted in June 2005. On the question of the validity of that permission, Mr Hooker stated at paragraph 1.7:

“Validity.

This report is written on the basis that the consent referenced P20617 issued in June 2005 is now valid. Even if there were grounds for Judicial Review shortly after the permission was issued the matter is now out of time for a successful application for a Judicial Review of the processes leading to a grant of consent. The landowners have proceeded to make significant investments in the belief that they enjoyed a valid consent.”

In the Third Report, Mr Hooker did not (unlike in the Second Report) refer to the possibility of compensation being payable if the planning permission were declared invalid. It was clear that advice had been taken on the need to pay compensation in the event of a discontinuance order and Mr Hooker had been advised that the options for the NPA were “limited”. This was obviously because the NPA did not wish to expose itself to a liability to pay compensation in relation to a discontinuance order. Indeed, the possibility of a direction under article 4 of the GPDO was, for similar reasons, also regarded as inappropriate at the time of the report although it was something that might be considered again later. The advice as to the limited options available to the NPA led Mr Hooker to recommend enforcement action in relation to what he said were “clear breaches of planning control”.

On 7 November 2008, the NPA voted to adopt the recommendations made by Mr Hooker in the Third Report.

On 8 December 2008, M & A, solicitors for the UVCG, wrote a 28 page letter to the NPA. A copy of this letter was sent to RDP on behalf of Mr and Mrs Thomas. The letter was a Pre-Action Protocol Letter in relation to a threatened application for judicial review to be brought by the UVCG against the NPA. This letter challenged the NPA’s decision on 7 November 2008. Amongst the many matters asserted in that letter were the following:

The letter of 8 December 2008 required the NPA to take certain action including:

The assertion that the applicant for planning permission in March 2005 was “fictitious” was based on a letter from the managing director of Acorn Venture Limited (a Mr Gardiner) dated 10 November 2008 stating that Acorn was not involved in any planning application for Gilestone and had not paid any money in relation to the planning application fee and professional fees. The letter of 10 November 2008 from Mr Gardiner was not enclosed with the protocol letter of 8 December 2008.

On 11 December 2008, M & A, solicitors for the UVCG, wrote a four page letter to the NPA. A copy of this letter was sent to RDP on behalf of Mr and Mrs Thomas. The letter was a second Pre-Action Protocol Letter in relation to a threatened application for judicial review to be brought by the UVCG against the NPA. This letter challenged the NPA’s decision on 21 June 2005 to grant the planning permission. The second letter stated that the relevant facts were set out in the earlier letter of 8 December 2008 and repeated that the purported applicant for planning permission was not in fact applying for permission. It was said that the sole beneficiaries of the planning permission were Mr and Mrs Thomas who were fully aware of the application. The letter stated that the UVCG would apply for an extension of time to seek judicial review in relation to the planning permission on the grounds that there was good reason to extend time, Mr and Mrs Thomas would suffer no hardship or prejudice and an extension of time was in the public interest. In this context it was asserted that the UVCG did not know about the essential facts as to the proposed grounds for challenging the planning permission and that Mr and Mrs Thomas were aware that the application was false. The letter required the NPA to agree that the planning permission should be quashed and that no compensation would be payable to Mr and Mrs Thomas.

On 16 December 2008, Mrs O’Connor emailed Mr Albutt to ask him whether Mr and Mrs Thomas should submit a response to the two protocol letters. Mr Albutt advised on the same day that a response should be sent, although he had not yet seen the two letters.

On 17 December 2008, the NPA served seven enforcement notices on Mr and Mrs Thomas; this was in accordance with the NPA’s decision on 7 November 2008 to take enforcement action. Three of the notices related to the storage of caravans, two related to the provision of electricity and water connection points and two related to a marquee.

On 17 December 2008, Mrs O’Connor emailed Mr Albutt stating that she would like him to settle the response and she would send the relevant documents. On the same day, Mr Albutt telephoned Mrs O’Connor and she provided him with some of the background leading up to the letters of 8 and 11 December 2008. Mr Albutt’s immediate reaction was that the costs of the judicial review could be very large with at least a three day trial and leading counsel. He stated that Mr and Mrs Thomas would have to make a decision on how they wanted to proceed and whether to defend the judicial review or take a back seat; their decision would be affected by the actions of the NPA in response to the judicial review. Later, Mrs O’Connor emailed Mr Atherton to say that she would fix a conference with Mr Albutt to discuss tactics and how to proceed. On the same day, Mrs O’Connor spoke to Mr Thomas and passed on to him the advice she had received from Mr Albutt. Mr Thomas stated that he appreciated that the costs would be significant but he felt he had little or no choice as to what to do and he would try to get a fighting fund together.

On 18 December 2008, Mrs O’Connor had a long conversation with Rhiannon Edwards, the NPA’s solicitor, about the protocol letters. During that conversation, Ms Edwards suggested that the matter could be resolved by some form of mediation and that she did not want to put Mr and Mrs Thomas out of business.

On 19 December 2008, Mr Atherton emailed Mr Albutt asking him whether the reference in the protocol letters to the planning permission being “quashed” meant something different from discontinuance under section 102 of the TCPA 1990.

In December 2008, Mrs O’Connor sent written instructions to Mr Albutt. The enclosures were the planning permission, the James Report, the three Hooker reports, the two protocol letters and “other documentation”. The instructions briefly referred to the background to the planning application and the involvement of Mr Ashton of Acorn and of the planning consultant, Mr Bevan. The instructions stated that Mr and Mrs Thomas had paid the £240 planning application fee and made a further payment of £2,500 to Mr Bevan. The instructions stated that Mr and Mrs Thomas “are horrified by the suggestion of any improper behaviour and are understandably keen to rectify the suggestions made”. Mr Albutt was then “instructed to draft the response to the Pre-Action Protocol letters on behalf of Mr & Mrs Thomas”. There was no specific instruction to Mr Albutt to advise on the merits of the arguments in the protocol letters.

On 31 December 2008, Mr Atherton wrote to Mr Thomas in relation to the need to prepare an environmental statement in support of the Atherton Application for planning permission. He told Mr Thomas that the cost of the statement would run to many thousands of pounds and that a necessary flood consequences assessment would cost a similar amount. Mr Atherton stated that the money would be wasted because he did not consider the application had any prospects of success, even on appeal.

On 5 January 2009, the Dyfed Powys Police Fraud Squad wrote to the NPA stating that they were conducting an evaluation of allegations made in relation to the planning application submitted in March 2005. The matter had been brought to the attention of the police by the Chief Executive of the NPA.

On 6 January 2009, Mr Albutt advised in conference at RDP’s offices. The conference lasted from 1.30 to 6.30 pm. When the conference started those present were Mr Albutt, Mrs O’Connor, Mr and Mrs Thomas and Mr Atherton. Mr Davies joined the conference at around 5.30 pm. I was provided with the following notes of that conference:

The notes are of varying length; Mrs O’Connor’s note is the longest. However, her note does not contain certain remarks which are recorded in other notes. Mr Albutt was not sent copies of these notes at the time and was not asked to approve a note of the conference. Mr Albutt was not asked to advise in writing following the conference. Each of Mr Albutt, Mrs O’Connor, Mrs Thomas and Mr Atherton gave evidence about what was said at this conference. Mr Davies did not make a note but gave evidence as to what was said during the part of the conference which he attended. With the assistance of the notes and the oral evidence I make the following findings as to what was said at this conference, so far as it is now relevant:

I also find that both Mr and Mrs Thomas told Mr Albutt at this conference that they had not been involved prior to the grant of the permission. Mrs O’Connor noted that they were “hammering home that they had nothing to do with the planning”. They did say that they paid the application fee and a fee to Mr Bevan (after the event). As will be seen, Ouseley J’s findings as to their involvement were significantly different from the instructions which Mr and Mrs Thomas gave Mr Albutt at this conference. The judge held that Mr and Mrs Thomas were effectively joint applicants for the planning permission and they bore some share of the responsibility for the mistakes and misinformation which was given by them or through their agent, Mr Bevan.

There was then a detailed discussion as to the enforcement notices which had been served. Mr and Mrs Thomas were advised that they could appeal in relation to some of the notices but others were not worth appealing. Both Mr Albutt and Mr Atherton advised Mr and Mrs Thomas to “keep their heads down” over the next year; this was a reference to them complying with the planning permission.

Mr Davies told me that when he joined the conference at around 5.30 pm, he was given a summary of the advice which had earlier been given. The attendance notes do not refer to this summary. I think it is likely that Mr Davies would have been told something of what had been discussed before his arrival. It is likely that the summary was brief and not complete. Beyond that, I am not able to make findings as to what Mr Davies was told when he joined the conference.

Mr Albutt told me that it appeared to him at this conference that Mr and Mrs Thomas were very determined to fight the claims of the UVCG. I accept that that is how matters appeared and I also find that they were in fact determined to fight the claims. That fits with their behaviour both before and after this conference although I recognise that there were times when Mr and Mrs Thomas felt like giving up the fight in view of the extreme hostility they encountered from the local residents.

In addition to making specific findings as to what was said at the conference on the 6 January 2009, I will record my findings as to the overall sense of the conference and the context in which advice was being sought and given, as follows:

By letters dated 8 January 2009, the NPA responded to the two judicial review protocol letters. It did not agree to the relief sought in relation to the decision made on 7 November 2008. Conversely, in relation to the challenge to the grant of the planning permission, the NPA stated that it would not advance a positive case one way or the other and that it was not minded to raise an objection to the UVCG’s request for an extension of time to seek judicial review.

On 8 January 2009, Mrs Thomas wrote to Mr Davies. She said that when she left the conference with Mr Albutt she felt “more confused than when we went in”. She asked Mr Davies:

“Can you honestly say things will be OK in the long term, when our fate lies in the hands of so many people, lawyers, barristers, judges, Welsh Assembly, Nat. Parks etc.”

On 8 January 2009, Mr Atherton emailed Mrs O’Connor (with a copy to Mr Albutt) stating that he had appealed in relation to six of the seven enforcement notices. One ground of appeal asserted that caravan storage had been going on for at least the last ten years. Mr Atherton stressed the need for evidence to support this assertion. He identified the categories of evidence which would be needed; one category was accounts detailing income received. Mr Thomas later provided some material to support the assertion of ten years use for storage but no evidence of accounts or of income from storage. Later in January 2009, Mr Atherton advised Mr Thomas in very strong terms that the appeal was hopeless and it was withdrawn.

On 9 January 2009, M&A, the solicitors for the UVCG, supplied to RDP a copy of Mr Gardiner’s letter of 10 November 2008. On the same day, Mrs O’Connor forwarded the letter to Mr Albutt. On 12 January 2009, Mr Albutt emailed Mrs O’Connor seeking further information about Acorn from Mr and Mrs Thomas. Also on 12 January 2009, Mrs O’Connor sent to Mr Albutt the NPA’s letters of response to the judicial review protocol letters.

On 13 January 2009, Mrs O’Connor met Mr Thomas to discuss the availability of evidence to support the assertion that there had been ten years previous use of the farm for storing caravans. She advised Mr Thomas that the suggested evidence was not good enough at which he became extremely upset and said that losing the ability to store caravans would cripple his business and that there was no point continuing if he did not have the ability to store caravans.

On 14 January 2009, Mr Albutt emailed Mrs O’Connor. He referred to the NPA’s stance in relation to the proposed judicial review of the planning permission and stated that a heavy burden rested on Mr and Mrs Thomas to deal with that application for judicial review.

On 15 January 2009, Mr Atherton sent to Mr Albutt a letter dated 3 February 2006 from Mrs Thomas to Mr Gledhill (chief executive of the NPA) and the members of planning committee. Mr Atherton had apparently found this letter when working through papers that had been provided to him. The letter referred to the planning history and described the application in March 2005 as “our application” and the planning consultant who made that application as “our consultant”.

On 16 January 2009, Mr Atherton wrote to Mr Thomas in connection with the enforcement notice appeals. He complained of having been misled by Mr Thomas as to the history of the matter. He stated that Mr Thomas had ignored his earlier advice to keep a low profile and that the use of the site had been substantially intensified. He stated that Mr Thomas faced “a very real threat to the approved caravan and camp site, which should not be underestimated …”. A copy of this letter was sent to Mr Albutt.

Mrs O’Connor contacted Mr Bevan, who (on 20 and 21 January 2009) confirmed that Acorn had paid his invoices. He said he attended meetings when both Mr Ashton and Mr Thomas were present. This information was passed to Mr Albutt who (on 23 January 2009) said he was surprised that Mr Bevan had stated that he had met Mr Ashton and Mr Thomas on a number of occasions because this was “somewhat different from what we were told in conference”. On 30 January 2009, Mr Albutt emailed Mrs O’Connor to record that he still had no information as to who made the planning application and who instructed whom.

On 4 February 2009, Mrs O’Connor and Mr Davies met Mr Bevan who expressed amazement at the allegation that Acorn was not the applicant for the planning permission. He said that he had more than enough evidence to counter that allegation. He had been introduced to Acorn by Mr and Mrs Thomas who told him they had someone interested in a joint venture. That someone was Acorn and the venture involved setting up a campsite at Gilestone. Mr Bevan agreed to act on behalf of Acorn in applying for planning permission. His instructions came from Acorn but he kept Mr and Mrs Thomas informed. There was a letter of engagement signed by Mr Ashton and countersigned by Mr Thomas. Mr Bevan had been instructed by “both parties”. Mr and Mrs Thomas had paid the planning application fee and also paid a fee to Azimuth Land Surveys, which had prepared a flood consequences assessment submitted in support of both the 2005 application and the barns application. Mr Bevan's fees had been paid by Acorn.

Immediately afterwards, Mr Davies and Mrs O’Connor went to see Mr and Mrs Thomas at the farm. They explained what Mr Bevan had said. They told Mr and Mrs Thomas that Mr Albutt was “happy with everything bar Andrew Bevan”. This seemed to be a reference to the fact that Mr Albutt had told RDP that he was waiting for evidence of Mr Bevan’s involvement before he could settle a response to the protocol letters.

On 5 February 2009, Mrs O’Connor sent two emails to Mr Albutt. The first related to the information provided by Mr Bevan including the fact that Mr Ashton and Mr Thomas had both signed the letter of instruction to Mr Bevan. The second email attached a letter from Mackley Davies Associates Ltd, landscape architects, who had prepared a report in connection with the 2005 application; they stated that their fee invoice was addressed to Acorn. Mr Albutt replied by email on 6 February 2009. He asked for clear instructions from Mr and Mrs Thomas as to why Mr Bevan’s engagement letter was not only from Ashton/Acorn but also from Mr Thomas which, Mr Albutt said, contradicted his earlier instructions. He said “… all we need is one document that shows a direct relationship between Acorn Adventure Limited and the Gilestone site. It should be so easy to provide”. In the event, Mr Albutt did not settle a response to the judicial review protocol letters before the UVCG issued its claim form on 5 February 2009.

The UVCG issued its claim form for judicial review on 5 February 2009. The respondent was the NPA. Mr and Mrs Thomas were named as interested parties. The claim form sought judicial review of the decision of the NPA to grant planning permission and the decisions of the NPA not to make an order for discontinuance but instead to take enforcement action. The claim form sought an extension of time in relation to the challenge to the planning permission.

The judicial review claim form was supported by a Statement of Facts and Grounds setting out the UVCG’s case. This statement was 33 pages long and was accompanied by a bundle of 23 documents which included the James Report, the three Hooker reports, the two protocol letters, NPA’s response to the protocol letters and the letter from Mr Gardiner of 10 November 2008.

In summary, the points made by the UVCG in support of the challenge to the planning permission were:

The grounds put forward for seeking an extension of time were:

On 8 February 2009, the Countryside Council for Wales, which had been consulted by the NPA as to the content to be included in a scoping opinion in relation to an environmental statement in support of the Atherton Application, wrote to the NPA with the Council’s views on that subject. The Council suggested that the scoping opinion should identify a large number of specific matters.

On 16 February 2009, Mrs O’Connor sent the claim form to Mr Albutt and instructed him to draft an acknowledgment of service (“AOS”) on behalf of Mr and Mrs Thomas. She did not specifically ask him to advise on the merits of the claim. The AOS was due by late February or possibly the beginning of March 2009.

On 19 February 2009, Mr Thomas wrote to Mr Davies in relation to the enforcement appeals. He stated that without the revenue from the bar and café, they had no chance of keeping the bank happy never mind paying the legal fees.

On 19 February 2009, Mrs O’Connor emailed Mr Albutt stating that she was drafting a statement for Mr Davies and would go through the claim form with Mr and Mrs Thomas. She mentioned certain paragraphs that she would ask them to deal with. She did not mention the paragraph which I have referred to at paragraph 101(3) above. Mr Albutt emailed a reply stating: “That’s fine”. On the same day, she emailed to Mr Albutt a draft statement of Mr Davies. The draft statement recorded or purported to record the information provided by Mr Bevan at the meeting on 4 February 2009. Also on 19 February 2009, Mrs O’Connor had a telephone conference involving Mr Davies, Mr Albutt and Mr Atherton. The conference lasted more than one hour. There is no note of what was said and I was not given any evidence about this conference.

On 20 February 2009, Mrs O’Connor sent Mr Albutt a three page statement recording Mr and Mrs Thomas’s response as to the circumstances in which the application was made. They said that Mr Thomas had signed Mr Bevan’s client care letter and had attended meetings but only as interested land owners. They denied any wrongdoing in relation to the application.

On 23 February 2009, Mr Albutt emailed Mrs O’Connor to say that he had drafted an AOS over the weekend as a matter of urgency and that they needed to speak about it. Later that day, Mrs O’Connor telephoned Mr Albutt on his mobile telephone. She made a contemporaneous handwritten note of the conversation and she later prepared a typed note of the conversation. At the trial, Mrs O’Connor agreed that she could no longer remember the precise words used by Mr Albutt. According to her notes, Mr Albutt explained that he was at a train station waiting for a train to Swansea. Mr Albutt said that he had sent Mrs O’Connor a draft AOS and he wanted her to look at it and possibly amend it once they have the documents from Mr Bevan. He said he wanted the RPS statement of objection to the planning appeal in relation to the buildings to be exhibited to Mr Davies’ witness statement. He also said that the Bevan documents would also need to be exhibited to that statement. Mrs O’Connor’s notes recorded:

“He advised however that obviously there may be things that come out in the Bevan documentation which causes problems and I would have to be extremely wary.”

Mrs O’Connor’s notes also recorded the following:

“Ian is extremely confident in respect of the Judicial Review application to quash the planning permission. If Mr and Mrs Thomas are innocent there is absolutely no way that the Court will quash the permission awarded 4 years ago.”

The note also records that Mr Albutt suggested that it might be appropriate to fall in line with the NPA’s stance in relation to the challenge to the decision not to seek a discontinuance of the permitted use. Mrs O’Connor agreed to forward the Bevan documents to Mr Albutt and they would discuss them later in the week.

Mrs O’Connor was cross-examined about this conversation on 23 February 2009 and, in particular, in relation to the use of the words “no way”. Her evidence was that Mr Albutt was very confident that if Mr and Mrs Thomas were innocent, the permission would not be quashed. There does not appear to have been any further description of what would amount to “innocence” for this purpose. Mrs O’Connor did not take the words “no way” literally. She explained that she was a litigator and all litigation involved what she described as “litigation risk”. She did not understand Mr Albutt to say that there was no litigation risk.

Mr Albutt gave evidence that he did not use the words recorded in the note. He could not recall the conversation but he said that he would not have used those words. I find that he did use those words. I find that Mrs O’Connor would not otherwise have recorded them in her handwritten note. I also find that the overall sense of the conversation was that Mr Albutt said that he was very confident that, if Mr and Mrs Thomas were “innocent” of what was being alleged as regards the misleading of the NPA, it was unlikely that the permission would be quashed. Both Mrs O’Connor and Mr Albutt were aware that the outcome of these proceedings, as with litigation generally, could not be guaranteed even if Mr and Mrs Thomas were “innocent”. Further, there were important qualifications on this expression of view in that what was meant by “innocence” was not discussed or defined and, further, Mr Albutt had not seen Mr Bevan’s documents as to which there might be a need to be “extremely wary”. I also hold that in so far as Mr Albutt’s remarks were not clear and precise, this was attributable to the fact that the purpose of the conversation was to discuss the mechanics of completing the AOS and Mr Davies’ witness statement, that Mr Albutt was commenting on how he saw the case rather than giving a detailed advice on the merits and the conversation was taking place by mobile phone from a railway station.

Also on 23 February, Mrs O’Connor obtained from Mr Bevan a letter he had prepared for her and some documents relating to the planning application together with an exchange of correspondence Mr Bevan had had with M & A in December 2008. These documents showed the genuine involvement of Acorn in the planning application but they also showed the involvement, in a number of respects, of Mr Thomas in connection with that application.

On 25 February 2009, the documents provided by Mr Bevan were sent to Mr Albutt with a request for advice as to how best to use the information.

On 26 February 2009 Mrs O’Connor made some amendments to the draft AOS and the draft witness statement of Mr Davies. Later that day she spoke to Mr Albutt who had read the Bevan documents and Mrs O’Connor’s revised drafts. Mr Albutt advised that the Bevan documents should be shown to Mr Davies and to Mr Thomas. He advised that the claim form differed from the protocol letters in that the claim form did not implicate Mr and Mrs Thomas in any way. Mr Albutt seems to have thought the allegations of fiction and misstatement were aimed at Mr Ashton and Mr Bevan rather than Mr and Mrs Thomas. He therefore advised that the draft AOS and the draft statement of Mr Davies should be changed. As to the Bevan documents, Mr Albutt advised that some of them caused Mr and Mrs Thomas “a little bit of a problem”. He also speculated that there might have been some “corruption” in the obtaining of the permission although he did not implicate Mr and Mrs Thomas in that comment. Later that day, Mr Albutt re-drafted the AOS and approved a revised witness statement for Mr Davies.

The AOS settled by Mr Albutt was filed on 27 February 2009. The overall summary of the position invited the court to refuse permission on the grounds that the application was without merit and because it was not made promptly and then added:

“If the 2005 planning permission were to be quashed it would cause wholly disproportionate prejudice and hardship to Mr and Mrs Thomas and without the benefit of any compensation.”

Paragraph 5 of the AOS made the point that the permission benefited the land and not an individual occupier. Paragraphs 8 to 27 addressed the allegations that Mr Ashton had wrongly used the name Acorn Camping to enhance the application and the allegations of material misrepresentations. The AOS said that these allegations were not made against Mr and Mrs Thomas. If there was any maladministration or incompetence in relation to the grant of the permission, then Mr and Mrs Thomas were not to blame. Mr Ashton had instructed Mr Bevan and it was not the case that the wrong name was used to enhance the integrity of application. It was also said that the UVCG had not disclosed that its solicitors had approached Mr Bevan for information before the claim form was issued. It was said that the application was manifestly weak and should not proceed beyond the permission stage.

Paragraphs 28 to 59 of the AOS set out the case for Mr and Mrs Thomas in relation to delay. It was said that the application was hopelessly out of time. The claim form and the statement of grounds did not begin to address the issue of prejudice. Paragraph 38 of the AOS said that Mr and Mrs Thomas had made substantial financial investments in the land since the grant of permission and that quashing “would obviously involve considerable prejudice both financial and otherwise”. At paragraph 39, the AOS said that Mr and Mrs Thomas pressed ahead with the development. At paragraph 40, the AOS said that “the prejudice is manifest”. The AOS also put forward the case that the UVCG had known for some considerable time of the existence of the grounds of challenge to the permission and that counsel had been asked to advise on such a challenge in, and again after, September 2006. Paragraph 56 of the AOS said:

“It is difficult to discern from the [Statement of Facts] whether the Claimant actually alleges that if the planning permission granted in 2005 is quashed, Mr and Mrs Thomas after nearly 4 years of investment in the site, are to be deprived of any compensation. If they are to be deprived of a planning permission without compensation, this is clearly prejudicial and unacceptable.”

RDP also served a short witness statement from Mr Davies. In accordance with the advice of Mr Albutt, this statement was limited to exhibiting the RPS statement of objection to the planning appeal in relation to the building application and the exchange of communications between M & A and Mr Bevan in December 2008.

On the same date, the NPA filed its AOS. This did not oppose the quashing of the permission or the application for an extension of time.

On 3 March 2009, Mrs O’Connor emailed Mr Davies stating that it would be “catastrophic” for Mr and Mrs Thomas if they were not to fight the judicial review in relation to the planning permission if permission to seek judicial review were granted. When cross-examined, Mr Davies agreed with the use of the word “catastrophic”.

In March 2009, Mr Albutt and Mr Atherton advised that the prospects of Mr and Mrs Thomas succeeding with their appeals against the enforcement notices were poor and the appeals should be withdrawn. Mr Thomas was asked for his instructions as to these appeals. In a telephone conversation with Mrs O’Connor on 11 March 2009, he stated that he could not afford for the marquees to be taken down and the site would be unsustainable with them; he thought that they had to fight the appeal in relation to the marquees.

In March and April 2009, consideration was given as to why Mr and Mrs Thomas had paid the fees charged by Azimuth. Mr Bevan suggested that the reason was that the work done by Azimuth related to an application which Mr and Mrs Thomas had made in relation to a barn conversion as well as to the application in relation to a campsite.

On 18 March 2009, Mrs O’Connor emailed Mr Albutt asking if there was anything else she needed to do to prepare for the papers being put before a judge to decide if permission should be given to apply for judicial review. On 20 March 2009, Mr Albutt replied saying that they should be reviewing the further information they had regarding Mr Bevan and also making a commentary on the NPA’s case.

On 23 March 2009, Sir Michael Harrison ordered that the case be adjourned for an oral hearing on notice to the NPA and Mr and Mrs Thomas. He observed: “the issue of delay relating to the 2005 planning permission needs to be dealt with by oral argument”.

On 25 March 2009 Mr Albutt emailed Mrs O’Connor and stated that there was a need to review the further information from Mr Bevan and the need for any further submissions. He also stated that there would be further preparatory work for the oral hearing. He asked: “What are my instructions?” Mrs O’Connor replied that she would take instructions from Mr and Mrs Thomas.

The campsite re-opened in March 2009. On 3 April 2009, Mrs O’Connor spoke to Mr Thomas about storage of caravans. He said that storage of caravans was essential and that his business would be ruined without it. He also said that if that summer were to be the last for the caravan park, he intended to make the most of it. On 7 April 2009, an enforcement notice was served in relation to storage of caravans at the farm.

On 8 April 2009, the NPA wrote to RDP seeking an undertaking from Mr and Mrs Thomas to conform to the conditions of the planning permission as regards number of caravans over the bank holiday weekends. The next day, Mrs O’Connor spoke to Mr Thomas about this letter. Mr Thomas stated that he was trying to operate the site to the maximum extent and to make as much money as possible.

By 10 April 2009, Mr Davies had arranged to meet Mr and Mrs Thomas at the farm on 17 April 2009. On 10 April 2009, Mrs Thomas left a message on Mr Davies’ telephone stating that she wanted to have advice as to how they should sell the farm. On 17 April 2009, Mr Davies and Mrs O’Connor met Mr and Mrs Thomas at the farm. Mrs O’Connor made a detailed note of that meeting. It was clear that Mr and Mrs Thomas felt under immense pressure. They were facing the judicial review proceedings and a series of enforcement notices and appeals. They owed substantial sums to the bank. They were incurring substantial professional fees. In addition, there was enormous hostility to them in the local community which was making difficult the lives of themselves and their children. Further, the relationship between Mr and Mrs Thomas was under strain.

Mrs Thomas had prepared a long list of questions which she wanted to raise on 17 April 2009. The discussion on that day started by working through some of those questions. Then Mrs Thomas explained that she and Mr Thomas felt that they had to get away from the situation they were in. They felt they would come under great pressure from their bank. They wanted to sell 200 acres of land. Mr Davies then advised that it made sense in financial terms for them to see the judicial review through to achieve the maximum capital value for the farm. Mr Davies set out some figures as to values. He referred to £1.4 million to £1.6 million for the house and 80 acres of land. In addition, he referred to the caravan park producing a profit of £60,000 per annum and having a capital value of £600,000. Adding this value to the earlier figures gave a combined value of £2.0 million to £2.2 million. Mr Davies suggested that the time to move on from the farm and caravan site was after these values had been established.

The note of 17 April 2009 records Mr Davies as saying:

“Would never act if he thought we would lose – don’t believe they will take consent away. Marquee – we don’t know about this one – legal issue but we must fight it – still good prospects.”

Mr Davies advised on 17 April 2009 that the main danger was financial and that it was necessary for Mr and Mrs Thomas to be in control of their finances. He advised them to look at a map of the farm over the weekend and decide what to sell. Mrs Thomas said that it was hard to have to sell an asset in order to make an asset. Mr and Mrs Thomas agreed to think about Mr Davies’ advice over the weekend. Mr Davies further advised that what they did with the unsold land and the caravan park after the judicial review and the planning inquiry was resolved was then up to them. At that point, they could stay and grow the caravan park or they could sell and move on. The note of the meeting on 17 April 2009 does not mention the question of compensation being awarded if the planning permission were quashed.

Mr Davies was cross-examined about the meeting on 17 April 2009. He said that he advised Mr and Mrs Thomas to continue with the litigation on a commercial basis. He was asked about the passage in the note which referred to his belief that they would not lose the judicial review. He said in evidence that Mr and Mrs Thomas appreciated that they could lose the judicial review. He told me that he had told Mr and Mrs Thomas that there were always “the perils of litigation”. He was asked to describe in percentage terms the extent of the perils of litigation. He said that he would, in general, allocate 30% to the perils of litigation. He said that Mr and Mrs Thomas were aware that the perils of litigation represented a 30% risk of failure. I am able to accept Mr Davies’s evidence that he did tell Mr and Mrs Thomas that there was a chance they might lose the judicial review and the planning permission would be quashed. I am much more doubtful as to whether he ever told them that he placed a percentage of 30% on that risk. In the end, I do not find that that percentage was ever mentioned to them. There is no sign of it anywhere in the contemporaneous documents. Also, I think that Mr and Mrs Thomas were determined to fight the judicial review and all that they needed for their decision to fight it was to believe that they had good prospects of success.

Mr Davies was also asked about what his advice would have been if others had put forward different assessments of the prospects of success in the judicial review. He said that unless Mr Albutt had advised that the Thomas’s position was hopeless he would have advised them to resist the judicial review at least up until the permission stage. He was also asked to say what advice he would have given Mr and Mrs Thomas on 17 April 2009 if Mr Albutt had advised that they had a 65% chance of success in resisting the judicial review. He said he would probably have made the assessment that it still made sense to fight the judicial review.

In the event, Mr and Mrs Thomas decided to follow Mr Davies’ advice. They sought to sell a large block of land but in the end they sold a smaller parcel of land, 22 acres, to raise funds to pay the professional fees. They contracted to sell this land in October 2009 and the sale was completed later that month.

On 20 April 2009, Mrs O’Connor wrote to Mr and Mrs Thomas with her answers to some 19 questions they had raised on 17 April 2009. The answers dealt with the possibility that permission to seek judicial review would be granted at the oral hearing and also the possibility that permission would then be refused.

On 21 April 2009, Mr Atherton on behalf of Mr and Mrs Thomas appealed against the enforcement notice of 7 April 2009 in relation to the storage of caravans. The notice of appeal sought planning permission for the storage of caravans in buildings and on an area of land to the south of the buildings.

On 23 April 2009, Mrs O’Connor emailed Mr Albutt to tell him that Mr and Mrs Thomas were selling a small proportion of their land to enable them to reduce their borrowings and to leave them with a significant amount to finance the two matters (the judicial review and the enforcement appeals). She asked what preparatory work was required before the oral permission hearing and whether Mr Albutt wanted a further conference with the clients. She asked him how he wanted to deal with matters. There was no reply to this email.

On 27 April 2009, the NPA wrote to RDP stating that the site had been monitored over the Easter weekend and it appeared that the site was operating at a level above the limits set by the planning permission. The NPA repeated its request for an undertaking to comply with the planning permission.

On 28 April 2009, Mr Davies wrote to Mr and Mrs Thomas’ bank manager, Ian Richards at Lloyds TSB. He told him that Mr and Mrs Thomas were marketing approximately 143 acres of the farm. He then wrote:

“The thinking behind this sale is that Geraint has to concentrate very fully over the next nine months on the planning issues that are in the process of being resolved at Gilestone. This is not inexpensive and he cannot risk a situation where funding becomes an issue. If he succeeds in his planning arguments then Gilestone will have been established beyond all doubt as suitable for leisure and that will be the thrust of Geraint’s future investment. If the planning arguments do not succeed, and any existing consent is revoked, then in those circumstances leading planning counsel advises that substantial compensation would be payable – in which case Geraint would probably sell the remaining part of Gilestone and re-invest elsewhere”.

Mr Davies’ letter to the bank manager gave the impression that there were only two alternative outcomes. The first was that Mr and Mrs Thomas succeeded with their planning arguments. That seems to have been a reference to them succeeding in the judicial review proceedings and that alternative was correctly described by Mr Davies. The second alternative was that they did not succeed with their planning arguments in which case, it was said, the planning permission would be revoked and they would receive compensation. The second alternative failed to draw a distinction between the planning permission being quashed by the court and the NPA making a discontinuance order. The word used – “revoked” – was not the right word for either a quashing of the permission or the discontinuance of the use. In both of these events, Mr and Mrs Thomas would end up without planning permission. However, compensation would not be payable if the permission was quashed by the court but would be payable if there was a discontinuance order. Accordingly, Mr Davies did not accurately describe the position if Mr and Mrs Thomas ended up without a planning permission. It is not clear why Mr Davies wrote in the way he did. I do not think that he set out to mislead the bank manager although he probably wished to present a positive picture to him. There was evidence that before and after this letter, Mr Davies believed that if the planning permission was quashed, there might be some scope for a compensation claim against the NPA, whether pursuant to a claim for breach of a duty of some kind or pursuant to a complaint to the local government ombudsman. If Mr Davies did think that there would be, or might be, an ability to claim compensation against the NPA if the planning permission was quashed, then it is clear that he did not get that belief from anything that Mr Albutt had said. Mr Albutt did not give that advice on 6 January 2009 or at any other time before this letter was written by Mr Davies. Thus the letter was inaccurate in so far as it suggested that “leading planning counsel” i.e. Mr Albutt had advised that compensation would be payable following a quashing of the planning permission. Mr Albutt had of course correctly advised that compensation would be payable following a discontinuance order.

On 1 May 2009, Mrs O’Connor emailed Mr Albutt to tell him that the court had proposed to transfer the judicial review case to Cardiff. She asked him for his views. Although the copy email in the bundle is cut off at the edge, it also seems that she also repeated the question in her email of 23 April as to how he wanted to deal with matters. On 1 May 2009, Mr Albutt’s clerk replied stating that Mr Albutt had no objection to the suggested transfer to Cardiff. The clerk did not deal with Mrs O’Connor’s second question and nor did Mr Albutt himself.

On 12 May, Mr Albutt’s clerk telephoned Mrs O’Connor to tell her that the permission hearing would be on 15 June 2009. She said to the clerk that she had emailed Mr Albutt a few times over the last few weeks and was waiting for confirmation of any further work he wanted done for the permission hearing. She asked the clerk to confirm with Mr Albutt if there was anything he required and she would get these into order asap.

On 20 May 2009, Mr Atherton wrote to Mrs O’Connor referring to a screening direction given some time earlier by the Welsh Assembly Government. Mr Atherton advised that Mr and Mrs Thomas had a number of options in relation to the requirement of an environmental statement to support the Atherton Application. One option was to reduce the ambit of the application to try to avoid the need for such a statement; another option was to withdraw the Atherton Application and submit separate applications for lesser development. These suggestions were not taken up by Mr and Mrs Thomas.

On 21 May 2009, Mrs O’Connor wrote to Mr and Mrs Thomas in relation to the power of the local authority ombudsman to award damages. She suggested that they had not suffered any damage. It is not clear what the grounds of complaint to the ombudsman might have been. It may be that the complaint would have related to the way in which the NPA was taking enforcement action against Mr and Mrs Thomas but not (it was suggested) in relation to other caravan sites.

Mr Albutt contacted Mrs O’Connor on 27 May 2009. It seems that he had been away on holiday just before this date. It is likely that he contacted her in order to respond to her earlier requests for his views as to whether anything further needed to be done at that stage. Mr Albutt advised that Mr Atherton should attend the permission hearing “as he has all the historical information at his fingertips”. It is not clear to me why that was considered to be a good idea in view of the likely way in which such a hearing would be conducted. Mr Albutt also asked if anything further had been heard from the UVCG. Mrs O’Connor replied the same day saying that there had been nothing from the UVCG or the NPA. She asked if Mr Albutt wanted her to contact them. She also asked if there was anything further he required done by her in preparation for the hearing and whether he wanted a conference with the clients. Mr Albutt replied the next day saying that Mr Atherton’s presence at the hearing would be very helpful. He said that the hearing was “of considerable importance” to the clients and that they should not go into the hearing with anything less than “the best case we can present”. He did not ask for any other action to be taken. On 29 May 2009, Mr Albutt told his clerk that “a great deal hangs on the hearing”.

On 29 May 2009, HHJ Jarman QC granted permission for the UVCG to serve a response to the AOS by 6 June 2009. RDP had not been notified of the application for that order which application had been made to the court by letter dated 31 March 2009.

By late May 2009, the police investigation into the circumstances in which the planning permission had been granted had proceeded to the point where the police wished to interview Mr and Mrs Thomas and they had instructed a solicitor, Ms Sophie Toms, to advise them in connection with the police investigation.

It seems that in around May 2009 the UVCG was given advice by its counsel on the UVCG’s prospects of success in its applications for judicial review. This appears from a letter written by Mr Needham of the UVCG on 13 July 2009 to the members, or the supporters, of the UVCG. This letter was not available to Mr and Mrs Thomas or their advisers at that time. The letter stated that in May 2009, the UVCG’s counsel advised it that the prospects of success in its challenge to the planning permission were between 55% and 60% and the prospects of success in its challenge to the decision of 7 November 2008 were 60 to 65%. It is, of course, not known what facts counsel assumed for the purposes of giving advice on the prospects of a successful challenge to the planning permission. Mr Needham’s letter also recorded that “the vagaries of litigation are such that 80% is the maximum at the favourable end on the spectrum of any such assessments”.

On 1 June 2009, Mr Albutt emailed Mrs O’Connor to say that they should await the response to the AOS. On the same day, M&A applied to the court for the time estimate for the hearing to be extended to 1 day.

On 3 June 2009, Mr Albutt spoke to Mrs O’Connor and said he was extremely concerned about M&A’s attempt to increase the time estimate, although unsurprised. He advised notifying the Court of the concerns and suggesting a direction for skeleton arguments which would in all likelihood mean an adjournment of the hearing. He added:

“We are on completely the wrong foot and our worst case scenario at this point is that if we are not in a position to prepare properly we may end up proceeding to trial. This would obviously end up with a great deal of expense and would be particularly unsatisfactory”.

He also referred to the possibility that the planning permission would be quashed (the note of the conversation says “taken away”).

On 5 June 2009, M&A sent to RDP by email a witness statement of Eric Evans, a partner in M&A, although not the exhibits to that statement. Ms O’Connor sent this email on to Mr Albutt at the end of the day, which was a Friday. The statement said that, on 4 June 2009, Mr Evans had spoken on the telephone to Mr Gardiner, the managing director of Acorn. It referred to the letter from Gardiner of 10 November 2008 (supplied by M&A in January 2009). The statement said that Mr Gardiner had given further information as to the non-involvement of Acorn in connection with the planning application. Mr Evans said that this information meant that, if Mr Ashton did make the application, he was on a frolic of his own. It was said that Mr Bevan’s role had been to maintain the false appearance that Mr and Mrs Thomas were not the applicants.

Mr Evans’ statement then said that Mr and Mrs Thomas had on numerous earlier occasions referred to the application as one which they had made and in which they were intimately involved. He referred to:

Early on 9 June 2009, Mr Albutt emailed Mrs O’Connor. He said that he would look at Mr Evans’ statement in as much detail as he could that day. He had not yet received the enclosures with the statement. He said that the statement did not address the most important point, which was that counsel had been instructed years before to advise on a possible challenge to the planning permission and the challenger had failed to bring judicial review proceedings. He was anxious not to embark on a great deal of work because the hearing might be adjourned. He said that he had advised in the past that the threshold for permission was low and many issues did not appear to have clear answers. He assumed that Mrs O’Connor was in the process of taking instructions from Mr and Mrs Thomas.

On 9 June 2009, HHJ Curran QC directed that the hearing was to remain in the list for 15 June 2009, with the hearing beginning at 12.30 pm, with a time estimate of 3 hours and he gave directions as to skeleton arguments.

On 9 June 2009, Mr Albutt and Mrs O’Connor discussed those directions. He said he thought it likely that the UVCG would get permission to proceed. He thought that it was possible that Mr and Mrs Thomas could be successful on the point of delay, but the judge might consider that the matters in the claim were so significant and there was such a public interest that the matter should be allowed to proceed. He was not going to make an application to adjourn as if he was coming to Cardiff, “we may as well get on with it”.

On 10 June 2009, the NPA wrote to RDP referring to Mr Evans’ witness statement and the factual issues between the UVCG and the Thomases. The NPA letter enclosed four documents which it said might bear on the issue of the Thomases’ involvement in the planning application. The documents were:

On 10 June 2009, Mrs O’Connor emailed to Mr Albutt the documents she had received from the NPA. On the same day, she emailed him the comments of Mr and Mrs Thomas on Mr Evans’ statement.

Later on 10 June 2009, Mr Albutt emailed Mrs O’Connor with some comments on the documents he had been sent. He stated that some of the documents which Mrs Thomas had sent to the NPA “cast some doubt on the propriety of the application.” He said that there was a great deal of work to be done.

On 11 June 2009, in a conversation with Mrs O’Connor, Mr Thomas stated that he was adamant he would not move from Gilestone because it was his home. He added that Mrs Thomas would be happy to move to Usk but he would not be willing to do that and he would continue to fight.

On 12 June 2009, Mr Albutt emailed Mr Atherton and said that he was driven to the view that the factual basis of the issues raised on the judicial review had become so complicated so that he could not see a judge doing anything other than granting permission for the matter to proceed so that it could be aired at a public hearing.

On Friday 12 June 2009, skeleton arguments were exchanged. The UVCG’s skeleton argument was effectively a full written submission which ran to 48 pages and appended two documents, one of which was the receipt showing that Mr Thomas had paid the fee for the planning application. The skeleton identified pre-reading for the judge which was estimated to take four hours. The skeleton was hard hitting and highly critical of Mr and Mrs Thomas. It said that the challenge to the planning permission was not “run of the mill” as the facts were unusual and unsettling. It pointed out that the NPA did not seek to defend its decision to grant planning permission. It referred to the police investigation into the propriety of the grant. It was suggested that Mr and Mrs Thomas had created, and continued to create, the false appearance that the application was made by a commercial third party so as to conceal the real fact that it had been their application. In so far as Mr and Mrs Thomas sought to rely on prejudice to themselves, it was said that any prejudice was self-induced. The passage of time was due to their concealment of the facts. The decision was “rotten to the core and fraud unravels all”. It was an aggravating feature that Mr and Mrs Thomas sought to uphold the permission to keep alive their claim to compensation which would be payable in the event of a discontinuance order. If the permission were quashed then “any claim for compensation would die with it.” However, that would not result in “undue” prejudice to Mr and Mrs Thomas, owing to their fraud. The skeleton then developed in great detail the challenges to the planning permission and the severe criticisms of the alleged conduct of Mr and Mrs Thomas. Finally, the skeleton dealt in detail with the challenge to the NPA’s decisions to take enforcement action rather than to order discontinuance.

Mr Albutt settled the skeleton argument for Mr and Mrs Thomas. The overall summary said:

“If the 2005 planning permission were to be quashed it would cause wholly disproportionate prejudice and hardship to Mr and Mrs Thomas and without the benefit of any compensation.”

At [21] the skeleton argument said:

“It is not known whether the [the UVCG] say that Mr and Mrs Thomas should be deprived of their planning permission without compensation”.

Mr Albutt’s skeleton argument addressed the UVCG’s application for an extension of time to challenge the planning permission. The submissions were by reference to the matters set out in CPR 3.9, as they were at the relevant time (that rule has, of course, since been amended). It was contended that the effect of the grant of relief on Mr and Mrs Thomas would be significant. They had relied upon the planning permission and had proceeded with considerable investment in the site. The judicial review proceedings would cause anxiety and uncertainty so that they could not make decisions about their business during the continuation of the proceedings. They would suffer substantial prejudice and hardship and the challenge was to the detriment of good administration.

The NPA did not serve a skeleton argument for the permission hearing.

On Sunday 14 June 2009, Mr Albutt discussed the case with Mrs O’Connor. He expressed concern that the allegation now being made was that Mr and Mrs Thomas had been involved in a fraudulent application for planning permission. He said that, given the lack of any evidence, the allegation was extraordinary. Now might well be the time to produce the documents supplied by Mr Bevan. Mr Albutt would email on the morning of 15 June 2009 to confirm his view as to the Bevan documents. Until Friday evening, they had no reason to think that there was any suggestion that Mr and Mrs Thomas had done anything wrong. The suggestion previously had always been against Mr Bevan and Mr Ashton. Mr Albutt said that there was no doubt that the permission was extremely odd and that there had been huge administrative errors by the NPA but, whilst Mr and Mrs Thomas might have acted naively he did not think they had acted in any way fraudulently. Nonetheless, he understood the allegation which was made against them. Mrs O’Connor then spoke to Mr and Mrs Thomas and passed on this advice.

On the morning of 15 June 2009, Mr Albutt emailed Mrs O’Connor advising which of the Bevan documents should be sent to the other parties. The relevant documents were then sent to M & A and the NPA.

The application to extend time and for permission was heard on Monday 15 June by Wyn Williams J. There is a transcript of the hearing. Mr Albutt began by asking if the Bevan documents could be added to the hearing bundle, to which there was no objection and he said that there would be a witness statement exhibiting them in due course.

Mr Davies QC, for the UVCG, opened the application. He pointed to the documents showing the involvement of Mr and Mrs Thomas in the planning application. He then took the judge to the decision of the Court of Appeal in R v Bassetlaw D C ex parte Oxby [1998] PLCR 283. Wyn Williams J then raised the question of whether prejudice could be considered at the substantive hearing. Just before he rose at 1 pm the judge said that in a case where the NPA consented to permission for judicial review and to an extension of time, any judge would be concerned to do justice in that context. He said that there must be a great temptation for a judge to consider that it was better to consider arguments about prejudice at the time when substantive relief was being considered rather than at the permission hearing.

After the short adjournment, the judge invited Mr Green, counsel for the NPA to address him on whether the question of prejudice would more properly be dealt with at the substantive hearing. Mr Green submitted that it was well established that delay could be raised a second time on a substantive hearing and could result in the refusal of relief.

The Judge then heard from Mr Albutt. The judge asked: “why should I stop it now, Mr Albutt?” Mr Albutt addressed the judge in detail as to the involvement of Acorn in the planning application. The judge intervened to pose the question whether Mr and Mrs Thomas were sufficiently protected if permission was given because they could resist relief on precisely the same grounds and that it would otherwise be in the public interest and in the interests of justice to have the dispute fully heard. The judge then said once he got to the point that there were arguable grounds for quashing, which he had, then it became an evaluation of delay point. The judge then made the following remark:

“So unless you can convince me that my analysis is wrong then I have to say you haven’t actually put in any evidence of prejudice, not a jot.”

Mr Albutt submitted that one could easily see what the prejudice was, but the judge said:

“I can imagine circumstances in which prejudice may arise … but that is not to say that in the particular case I should be satisfied at this stage that so prejudicial would the grant of permission be that I shouldn’t grant it…. Which is difficult in the absence of evidence.”

Mr Albutt referred to the door being “so firmly closed” which was a reference to the judge’s remarks. The judge then referred to the permission hearing not being the substantive trial and he wanted to concentrate on what was crucial “at the moment”.

Mr Albutt then made detailed submissions about the delay by the UVCG with knowledge of the alleged defects in the planning permission. He said again that Mr and Mrs Thomas had in the meantime invested in the site. The judge then remarked:

“You say they obviously have invested in the site. Normally in cases like this you get a statement telling the judge what they have done ... I don’t assume that it costs a huge amount of money to lay out a field to allow caravans to be there. I mean I just don’t know one way or the other. I am prepared to accept that it might, but I am also prepared to think that a person who does it may have made a large profit in the meanwhile so that overall there is not a detriment. I mean I just don’t know without evidence”.

In the course of those remarks, Mr Albutt submitted that there was a lot of evidence that they had carried out works to the site. Mr Albutt also referred to the uncertainty for Mr and Mrs Thomas if permission were given. The judge commented that if the substantive hearing was in October or November, Mr and Mrs Thomas could run their business for the summer. The judge then commented that if he granted permission, the judge at the substantive hearing could make up his own mind as to the effect of delay. He referred to “the powerful nature” of such a point at the substantive hearing but his views would not bind the judge at the substantive hearing.

The judge then heard further submissions from the other counsel.

The judge did not give a detailed judgment. He said he did not want anything he might say to influence the substantive hearing. He then said:

“I have to some extent been troubled by the notion, by the submission rather, that this challenge could have been brought in 2006 or 2008 but I have been persuaded that there is insufficient evidence before me of true prejudice, detriment or hardship (whatever the correct word may be) to the interested parties to make it proper to prevent what is clearly an arguable case on the papers from proceeding to a full hearing. I take the view that the issues surrounding the delay in this case are much better dealt within the context of whether relief should be granted as opposed to at the stage where permission is being considered...”

The judge granted the UVCG an extension of time for applying for judicial review of the NPA’s decision to grant the permission to the date of the claim form so that the claim form was deemed to have been issued in time. He granted permission to the UVCG to apply for judicial review of both that decision and the November 2008 decisions. He directed that the hearing of the claim was to take place in October 2009, with a 5 day estimate, and directed the service of evidence by Mr and Mrs Thomas and the NPA by 31 July 2009 and evidence in reply by the UVCG by 28 August 2009.

Immediately after the hearing on 15 June 2009, Mr and Mrs Thomas went with Mrs O’Connor and Mr Albutt into a side room at the court for a short discussion. Mrs O’Connor gave evidence that Mr Albutt said that he was disappointed by the outcome but that he remained confident that the planning permission would not be quashed. Mr Albutt did not seriously disagree with this evidence.

On 24 June 2009, Mrs Thomas wrote to Mr Davies. Parts of the letter are not well expressed but it is reasonably clear what she meant. She said it seemed highly likely to her that the judge would “remove” the planning permission in October 2009. She said that her only fear was the accusation of fraud leading to discontinuance with no compensation. She said that she knew they could prove there was no fraud. Once they had established that the permission would not be removed by reason of their fraud, she seriously thought they had to entertain the possibility of their planning being “removed”. They were not at all opposed to this. They might be jumping the gun if they sold their land now before the hearing. If they lost the planning permission with compensation they would be left with an agricultural holding with no caravan park and too small to farm in a commercial way which would be the worst of all situations. She asked for advice as to whether they could delay the bank until they knew the outcome of the trial.

The same day, Mr Davies replied to Mrs Thomas by email which stated:

“... we remain confident that we can defeat, on the evidence you have given me, and which I have no reason to doubt, the suggestion that the consent was obtained by fraud ...

Thus, on the basis that the fraud allegation is defeated, if Usk Valley succeed on the delay point and do in fact get the planning decision reversed, then the current advice from Counsel is that compensation should follow.

… you have to fund your way through the current proceedings and achieve an overall satisfactory resolution. A lack of funding at this stage would be fatal.

It was for that reason that I advised you to commence marketing of part of the farm so that you were away from the bank’s clutches.

When we agreed to market our logical thought process was:

(a)

If we win then you will have the remaining parts of Gilestone Farm with a valuable and operable planning consent. …

(b)

If you fail, but get compensation, then you will have sufficient funds to move from Gilestone …

(c)

If you lose entirely and fraud is proved then your remaining assets at Gilestone will still be valuable and they will have to be the base for you to start again.

(d)

What you cannot do is lose focus at the present time and, through that, end up with the bank cutting off your finances.

… faith in the strategy that we have developed was now essential and we must not waiver.”

This advice from Mr Davies was to the effect that if the planning permission was quashed but there was no finding of fraud on the part of Mr and Mrs Thomas, then they would be entitled to compensation. The advice also stated that counsel (i.e. Mr Albutt) had so advised. Mr Davies’ advice was wrong and, further, he was wrong to say that counsel had given this advice. In these proceedings, Mr and Mrs Thomas were asked whether they asserted that Mr Albutt had given that advice before the date of Mr Davies’ email and it was confirmed on behalf of Mr and Mrs Thomas that it was not alleged that Mr Albutt had given that advice before that date. A copy of Mr Davies’ advice to his clients was not sent to Mr Albutt and he had no reason, certainly at that time, to be aware that Mr Davies had given that advice.

I also comment in relation to Mr Davies’ advice that he clearly referred to the possibility that the planning permission might be quashed even in the absence of fraud on the part of Mr and Mrs Thomas.

On 29 June 2009, Mrs Thomas wrote two letters to Mrs O’Connor. In the longer letter, Mrs Thomas said that assuming that they were not guilty of fraud (and they had not committed any fraud) there were two options; the first was the removal of planning with compensation and the second was allowing the campsite to continue in operation. She stated that the substantive judicial review hearing would now take place much sooner than expected and that the site had not yet reached its expected value. She stated that after the hearing, the Thomases would either have “huge compensation” or own a very valuable site. She added that if the planning permission were removed, the Thomases would still wish to remain at the farm and farm the land and hopefully convert the barns into holiday lets. In a shorter letter sent on the same day, Mrs Thomas told Mrs O’Connor that it might help to have an idea as to the amount of compensation if things went against them. Mrs O’Connor gave evidence that she had a conversation with Mr Atherton in which he suggested that the compensation might be £850,000 but it was not made clear to me when this happened and what use, if any, was made of this information.

On 6 and 7 July 2009, Mrs O’Connor and Mr Albutt exchanged emails in which he expressed his concern that she did not have assistance at her firm in handling the judicial review claim in view of her frankness in the past in indicating that she was not familiar with judicial review proceedings. He described the case as a significant judicial review with a vast amount of material. Mr Davies emailed Mr Albutt on 7 July 2009 to say that he was supervising Mrs O’Connor. However, I find that the true position was that Mrs O’Connor was expected to do all the work on preparing the witness statements and otherwise preparing the case for trial without any real assistance at her firm.

A conference had been arranged with the Thomases and Mr Albutt on 8 July 2009 to consider draft witness statements. Mrs O’Connor was late in sending draft witness statements to Mr Albutt. In the event, she provided a draft in relation to Mr Thomas alone at the end of 7 July 2009. The draft dealt with the circumstances in which the planning application was made but did not refer to the investment which Mr and Mrs Thomas had made in the site or the question of prejudice resulting from a quashing of the planning permission.

On Wednesday 8 July 2009, there was a conference with Mr Albutt attended by Mrs O’Connor, Mr Atherton and Mr and Mrs Thomas. The conference lasted from 12 noon to 5.30 pm. There are notes of the conference made by Mrs O’Connor, Mrs Thomas and Mr Atherton and Mr Atherton’s note has been transcribed.

The matters dealt with by Mr Albutt at this conference included the following:

I find on the basis of the notes of the conference on 8 July 2009 and of the oral evidence that Mr Albutt referred to the planning permission being quashed if there was “wrongdoing”. I find that what was meant (and what was understood) by “wrongdoing” was not confined to the alleged wrongdoing or fraud in relation to the application being made in the name of Acorn. The discussion at the conference also considered in detail the question of how it came about that the application for planning permission resulted in a planning permission for 50 caravans and 50 tents. I find that “wrongdoing” as discussed at the conference potentially extended to the question of how use for caravans had been permitted. Mr Albutt advised that he did not think that the planning permission would be quashed if there was no “wrongdoing”. When he said that the planning permission was extraordinary and not what was applied for, he was stating that even apart from the wrongdoing, there were questions as to the validity of the planning permission. He did not give detailed advice on all of the challenges to the planning permission, such as the failure to provide an environmental statement. His opinion, as expressed at the conference, amounted to advice that if there was no wrongdoing, Mr and Mrs Thomas would be able to resist the quashing of the planning permission because of the delay involved and the prejudice to them. He was obviously basing his view as to prejudice on the fact that Mr and Mrs Thomas had implemented the permission and had incurred substantial capital expenditure in so doing. At that stage detailed evidence as to prejudice had not been assembled. I also find, based on an email from Mrs O’Connor dated 16 July 2009, to which I refer below, that Mr Albutt advised that to make out the case on prejudice it was very important that Mr and Mrs Thomas produce evidence as to expenditure on, and income from, the site.

Mr Thomas stated that following the conference on 8 July 2009, he started going through the receipts and invoices to make a list of the expenditure on the site. He did not take any steps to assemble information as to the income from the site.

On 15 July 2009, the NPA disclosed a number of documents, one of which was a copy of the opinion (referred to in paragraph 38 above) from Tina Douglass in relation to which the NPA waived its privilege.

On 16 July 2009, Mrs O’Connor wrote to Mark Gwillim of Guilfoyle Sage & Co, the accountant for Mr and Mrs Thomas, asking for copies of VAT books, bank statements and loan information from 2004 to date as a matter of extreme urgency. Also on 16 July 2009, she emailed Mr and Mrs Thomas with a draft statement for Mr Thomas. In her email she said:

“A very very important issue which must be finalised as soon as possible is the finances. I have contacted Mr Gwillim and requested your VAT books, and bank statements from 2004 to date but if you can assist at all on calculating the monies spent on the various issues I would be grateful. The legal costs can be checked at this end easily enough but the monies spent on the development and income is of course your area”.

Mrs O’Connor’s email is important. I find that she wrote in these terms because she had understood, and was repeating, the advice given by Mr Albutt in conference on 8 July 2009 that it was “very, very important” in connection with proving that Mr and Mrs Thomas would suffer prejudice if the planning permission were quashed for them to produce evidence as to expenditure on, and “income” from, the site.

The draft of Mr Thomas’ statement as at 16 July 2009 had a section at the end dealing with prejudice, paras 96-112, under four headings: first, “prejudice – costs incurred (legal & professional)”; second, “prejudice – costs incurred (development of the caravan park)”; third “prejudice – income from the caravan park”; fourth, “prejudice – stress and anxiety caused”. There was next to no detail in the text under the second and third headings. Under the third heading, there was one paragraph, 109, which said:

“The income from the caravan park from March 2009 to date has been approx £ on a weekly basis. Income from previous years is [insert details]”.

On 18 July 2009, Mrs O’Connor sent this draft of the witness statement to Mr Albutt. She said she would be working on it again on 20 July 2009 “hopefully with all the financial information”. She added: “[n]o doubt you can let me know where needs to be worked on.”

On 20 July 2009, Mrs O’Connor sent to Mr Albutt a draft of a witness statement for Mr Davies. He dealt with his involvement with Acorn and Mr Bevan but he also described the stress which the challenge to the planning permission had caused Mr and Mrs Thomas and he gave some information about the legal and professional fees they had incurred. On the same day, the NPA proposed a 14 day extension to 14 August 2009 for statements from the NPA and Mr and Mrs Thomas, which was agreed.

On 21 July 2009, Mr Thomas sent to Mrs O’Connor by fax a 20 page handwritten list of expenditure on the site. Later that day, she sent to Mr Albutt a revised version of Mr Thomas’ statement. The sections dealing with prejudice had not changed (although they had been renumbered). There was still very little detail as to expenditure and no information as to income.

On 22 July 2009, Mr Albutt emailed Mrs O’Connor to say that a large box of papers had arrived in chambers the day before (this was the material disclosed by the NPA) and he could not possibly tackle that other than briefly scanning it. It would be best to deal with the statement in conference the next day by going through it in some detail.

On 23 July 2009, there was a further conference with Mr Albutt attended by Mrs O’Connor and Mr and Mrs Thomas. It lasted from 10.30 am to 4.30 pm. Notes were taken by Mrs O’Connor and Mrs Thomas. There was a review of the draft statements. In relation to the paragraph in Mr Thomas’ statement referring to expenditure on the site, it was agreed that Mrs O’Connor would send the handwritten list of expenditure to Mr Albutt. There is no sign in the attendance notes or elsewhere that the question of income from the caravan park was discussed at this conference.

The notes of the conference of 23 July 2009 indicate that the following matters were discussed:

At the trial, Mr and Mrs Thomas gave evidence that during one of the conferences with Mr Albutt, they thought it was the conference on 23 July 2009, Mr Albutt referred to the paragraph in the draft witness statement dealing with income and asked Mr Thomas how much money the caravan park was making. Mr Thomas said that he was not sure as he did not have any bank statements with him and there were no up to date accounts so that made giving an accurate response rather difficult. The evidence was that Mr Albutt then asked how much the caravan park had made the previous week and in response to that question Mr Thomas had said that they had banked “around £10,000” which would have been a fairly accurate figure for gross income at the height of the season. It was said that Mr Thomas was not asked whether that figure was net of expenditure or whether it reflected the income that they earned across the season. They did not spend very much time on the issue and Mr Albutt did not seem to attach any importance to the issue. It was then said that as a result of this discussion, the witness statement was amended to say that:

“The income from the caravan park from March 2009 to date had been approximately £10,000 on a weekly basis at present.”

In his closing submissions on behalf of Mr and Mrs Thomas, Mr Jourdan did not ask me to accept this evidence. It is clear that what Mr and Mrs Thomas told me did not actually happen. There are drafts of this witness statement which existed at various times after 23 July 2009 which do not have any change to the original draft which referred to income. Further, it is clear from later events, that the figure of £10,000 was provided by Mr and Mrs Thomas to Mrs O’Connor on 31 July 2009 and she then revised the draft statement and on 31 July 2009 she sent the draft statement to Mr Albutt.

The next day, 24 July 2009, Mrs O’Connor spoke to Sophie Toms, the solicitor at HPJV, Solicitors acting for Mr and Mrs Thomas in connection with the investigation being undertaken by the police into the circumstances surrounding the grant of the permission. Sophie Toms’ note records Mrs O’Connor saying that after evidence was served on 14 August 2009 she believed that the UVCG “… may withdraw their application and thereafter they can obtain costs” for the Thomases. This was somewhat wishful thinking. It was put to Mr Albutt that Mrs O’Connor’s state of mind showed that the mood during the conference on 23 July 2009 must have been optimistic. Mr Albutt said that Mr and Mrs Thomas were worried and anxious at this and the other conferences. I accept this evidence.

On 31 July 2009, Mrs O’Connor spent the day revising the draft of Mr Thomas’s statement. She consulted Mr and Mrs Thomas as to the amendments. At the end of the 31 July 2009, she sent the revised draft to Mr Albutt. In this version, the paragraph headed “Prejudice – income from the caravan park” had become paragraph 138 and now read:

“The income from the caravan park from March 2009 to date has been approx £10,000 on a weekly basis at present”.

There was a further conference with Mr Albutt on 5 August 2009. It was attended by Mrs O’Connor, Mr Atherton, Mr and Mrs Thomas and Mrs Thomas’ eldest daughter Charlotte (known as Charlie) Evans. It lasted from 10.30 am to 7.25 pm. I have the handwritten notes of Mrs O’Connor, Mrs Thomas and Mr Atherton and I have a transcript of Mr Atherton’s notes. Prior to the conference, Mrs O’Connor had sent to Mr Albutt a substantial number of documents including the documents disclosed by the NPA. The documents ran to thousands of pages. Mrs O’Connor had not read these documents but had simply passed them on to Mr Albutt who did read them. At the conference, Mr Albutt spent a considerable period of time referring to relevant parts of these documents. The matters discussed included the following:

None of the notes refer to any discussion about the part of Mr Thomas’ witness statement which dealt with the income from the site. However, Mr Albutt gave evidence that at this conference he queried the source of the figure of £l0,000 per week which had been added to the draft statement by Mrs O’Connor. Mr Albutt’s evidence was that Mr Thomas told him that the figure was correct and had been taken from his income books for the caravan park. It was also his evidence that he emphasised that all the profits made by Mr and Mrs Thomas from the caravan park needed to be set out in the statement, supported by the appropriate documentation. None of these alleged statements are referred to in any way in the various notes of this conference. Mrs O’Connor’s notes ended with a long “to do” list and there is no reference in that list to any steps being required in this respect. I am not persuaded that Mr Albutt’s advice on the question of income was as emphatic as he now says that it was.

On 7 August 2009, the solicitors for the UVCG wrote a long letter to the NPA commenting on some of the material disclosed by the NPA. They referred at length to Ms Douglass’ opinion and suggested that the NPA at that time (September 2006) ought themselves to have brought proceedings to quash the planning permission. The solicitors repeated the allegation of fraud and misleading conduct by Mr and Mrs Thomas. They added that if a discontinuance order was made, no compensation would be payable because the underlying right to compensation would arise out of deliberate concealment, deliberate misrepresentation and/or fraudulent activity. This was a new point and the solicitors for the UVCG were now asserting that wrongdoing on the part of Mr and Mrs Thomas could cause them to lose the compensation otherwise payable following a discontinuance order. The solicitors said that the UVCG’s costs, including the uplift of the fee on a conditional fee basis would be in the order of £1m.

On 10 August 2009, Mrs O’Connor sent a copy of the letter of 7 August 2009 to Mr Albutt. On the same day, Mr Albutt replied. He said that he thought the UVCG realised that they were in considerable difficulty regarding delay because, as he had pointed out in conference, the NPA failed to follow the advice from Tina Douglass that a judicial review challenge could be made. He thought the thrust of the letter was that the NPA should revisit the matter of discontinuance. If the NPA went down that route, there was little that Mr and Mrs Thomas could do other than object at a public inquiry, although the odds might be stacked against them because of the rather unusual way in which the permission was originally granted. Of course they would receive compensation.

On 12 August 2009, Mrs O’Connor emailed to Mr Albutt a 16 page typed list of costs. In her email, she described this as a list of all costs attributed to the caravan park since March 2005 excluding legal, planning consultancy and accountancy costs. This list was to be become exhibit GT2 to Mr Thomas’ statement. The list was headed: “Financial costs related to Gilestone Caravan and Camping Park and its development since March 2005. These costs exclude legal fees, planning consultancy fees and accountancy fees.” The costs totalled £846,158.53. On the same day, Mrs O’Connor emailed Mr and Mrs Thomas describing the list as a list of “all development and day to day running costs of the park excluding legal, planning and accountancy fees”. She explained that she wished to exclude the legal and planning costs so as not to prejudice a claim for costs. Mr and Mrs Thomas have not suggested that there were running costs which were not included in the list.

On 13 August, Mr Atherton emailed to Mr Albutt a draft statement which had been prepared by Mr Atherton himself. The draft statement was critical of the processes that led to the grant of the permission. On the same day, Mr Albutt emailed Mrs O’Connor a revised version of Mr Thomas’ statement, which he said he had radically redrafted.

On 13 August 2009, Mrs O’Connor emailed to Mr Albutt a further version of Mr Thomas’s draft statement. She explained that Mr and Mrs Thomas had spent hours working through the draft. There was no significant change to the paragraphs in the draft which dealt with prejudice and no change to the paragraph dealing with the income from the site.

On 14 August 2009, Mr Albutt sent to Mrs O’Connnor a revised version of Mr Davies’ draft statement. Paragraph 21 referred to advice which Mr Albutt had given at a conference on 11 December 2006, when he was first instructed in relation to Gilestone. As amended by Mr Albutt, the statement read:

“I attended a conference at Gilestone with Counsel and Mr Atherton on 11 December 2006. At that conference Counsel (Mr Ian Albutt) advised that the planning permission wasremained valid and any application for judicial review would be hopelessly out of time”.

Also on 14 August 2009, Mr Albutt sent an email to Mrs O’Connor and Mr Atherton, with comments on Mr Atherton’s draft statement. Mr Albutt wrote:

“…we do not wish to make it look as though the planning permission was so utterly preposterous in its grant, because this may cause the court to take the view that it should be quashed anyway because it is not in the public interest. In the absence of wrongdoing this would not mean that the Thomases would be deprived of compensation however. They would obviously prefer to keep the planning permission intact rather than go through a round of discontinuance proceedings”.

This statement by Mr Albutt is somewhat condensed. I have some difficulty in interpreting it. Mr Albutt knew that if the permission were quashed there would be no compensation. He had originally given clear advice to that effect. He also knew that Mr and Mrs Thomas would be entitled to compensation if there were a discontinuance order. The only time that that proposition had been called into question was in the long letter from the solicitors for the UVCG where it was suggested that Mr and Mrs Thomas would somehow forfeit their right to compensation following discontinuance if they were guilty of fraud. However, Mr Albutt’s statement could be read in the sense that if the permission were quashed and Mr and Mrs Thomas had not been guilty of wrongdoing then they would not be deprived of compensation.

In his evidence, Mr Albutt accepted that the statement in the email was unclear but he explained that he had had only a few hours sleep on each of the preceding nights as he was working on revising the draft witness statements which had been sent to him by Mrs O’Connor. It is clear from the times of the emails which were exchanged at this time that Mr Albutt’s evidence about lack of sleep is correct.

Mr Albutt’s solicitors asked for information as to whether this email was ever provided to Mr and Mrs Thomas and it was confirmed that it had not been provided to them. There was no evidence that Mr Davies ever considered this email. Mrs O’Connor said in her witness statement that she understood the email to say that if the permission were quashed, then in the absence of wrongdoing, Mr and Mrs Thomas would be entitled to compensation. She was not cross-examined on this statement. Whilst I understand her evidence, I consider that is highly likely she paid very little attention to this part of the email. The email was addressed to Mr Atherton although Mrs O’Connor was copied in to it. The purpose of the email was to make a comment on Mr Atherton’s draft witness statement. There was no expectation that Mrs O’Connor would have to consider the reference to compensation or to react to it in any way. On 14 August 2009, Mrs O’Connor was very hard pressed in relation to finalising the witness statements and serving them on the other parties. Moreover, I ought to take account of other parts of her evidence where she accepted that there was some confusion on her part as to the availability of compensation. Her thinking was that the planning permission was unlikely to be quashed and the subject of compensation would arise only in the context of a discontinuance order following the court’s decision not to quash the planning permission.

Later on 14 August 2009, Mrs O’Connor emailed to Mr Albutt a draft statement for Mrs Thomas which contained new paragraphs dealing with the question of prejudice. Mrs O’Connor explained that Mrs Thomas was “very keen on the prejudice point”. The new paragraphs focussed on the stress and anxiety caused to the Thomas family by the challenge to the planning permission. Mrs Thomas’ draft paragraphs explained that Mr and Mrs Thomas had no option but to fight the judicial review. She stressed that the challenge to the planning permission involved a serious attack on their reputations which were of the utmost importance to them. She explained that the allegations of fraud which had been made had re-ignited the passion of herself and her husband to remain at the farm and fight the judicial review.

On 14 August 2009, Mr and Mrs Thomas made some final corrections to Mr Thomas’s draft statement but otherwise approved it. They did not make any change to the paragraph which dealt with the income from the site. On the same day, which was the last day for service of the same, RDP served the witness statements on behalf of Mr and Mrs Thomas, including Mr Thomas’ own statement. The paragraph dealing with income read:

“The income from the caravan park from March 2009 to date has been approx £10,000 on a weekly basis at present.”

On 18 August 2009, Mrs Edwards at the NPA telephoned Mrs O’Connor to say that the NPA was about to make an offer to settle the judicial review proceedings. Initially Mrs O’Connor was confused about the offer which the NPA proposed to make. She thought that the offer would refer to the quashing of the decisions in November and December 2008. She appears to have had conversations with Mr Albutt and Mr Thomas on that basis before she understood the offer that NPA was actually making.

On 18 August 2009, the NPA wrote to RDP making a without prejudice offer to settle the judicial review proceedings. The offer was that there be an order quashing the planning permission, leaving the Atherton Application undetermined, and that the challenges to the 2008 decisions be dismissed, with no order as to costs. A draft order was enclosed. The letter said that, if the offer was accepted, it: “... would bring this litigation quickly to an end without further cost being incurred by any party”. It is clear that the NPA made this offer because it had become increasingly concerned about the costs of the judicial review proceedings following correspondence from the solicitors for the UVCG where it was stated that they would claim costs of £1 million if they succeeded.

On 20 August 2009, Mrs O’Connor emailed Mr Albutt to ask for his views on the NPA offer. It is not clear to me whether Mr Albutt spoke to Mrs O’Connor in response to this email or whether there was only an earlier telephone call when Mrs O’Connor was still confused about the offer which the NPA intended to make. In any event, Mr Albutt emailed his views to Mrs O’Connor on 24 August 2009. He speculated as to what the motives of the NPA were and what the reaction of the UVCG might be. I think that some of these comments were somewhat confused and it is not particularly helpful to try to untangle them. He then considered the position of Mr and Mrs Thomas. He addressed the suggestion that Mr and Mrs Thomas would be left with the benefit of an undetermined planning application (the Atherton Application). He could not envisage circumstances in which the NPA would grant planning permission delivering the same benefits as the 2005 permission. He also stated that he could not imagine circumstances in which a planning permission of any value to Mr and Mrs Thomas would be granted. He added that the quashing of the 2005 permission would mean no compensation. Mr Albutt’s email also contained two confusing passages. In one place he said that Mr and Mrs Thomas had nothing to lose and everything to gain and in another place he said that they had nothing to lose except everything in terms of the planning permission. Then Mr Albutt stated that the UVCG’s evidence was due on 14 September 2009 and that it would be prudent for him to be instructed to read all the disclosed evidence and advise. He proposed a further conference to consider the evidence. He ended by asking: “Am I so instructed?” In fact, no such conference took place.

On 21 August 2009, Mr and Mrs Thomas were interviewed by the police in relation to an investigation as to the circumstances in which the planning permission had been granted.

On 25 August 2009, the solicitors for the UVCG wrote to RDP seeking disclosure of all accounting books and records of Mr and Mrs Thomas from May 2006 to date. They explained that their request included any profit and loss accounts, management accounts, cash flow and balance sheets and all tax returns. They stated that RDP had not disclosed these documents to support the claim to prejudice to Mr and Mrs Thomas. They added that they would apply to the court for an order for disclosure if they did not receive a satisfactory reply to the letter.

On 25 August 2009, Mr Atherton emailed Mrs O’Connor and Mr Albutt commenting that, in his opinion, all that was required to demonstrate financial prejudice was proof of expenditure i.e. receipts. He suspected the solicitors for the UVCG wanted copies of trading and profit and loss accounts so that they could obtain a valuation of the business hoping to provide evidence that NPA’s valuation (which had been disclosed by the NPA) was too high. That, he said, went to the potential compensation claim and not the issue as to delay and prejudice. Mr Atherton then commented on the state of the accounts kept by Mr and Mrs Thomas. He suggested that their business involved the receipt of a lot of cash and they had not kept accurate records so that the value of the “new and growing” business would be very difficult to substantiate.

Later on 25 August 2009, Mr Albutt advised by email on the request for disclosure of accounting documents. The request for disclosure was not supported by any reasoned justification for it. The first thing to raise with the UVCG was that the Thomases were willing to cooperate but required justification. His guess was that they wished to undermine the Thomas’ prejudice and hardship case by showing that perhaps they had made a substantial profit out of a planning permission which would not have been granted. Alternatively, they might be seeking to demonstrate that the Thomases were in some way dishonest and this was part of a continuing theme. He asked whether the information they sought was readily available. It might be that it related to valuation issues (as Mr Atherton had suggested). Overall, it was a request which the Thomases would have some difficulty in resisting. He then said:

“After all, we have raised, and properly said, the issue of income expenditure hardship financial or otherwise. They obviously wish to undermine what perhaps they now perceive is a strong case on prejudice.”

He ended by advising that Mrs O’Connor should write to the solicitors for the UVCG as he had indicated; then we could review the position when we had some answers to his question as to why the material was sought.

Mrs O’Connor duly wrote asking that question the next day, 26 August 2009. The solicitors for the UVCG replied the same day, saying that Mr and Mrs Thomas had said that quashing the planning permission would cause prejudice and the information was needed to ascertain the degree of any prejudice. The information would also show the rate of occupancy and whether the limit of 50 caravans had been exceeded. They also said that they wished to see documents to support the claimed expenditure. Mrs O’Connor sent that reply to Mr Albutt by email that day. She said that the information requested was not readily available and she would have to get it from the accountant. She said that she was taking the next week off, so if it could be compiled while she was away it could be sent on her return.

The following day, Thursday 27 August, Mrs O’Connor spoke to Mr and Mrs Thomas. She said that the UVCG had now requested documents relating to accounting records from May 2006 to date. She read the UVCG’s solicitors’ letter to them. She said that in her opinion the request had nothing to do with the UVCG’s case, which was all to do with quashing the grant of planning permission. This opinion was plainly wrong. Mr and Mrs Thomas’ case was that they would suffer prejudice if the planning permission was quashed. Mr Thomas’ witness statement referred to the income from the site and the expenditure on the site. The documents requested went directly to this case and this evidence. I comment that Mrs O’Connor’s opinion was not based on what Mr Albutt had advised. In his email of 24 August 2009, he had correctly speculated as to the relevance of the documents sought and he had advised that Mr and Mrs Thomas would have difficulty in resisting their disclosure.

Mrs O’Connor’s advice was particularly unfortunate in view of what Mr and Mrs Thomas then said to her. They told her that they were not happy to disclose the documentation which was substantial in nature and would cause substantial costs to be incurred to supply. Mrs O’Connor confirmed that the evidence from the UVCG was due by 11 September 2009 and said they would consider the request thereafter. She also said that there needed to be a conference with counsel in September to consider the case generally. No such conference took place. As it happened, the requested documents never were provided to the solicitors for the UVCG. I consider that the reasons for that included the facts that Mrs O’Connor wrongly thought that the documents were not relevant and Mr and Mrs Thomas did not want to disclose them.

On 28 August 2009, the NPA served a detailed witness statement from Mr Ashton. He had been shown the witness statements of other witnesses, in particular, the witness statements of Mr and Mrs Thomas and Mr Bevan. He disagreed with a large number of statements which they had made in their witness statements. In particular, he said that he had instructed Mr Bevan to prepare the planning application on behalf of Acorn but not to submit it. Mrs O’Connor rightly regarded this statement as “bad news”.

On 28 August 2009, the solicitors for the UVCG emailed Mrs O’Connor pressing for disclosure of the Thomases’ accounting books and records. Mrs O’Connor replied saying that the request for disclosure was being considered and anyway disclosure would take some time.

On 31 August 2009, Mr Albutt emailed Mrs O’Connor in relation to the request for disclosure. He said that it would be a little difficult to resist the request although the request to see the accounts was somewhat of a fishing expedition. If he wished to know about specific costs then he could identify the relevant items. Mr Albutt then stated none of this would come to light until next week when the Thomases had obtained the necessary information and the matter could be discussed further. He commented on Mr Ashton’s witness statement.

On 3 September 2009, Mr Davies visited Mr and Mrs Thomas. Mrs Thomas’ had prepared a note before the visit and she had written, in relation to the request for disclosure from the solicitors for the UVCG: “Disclosure of our finances – not on.”

On 7 September 2009, Mrs O’Connor emailed Mrs Thomas, saying:

“Can you dig out (or have you … ?) all accounting books and records to include profit and loss, management accounts if you have, cash flow, balance sheets and HM revenue and customs returns from May 2006 to date.

I need to go through with Counsel and then we will make a decision on what is to be disclosed to the Claimants. Can you let me know time-scale.”

Also on 7 September 2009, Mrs O’Connor emailed Mr Albutt to say that she was meeting Mr and Mrs Thomas the next day to receive the documentation of which disclosure had been sought. This gave the impression that the documents had been collected and would be available the next day.

On 8 September 2009, Mrs O’Connor spoke to Mr Albutt and dealt with a number of matters which had arisen. He advised that it was difficult to resist the request regarding the accounting documentation. Mrs O’Connor said that she was seeing Mr and Mrs Thomas the next day and had asked them to bring in all the documents they had. Mr Albutt then said that the UVCG

“… are clearly trying to show that our clients have made a considerable profit out of the caravan park and we need to show that they have invested substantial amounts and are simply doing alright at the moment. If there is a loss it will obviously help. Ian expects in view of the substantial expenditure of the caravans for there to be a loss for the first few years.”

Mr Albutt also advised that Mr and Mrs Thomas were at risk on costs if they lost and he said that a conference was required as soon as possible.

Mrs O’Connor then spoke to Mr Thomas and said that she needed copies of accounts from May 2006 to date. Mr Thomas confirmed that he would contact Mr Gwillim to arrange for these to be sent. However he did not think that Mr Gwillim had prepared accounts from 2008 onwards. He said that he did not see why they should “roll over for the objectors”. He confirmed that he would go through the documents that he had at home and bring them in to Mrs O’Connor the next day. Shortly afterwards, Guilfoyle Sage faxed to Mrs O’Connor draft accounts for the year ending 30 September 2007.

Also that day, RDP emailed the solicitors for the UVCG asking them to disclose the advice that the UVCG had received from counsel in the past about the possibility of a judicial review. This led to the disclosure of the advice from Richard Glover dated 28 June 2006 (referred to in paragraph 34 above), and two advices by email from Jonathan Milner dated 20 January 2008 and 4 March 2008 (referred to in paragraphs 50 and 52 above).

The next day, 9 September 2009, Mrs O’Connor sent a note to Mr Davies saying she had received confirmation from Guilfoyle Sage that the most recent accounts available were those for 2006/2007. There was also some issue in respect of the tax returns which were submitted on an estimated basis until the accounts were completed. She had a copy of the most recent accounts which showed a loss. She asked Mr Davies if he thought that the accounts should be prepared as soon as possible “in case we end up with the permission being quashed or discontinued looking at compensation?” Mr Davies replied the next day saying the accounts should be brought up to date immedately.

On 9 September 2009, Mr Albutt emailed Mrs O’Connor reminding her of her statement that she was to be provided with the accounts that day and that a decision had to be made in relation to them. She replied by email to say that she had the draft 2007 accounts which showed a loss. Those accounts had not been finalised and none further prepared. She had contacted the accountants who confirmed this. She sent the draft 2007 accounts to Mr Albutt the next day.

On 10 September 2009, Mr Albutt emailed Mrs O’Connor to say that the draft 2007 accounts did not seem to demonstrate expenditure, although accounts did not lie within his expertise. He then said:

“I take the view that the request for all this financial information is just far too wide ranging and in any event these accounts are in draft and there appear to be no others. Can the accountants be asked to identify major infrastructure costs? I take the view that a great many of the UVCG requests are just a time wasting exercise.

…

This leaves two issues, the first, is the wide ranging request for financial information although essentially it seems to me that it relates to infrastructure costs. I am quite happy that we should provide accounts, such as we have, although I doubt that they will answer the Claimants questions.”

With his email of 10 September 2009, Mr Albutt provided a draft letter which contained the following:

“First, the question of your rather wide ranging and somewhat unfocused request for financial information relating to costings and accounts.

…

We have already indicated that we are content to provide that information and on the advice of counsel we are specifically instructed to require you to tell us the details of expenses or expenditure you seek. As you will appreciate judicial review proceedings are not an exercise involving a fishing expedition. Frankly, a request for wide ranging financial information, is simply not good enough in an administrative law context. Please inform us of the specific items of expenditure etc. you require.”

On 11 September 2009, Mrs O’Connor emailed Mr and Mrs Thomas advising that their accounts should be brought up to date as soon as possible and that they should instruct Mr Gwillim to do so. She also sent the letter as drafted by Mr Albutt to the solicitors for the UVCG.

Also on 11 September 2009 Mrs O’Connor sent an email to Mr Albutt, seeking advice on possible orders as to costs. She knew that Mr Albutt was then on holiday in Helsinki and she asked for his comments on his return. She said:

“For us to be unsuccessful my understanding is that the Claimants would have to show that the permission was fraudulently obtained by Mr & Mrs Thomas (which we do not believe they can). If this was however proved then there would be no award of compensation for Mr & Mrs Thomas and they would bear any costs award in favour of the Claimants.

Alternatively I understand that there is a slim possibility that the Judge could decide that this planning permission is so odd that it should not have been granted in the first place and could therefore quash the permission in any event. In this instance I understand that (on the presumption that there was no wrongdoing from Mr & Mrs Thomas) the clients should be paid compensation for the quashing of the permission. What happens on costs? If the usual costs follow the event applies then Mr & Mrs Thomas should pay the Claimants costs but in a case where they would be in effect compensated for loss of the permission through no fault of their own that seems harsh.”

In the penultimate paragraph she said:

“You will obviously appreciate that costs are a concern for Mr & Mrs Thomas who are privately paying for this action. Whilst they had no option but to fight the action (and everything to gain, as opposed to lose everything if they did not become involved) I do need to be absolutely clear with them of the possibility (however slim) of any costs award being made against them which you will appreciate could be absolutely catastrophic for them.”

Mr Albutt immediately replied from Helsinki saying:

“Thanks Liz. Back on Sunday night and will deal with matters on a priority basis. Their concerns are understandable.”

At around the same time, Mrs O’Connor emailed Mr and Mrs Thomas setting out the same understanding of the costs position. She said she thought it was important to get clarification from counsel in the light of the further exchange of evidence to ensure his opinion had not changed and he was still happy they were following the best course of action to fully protect themselves on costs. She added that they did not have any choice in becoming involved in the proceedings because of the neutral position adopted by the NPA.

Also on 11 September, the court sent RDP an order of HHJ Jarman QC of that date permitting the UVCG to rely on a Statement of Additional Grounds, which related to the application to quash the November 2008 decision.

On 14 September 2009, Mr Albutt who was then back from Helsinki, emailed Mrs O’Connor. His email included the following:

“I have not forgotten about advising on the issue of costs generally with regard to Mr and Mrs Thomas and will do so soon.”

Mrs O’Connor gave evidence that she had no recollection of Mr Albutt advising on the issue of costs in that week or indeed the week after that. She referred to a discussion she had with him on 29 September 2009 when he said that he appreciated that costs were a matter of concern for Mr and Mrs Thomas.

Conversely, the following facts are pleaded in the Defence at [143]:

“On Sunday 13th September 2009 Mr Albutt returned from Helsinki. During the week commencing 14th September he worked in chambers. During that week he had e-mail exchanges with and spoke to Ms O'Connor on a number of occasions. During one conversation (and Mr Albutt cannot currently recollect when the conversation took place), Mr Albutt informed Ms O'Connor that the suggestion in the e-mail she had sent on 11th September at 11:39 that the Claimants would be paid compensation if the Permission was quashed was wrong, and that there was no basis for the payment of compensation if the Permission was quashed”.

Mr Albutt gave oral evidence confirming these matters. He said that he was quite clear that in a conversation with Mrs O’Connor at this time, he had corrected her mistaken belief that compensation could be payable in the event that the planning permission were quashed, if there were no wrongdoing by Mr and Mrs Thomas.

There is no contemporaneous note of any kind which indicates that such a conversation took place either at the time pleaded, or at any time. I am not able to accept Mr Albutt’s evidence in support of paragraph [143] of the Defence. The contemporaneous documents show that Mr Albutt did not deal with the content of the email of 11 September 2009 in any way prior to certain conversations which took place between Mrs O’Connor and Mr Albutt on 29 September 2009. Even then, those conversations did not explicitly refer to the email of 11 September 2009. I find that Mr Albutt did not give advice to Mrs O’Connor at any time before 29 September 2009 as alleged in paragraph [143] of the Defence. I will in due course make my findings on the conversations of 29 September 2009.

Also on 14 September 2009, the solicitors for the UVCG wrote to RDP stating that the disclosure they had requested had not been provided.

On 18 September, Mrs O’Connor spoke to the solicitors for the UVCG. On the subject of financial disclosure by Mr and Mrs Thomas, Mrs O’Connor referred to her earlier letter to them. She said until she received a response to that letter she was not going to incur the expense of preparing a whole host of information which was highly likely not to be relevant in any event. That afternoon, she emailed Mr and Mrs Thomas asking them urgently to provide their records to the accountants so that they could start to get the accounts up to date. She added:

“The Claimants will be seeking to show that you have benefited financially from a planning permission which should never have been granted – we will presumably be able to show that whilst the Park is making some money it is going towards reducing the borrowings and your legal fees no doubt!”

On 21 September 2009, the UVCG served four witness statements in response to those served by the NPA and Mr and Mrs Thomas.

On 22 September 2009, Mrs O’Connor spoke to Mrs Thomas asking her to provide documents showing the expenditure and income for the caravan park. She said this was needed to ensure that the court did not think they were trying to hide anything. Mrs Thomas later that day told Mrs O’Connor she had asked the accountant to deal with the accounts.

Also on 22 September 2009, the solicitors for the UVCG emailed Mrs O’Connor saying that at a pre-trial review due to take place on 5 October 2009, they would be seeking an order for disclosure with regard to the financial information they had requested. They said:

“ … this is not a fishing expedition, your case is that your clients will suffer prejudice if the permission is quashed due to the delay. Mr Thomas has stated in his witness statement that the caravan site has an income of £10,000 per week but no evidence had been produced to substantiate this income, likewise no evidence had been produced to substantiate your clients expenditure. This evidence is required in order to verify the extent of any loss to your client (if any).”

Mrs O’Connor forwarded this email to Mr Albutt saying:

“On the financial information I think that an application is completely unnecessary and a waste of costs in view of the fact that we have told them that we will provide the information. The response does not really assist us that much as I don’t know what items of expenditure they want us to prove. The Thomas will have all of their receipts so I cant see this is a problem but you will recall that there were several hundred entries of expenditure in a table attached to Geraint’s statement.”

Mrs O’Connor also forwarded the email to Mrs Thomas asking her to confirm that she had now provided the books to the accountant and for copies of all receipts for expenditure (as per the list attached to Mr Thomas’ statement). She said that they also needed to evidence income. She asked if Mr and Mrs Thomas had the books and bank statements showing the money coming in. She added:

“I think we need to move on with this now to show that we are not hiding something sinister and I do not want the Court having to order it as the Judge will take a dim view of us!”

On 23 September 2009, Mrs O’Connor emailed Mr Atherton (with a copy to Mr Albutt) to say that she was still waiting to hear from Mr Albutt as to the possibility of an order for costs against Mr and Mrs Thomas. That indicates that, by that date, Mr Albutt had not advised on the questions raised in her email to him of 11 September 2009. She said to Mr Atherton:

“In regard your comments that an adverse costs order would render the Thomas bankrupt, whilst I am not going to speculate I have as you know asked Ian for further advice on this point and await his response. My understanding throughout these proceedings is that it is not something we have to be unduly concerned about because the reality of the situation is there is no evidence to suggest Mr and Mrs Thomas have acted improperly/committed any fraud, the timing of the JR is substantially delayed and the prejudice that would be caused would be immense for Mr and Mrs Thomas. If however, Ian suggests that the prospects are in favour of the Claimants as opposed to very slim then for obvious reasons we would advise the clients to take a commercial decision in going forward to get them out of the proceedings as cost effectively as possible. If we thought the consequences were going to be catastrophic it would be irresponsible to advise to the contrary.”

On 25 September 2009, Mrs O’Connor spoke to the solicitors for the UVCG about their request for financial disclosure. The solicitors said they wanted evidence of the items of expenditure in Mr Thomas’ statement and of the income of the caravan park. Mrs O’Connnor told them that she had been supplied with a huge bundle of receipts and as yet had not even considered starting to go through it. They agreed it would be more cost effective for the solicitors for the UVCG to attend the offices of RDP to go through the receipts. In regard to the other information, Mrs O’Connor said:

“ … unfortunately the accounts were not up to date and I will confirm in due course when we could expect to receive new information from the accountants.”

On 25 September 2009, Mrs O’Connor emailed Mr Albutt explaining the position. She expressed exasperation with the solicitors for the UVCG and then said:

“The current situation is that they are considering their position regarding an application against us for financial information. I have bottomed it down and they have confirmed that they require invoices/receipts proving expenditure (these have been delivered to my office today) and proof of the 10k per week the Caravan Park is making. I am liasing with the accountants and have told them I will revert as soon as I can”.

On 27 September 2009, Mr Albutt emailed Mrs O’Connor apologising for the fact he had been away on a very heavy inquiry the week before which left him no time to respond and saying they would speak the following Tuesday. I find that by this date, Mr Albutt had not responded to the request for advice in Mrs O’Connor’s email of 11 September 2009.

On 28 September 2009, Mrs O’Connor wrote to the solicitors for the UVCG to explain when she would provide to them evidence as to expenditure and as to income. They replied the same day saying that it was essential to ascertain the precise nature of the income.

On 28 September 2009, the UVCG sent to Mrs O’Connor the written submissions prepared by their counsel. Mrs O’Connor sent them to Mr Albutt. These submissions were 74 pages long and 12 pages dealt with delay, prejudice and hardship. Amongst the many points raised, the UVCG analysed in a critical way the evidence in Mr Thomas’ statement as to expenditure and as to income. The submissions said that the UVCG awaited disclosure of financial information from Mr and Mrs Thomas.

On the following Tuesday, 29 September 2009, Mr Albutt spoke twice to Mrs O’Connor on the telephone. These conversations covered a large number of points. I will summarise what was said, first, as regards the overall position, secondly as regards financial disclosure, thirdly as regards costs and fourthly, as regards compensation.

As to the overall position:

As regards the request for financial disclosure, Mrs O’Connor told Mr Albutt:

In relation to costs, Mrs O’Connor noted that Mr Albutt had not confirmed in writing his thoughts as regards costs. That seems to have been a reference to the request for advice in her email of 11 September 2009. The note might be read as suggesting that Mr Albutt might have dealt with the matter otherwise than in writing but it seems to me more likely that Mrs O’Connor was simply saying that she was still waiting for Mr Albutt to advise on the question of costs. Mr Albutt dealt with this request by commenting on the prospects of success and the absence of any attractive alternative to fighting the case, as I have described above. He referred to there being a low risk in relation to costs but he added the further comments about the difficulty of predicting what would happen next.

As to compensation, Mr Albutt referred twice to the possibility of the planning permission being quashed and in each case he referred to it being quashed without compensation. There is no suggestion in the note that Mrs O’Connor reminded Mr Albutt of how the matter had been put in her email of 11 September 2009. She did not refer to that email and her note does not suggest that she repeated what she had said in the email. The conversation took place more than two weeks after the email and dealt with a large number of matters arising in the litigation.

In view of the above findings as to the conversations on 29 September 2009, I do not think that Mr Albutt could be understood as agreeing with the way matters were put in the email of 11 September 2009. As regards the statement in that email that there was a possibility that the planning permission might be quashed with compensation, he did not say anything in the conversations on 29 September 2009 which could be understood as supporting that statement. As regards the statement in the email that there was only a “slim” possibility of the planning permission being quashed, he said a number of things about the prospects of success which were not the same as saying that overall there was only a “slim” possibility of the permission being quashed.

During the conversations on 29 September 2009, it was agreed that a scheduled conference should be cancelled as there was too much to do and too little time to fit in a conference.

On 1 October 2009, the solicitors for the UVCG enquired of Mrs O’Connor of the position in relation to the financial disclosure. On 2 October 2009, she replied and arranged for those solicitors to attend the following Wednesday to consider the evidence as to expenditure. In respect of income, she told the solicitors that the accounts were not currently prepared to date and were being updated in view of the request for disclosure. “You will however appreciate that we are reliant on preparation of these accounts by Mr & Mrs Thomas’ accountants and as such we await their advice in regard finalisation of the accounts. We will obviously keep you updated in this regard.”

On 5 October 2009 there was a pre-trial review of the claim before Silber J when he gave directions. On the same day, on the recommendation of Mr Albutt, RDP instructed Anthony Porten QC to appear for Mr and Mrs Thomas at the trial. He was not instructed to advise on the merits, and did not do so. However, he expressed the view that Mr and Mrs Thomas had “a good case”.

On 7 October 2009, Mrs O’Connor emailed Mr Albutt and said that she was liaising with Mr and Mrs Thomas’ accountants and hoped to be able to tell the solicitors for the UVCG shortly as to when the accounts would be available. She also said that those solicitors were attending her offices to inspect the receipts relating to the expenditure referred to by Mr Thomas.

On 8 October 2009, Mrs O’Connor had a meeting with Mr and Mrs Thomas. They discussed four possible outcomes in the litigation. The first two involved the planning permission being quashed and the last two involved the planning permission not being quashed. The first possibility was that the permission was quashed, there was no compensation and costs were awarded against Mr and Mrs Thomas. This was described as “the absolute worst scenario”. The second possibility was that the permission was quashed, an order for costs was made against Mr and Mrs Thomas but compensation was awarded, although Mrs O’Connor said the risks of this were slim. After referring to these two possibilities, Mrs O’Connor’s note referred to there always being a litigation risk but that was thought to be “slim in all probability”. Her note confirms that Mr and Mrs Thomas confirmed that they understood what they were being told and they were aware there was “a risk”.

This discussion on 8 October 2009 tends to show that Mrs O’Connor did not have a specific discussion with Mr Albutt about her email of 11 September 2009. At all times, Mr Albutt was very well aware that if the planning permission was quashed there would be no question of compensation being payable to Mr and Mrs Thomas. He knew that it did not matter in this respect whether the planning permission was quashed by reason of their wrongdoing or for any other reason. I consider that it inevitably follows that he could not have advised Mrs O’Connor that that was the position. However, the advice which she gave on 8 October 2009 indicates that Mr Albutt’s pleaded defence (see [143]) and his oral evidence in support of it cannot be right. If Mr Albutt had explained to Mrs O’Connor that her email of 11 September 2009 was wrong in this respect, then I cannot see that she would have given the advice which she gave on 8 October 2009. I find that what happened was that Mr Albutt did not deal with the email of 11 September 2009 at any time. He was reminded by Mrs O’Connor on 29 September 2009 that he had still to advise on the question of costs and he then did so in the way I have summarised above. During those conversations he did not say anything which could be interpreted as advice that there was a possibility that the planning permission could be quashed so that compensation would be payable to Mr and Mrs Thomas.

On 9 October 2009, the solicitors for the UVCG confirmed they would visit RDP to look at the documents which evidenced expenditure. They then indicated that they would not be attending but were extremely interested in the documents as to the income from the site. Mrs O’Connor informed Mr Albutt of the position, saying:

“I have written to the accountants urgently and asked them to confirm the position in writing to me by return so that I can supply a copy to this letter to all parties showing that we are doing everything in our power to get the accounts up to date. Unfortunately some people presumably have work other than Gilestone!”

On 9 October 2009, Mr Porten and Mr Albutt filed their skeleton argument with the court.

On Sunday 11 October 2009, there was a one hour consultation with Mr Porten to give Mr and Mrs Thomas an opportunity to meet Mr Porten.

On 14 October 2009, the solicitors for the UVCG came to RDP’s offices and looked through the documents evidencing expenditure on the site. The solicitors said they wanted proof of income and would be applying for Mr Thomas’ evidence to be excluded in relation to income. Mrs O’Connor then emailed the solicitors attaching a letter from the accountant and said:

“As you will note they are processing the 2008 accounts and anticipate the accounts being in draft format in one week. In regard comments made by your Mr Evans earlier today, we are not in a position to deal with this any quicker than is currently outlined. The Accountants are aware of the urgency and working as speedily as possible. If any application is made to strike out any part of my clients’ evidence reserve right to draw this correspondence to the Court.”

On 15 October 2009, the solicitors for the UVCG emailed Mrs O’Connor to ask what the income was from the site for earlier years. Mrs O’Connor replied saying she was not in possession of any of the draft material and she had contacted the accountants to ask the appropriate questions.

In the event, at the trial, there was no information as to the income from the site apart from what was stated by Mr Thomas in his witness statement.

The trial started on Tuesday 20 October 2009 before Ouseley J and finished on Thursday 22 October 2009. On the first day of the trial, the UVCG withdrew the fraud allegation, after Ouseley J had made it clear that, if persisted in, he was provisionally minded to make an indemnity costs order. At the end of the hearing, judgment was reserved.

When she gave her evidence at the present trial, Mrs O’Connor confirmed to me that by, the time of the trial before Ouseley J, she fully understood that if the planning permission was quashed, for whatever reason, then no compensation would be payable to Mr and Mrs Thomas. I can only speculate as to when and how Mrs O’Connor became aware of that; she does not appear to have been aware of it as late as 8 October 2009. It is possible that Mr Albutt did, as he seems to remember, explain it to her at some point or it is possible that she at last worked it out for herself. However, there is no sign that she told Mr and Mrs Thomas that the advice she had given them on 8 October 2009 was wrong in this respect.

On 19 January 2010, Ouseley J released to the parties a draft of his intended judgment. The result in the draft judgment was that the planning permission was to be quashed when the judgment was formally handed down, which was due to take place on 27 January 2010.

On 20 January 2010, Mrs O’Connor told Mr and Mrs Thomas the result in the draft judgment. She told Mr Albutt that they were devastated. He said that he was shocked by the result.

On 21 January 2010, Mr Porten emailed Mr Albutt saying:

“Prospects of appeal: on my initial reading of the judgment I doubt that there are sufficiently good prospects and there would be the risk of another huge costs bill. The Judge has made numerous findings of fact which the CA would not disturb. I am particularly frustrated and disappointed by the way in which the Judge dealt with the issue of promptness (para. 133)– in my view he should have reconsidered the decision to allow an extension of time: in para 134 he attributes thought processes to Wyn Williams J that I think are wholly fanciful. The result is that he puts the onus on us to show hardship or prejudice: our evidence on this point was so inadequate that he finds against us – the lack of useable accounts, tax returns or the like led him to another rather fanciful assumption that the Thomas’s had made profits that covered their costs. I am afraid that there were aspects of the case where the combination of the clients exceeding what on any view the planning permission allowed plus their inability to give coherent explanation of their finances unfortunately told heavily against us”.

Mr Albutt replied to Mr Porten’s email, saying that he agreed.

Also on 21 January 2010, Mrs O’Connor spoke first to Mr Albutt and then to Mr Thomas. Her file note says:

“I expressed Ian’s shock and disbelief at the Judgment. … Ian was very sorry about the Judgment as he had formed the view that we would be successful in the Trial. Geraint advised that Ian should be sorry as they were now on course to lose everything. LOC stopping Geraint at that point and telling him that Ian had not done anything wrong and that as Geraint and Christine had expressed on many occasions everything that had been done was in the best interest of the case, the case could not have gone any better and frankly the Judge’s decision was beyond the barrister’s comprehension. It was clearly nobody’s fault the Judge had come to his decision and it was just an unfortunate ending to the litigation. It could not have been predicted save for that there was always a litigation risk that Christine and Geraint were both well aware of. ”

On 27 January 2010, Ouseley J handed down his judgment in accordance with the earlier draft judgment. I will refer to this judgment of Ouseley J in detail in a separate section of my judgment.

On 2 February 2010, Mrs O’Connor spoke to Mr Thomas. He said that he understood that the Judge would consider the issue of compensation again. Mrs O’Connor stated that she did not know where they understood that from but the Judgment was quite clear that no compensation was to be awarded for the quashing of the planning permission. Mr Thomas was annoyed because that had not been his understanding.

On 3 February 2010, Mr Albutt advised Mrs O’Connor on the telephone on the prospects of appeal, costs, and on an alternative option. As to an appeal, there were not good prospects of success. An appeal would be expensive and he discouraged it. The alternative option was based on the principle of legitimate expectation which he had referred to in his written opinion in February 2007. He said that there was a legitimate expectation that Mr and Mrs Thomas would be granted a planning permission. A fresh application could be made for some use of land. This would enable the Thomases to continue to operate for as long as possible, appealing if necessary if permission was refused. His conclusion was that an appeal to the Court of Appeal was to be discouraged, but the legitimate expectation argument had a prospect of success.

On 5 February 2010, Mr Atherton wrote to Mr Thomas. He said he understood that Mr and Mrs Thomas were unlikely to appeal but, following advice from others, they proposed to re-open the site in March and apply for planning permission for retention of it in some form. He explained what this would involve, and his opinion of what could be applied for, namely the Hooker Proposal, which he said would mean they would lose very little of what they already had. Such an application would need to be supported by an environmental statement and a flood consequences assessment and a new planting scheme.

In the event, in view of their financial position, Mr and Mrs Thomas felt that they had no alternative but to put the farm on the market for sale.

On 11 February 2010, Mrs O’Connor emailed Mr Albutt saying:

“The reality is that they have simply had enough of the fight, and although the legitimate expectation argument sounds marvellous in theory, it will undoubtedly bring with it another year or so of fight, stress and costs, and I don’t know if they are up for that”.

On 18 February 2010, Ouseley J heard submissions on matters consequential on his earlier judgment. He made an order quashing the planning permission. As to costs, he ordered Mr and Mrs Thomas to pay the costs of the UVCG in respect of 1½ days of the final hearing costs and 15% of the remainder of the UVCG costs.

The Atherton Application was in due course effectively dismissed because Mr and Mrs Thomas did not provide the Environmental Impact Assessment required by the NPA.

The NPA then threatened, and applied for, an injunction to prevent the site from reopening. Mr and Mrs Thomas were advised by RDP not to oppose this application.

On 12 April 2010, Mr Porten wrote to Mrs O’Connor saying their best course would have been to pursue the re-determination of the quashed permission and make a case for a better defined and more modest permission.

On 25 October 2010, Mr and Mrs Thomas completed the sale of the farm. They purchased a smaller farm, namely, Bargoed Farm, Aberaeron, Ceredigion for £1m.

The costs payable by Mr and Mrs Thomas to the UVCG pursuant to the order of Ouseley J made on 18 February 2010 were subsequently agreed at £102,500 and this sum was paid by them on 3 October 2011.

I will describe in some detail the matters considered and decided by Ouseley J.

The judgment proceeds as follows:

Having held that the permission was invalid the judge then addressed, at [131] to [161] questions as to delay and prejudice. Mr and Mrs Thomas had contended that the court should not quash the permission because there had been excessive delay in the commencement of the judicial review proceedings and because of the prejudice which would be caused to them if the permission were quashed.

At [131], the judge described how a decision not to quash the planning permission would involve detriment to good administration; he said:

“The planning process should not have failed so badly in so many ways on an important application or permission in a National Park.”

At [132], the judge summarised the question which arose in these terms:

“132 So, the question is whether the claimants, and the public interest more generally, should suffer the consequences of the unlawful decision with the undoubted impact which its lawful exploitation has and would continue to have, or whether the Thomases should suffer the detriment and prejudice which its quashing would bring. Relevant factors include the length of delay, who was responsible for its length and in particular whether the NPA or the Thomases were responsible, the degree to which it is the quashing or the delay which causes the prejudice, and whether the court granting the extension was misled in any way by the claimants.”

At [134], the judge did not accept a submission made on behalf of the Thomases that Wyn Williams J had been misled in a particular respect when he granted to the UVCG an extension of time and permission to seek judicial review. He commented that he had not seen any note of the judgment given by Wyn Williams J and he added:

“Permission was not confined to the new grounds relating to the defects in the application. Sufficient may have appeared to have gone wrong, albeit some years ago, to warrant an examination of the legality of the permission and the prejudice which quashing it might cause. The newer allegations may just have been part of a whole chain of events and allegations which warranted the extension of time and the grant of permission to apply for judicial review. So I reject this point.”

The judge then considered the evidence as to delay on the part of the UVCG and held at [142] that it was guilty of delay at various stages in the history before commencing the judicial review proceedings.

At [144] to [154], the judge addressed in detail the Thomases’s case that they would suffer financial prejudice if the permission were quashed. In view of some of the detailed allegations made against Mr Albutt, I will now set out those paragraphs:

“144 It is the delay which causes much of the prejudice asserted from a quashing, rather than the simple fact of quashing because of the expenditure which the Thomases incurred after the grant. In my view, the claimants’ delay is a weighty factor in the balance against them.

145 By contrast, submitted Mr Porten, the Thomases had been investing in the caravan and camp site since the grant of permission on the basis that it was valid and one that they could rely on. This substantial investment would not have been made had there been a prompt challenge to the grant. Mr Thomas’ evidence was that they had spent £2200 on tourist signs, £3500 on legal fees in early 2006 relating to the lease to Acorn after the grant of permission, £2819 as a deposit on the utility or toilet and shower block (but he does not say whether that payment was recovered or used again), £22000 in 2006 on the sewage treatment plant to go with the utility block, £1920 on the application for permission for this block, £14500 costs which he was ordered to pay to the Community Council and Conservation Group when at the last minute he withdrew the appeal in December 2006 and decided to rely on permitted development rights, £5000 on legal fees in threatened proceedings in March 2007 against the NPA for telling the Caravan Club, which told its affiliates, that the site could not lawfully be used for caravan rallies, £15000 on legal and planning fees in what proved to be abortive negotiations with the NPA in November 2007 for a fresh planning permission and s.106 agreement to replace the permission at issue here. The largest items of expenditure were incurred in March 2006 when £35000 was spent on temporary shower and toilet facilities, and £22795 on tarmacing the access lane, and further sums on drainage, landscaping and fencing. Something over £60000 appears to have been spent in 2006 on electrical works. He had spent over £200,000 by June 2008 on the permanent utility block, and achieved a four star rating for the campsite from the Welsh Tourist Board. The site also obtained first a temporary and then a permanent licence for the sale of alcohol. Raising money to pay for all of this, with a failing farm business, meant that he had had first to sell a significant amount of his farm machinery, and then in Spring 2009 to sell 150 head of cattle and to put 150 acres on the market. Local hostility, which he attributed much to a dislike by some residents for the “good honest working class”campers, had led to an arson attack on his farm, malicious complaints, the harassment of his children at school, and a great deal of stress and anxiety for the whole family.

146 Mr Thomas produced a schedule of the money he had spent on developing Gilestone Farm since June 2005, including revenue costs such as advertising, printing and repairs, as well as capital expenditure. I could not work out from it what was spent on the utility block. Mr Thomas gave no breakdown of this expenditure between what was necessary for the development permitted by the June 2005 permission, and what was necessary for the larger scale and year round use which photographs show clearly taking place and which he did not deny. He appears to have taken the view that he had existing lawful use rights generally available outside the red edged land, which condition 7 on the grant of permission did not remove, and that other permitted development rights enabled him to build the utility block and tarmac the lane. These are disputed points of view.

147 I am prepared to assume that none of that expenditure would have been incurred had the 2005 permission not been granted, with the consequences which were thought to flow in terms of permitted development rights, and that it is all potentially wasted expenditure if the permission is quashed. This may be a generous assumption.

148 Some of it, as Mr Davies submitted was the case, may have been to support an unlawful use, or to have been for an unlawful building and operational development even if the permission for the change of use had been lawful. Some was for development which the poorly drafted conditions intended to prevent. The £200000 plus spent on the utility block was the obvious example of both. The £1920 costs of the application for it and the £14500 costs of the withdrawn appeal cannot easily be regarded as wasted as a result of the quashing rather than because of the response of the Thomases to the changing stances of the NPA. The costs wasted in negotiating a lease with Acorn are just the hazard of development; negotiations failed in part at least because the parties in fact were a long way apart on the rent, whatever impression Acorn gave to the Thomases. It was also the Thomases’ decision, on advice, to incur costs negotiating an alternative permission.

149 Mr Thomas was justifiably criticised by Mr Davies, well foreshadowed by a specific request from the claimants for financial detail which went unanswered, for the absence of information in the form of tax returns or accounts showing the income and revenue costs of running the caravan/campsite. It was also one reason why the claimants wished to cross-examine Mr Thomas to which he objected; I could see no reason why Mr Thomas should be able to improve his case in cross-examination and I did not need cross-examination to see the flaws in what he had to say. The onlyinformation which Mr Thomas provided as to the income he made from the site was that he had received an income from it of £10000 per week from March to June 2009 when he made his witness statement. Mr Thomas also revealed that he had been full on the May 2006 Bank Holiday weekend and subsequent weekends. He appears to have had an annual income of about £12000 from caravan/campsite activities before 2005.

150 In my judgment, it is for Mr Thomas to demonstrate the hardship and prejudice which the quashing of the permission would cause him. That involves reasonably full and accurate financial disclosure to the Court. This has simply not occurred. There is no adequate evidence as to the income from the caravan/camp site, divided between what the permission permits, alleged consequential permitted development rights, and other activities which he says are not dependent on the permission, whether lawful or unlawful. The utility block probably serves permitted and unlawful uses indifferently, and to the extent Mr Thomas retains existing use rights, as he appears to believe, he will continue to receive income from their exploitation.

151 But even if one took £10000 a week for just 26 weeks a year for three years there would have been an income of £780000. That may over estimate the previous years’ income but it excludes 2006 entirely, and under-estimated the duration of permitted occupation. If one took half the 2009 figure for the two previous years, the total income would have been of the order of £520000. Mr Thomas does not even say whether the figure he quoted was gross income or income net of revenue expenditure. If the former, there are no doubt some wages, management and running costs to be deducted, but no evidence has been provided as to what they might amount to on an annual basis. In either event there is no basis upon which I could conclude that he had not received an income which within three years has covered the expenditure he has incurred and provided him with an income on top.

152 Mr Thomas does not condescend to provide information as to the number of caravans or tents which generate that income and it may include income from those who should not be there under the permission or at all, and from those whom Mr Thomas may believe can be there under lawful existing use or permitted development rights. It may or may not include unlawful caravan storage.

153 The paucity of the evidence provided by Mr Thomas, which is his choice, makes it impossible to accept that the quashing of the permission now would cause substantial hardship by wasting the expenditure he has incurred in implementing the permission and more. I have no alternative on the limited material he provided but to conclude that he has recovered the costs he has incurred, and has obtained an additional income from his caravan/campsite. Not merely has Mr Thomas failed to show any case on financial prejudice and detriment from irrecoverable past expenditure arising from the quashing of the permission, he has also shown no potential loss from any committed future expenditure. So if the permission were quashed, he would be returned to the position which he had previously enjoyed, without loss caused by wasted expenditure. That is an important consideration. From there he can start again, without unrecovered expenditure. He would be no worse off than he would have been before the grant of permission.

154 He has shown the prospect of future loss of income but without quantifying it at all, let alone explaining the amount attributable to the level of use permitted by the 2005 grant or its importance. I do not regard this possible future loss as weighty on the evidence Mr Thomas has provided. It does not suffice to show substantial hardship from quashing the permission.”

At [155], the judge said that no third party rights had been acquired in consequence of the grant of permission so that the prejudice and hardship were confined to the landowners.

At [156], the judge recognised that the Thomases had suffered some deplorable harassment but he decided that he would not give that any weight in the balancing exercise.

At [157], the judge held that Mr Thomas had been warned at an early stage that there were real doubts about the validity of the permission. The judge referred to statements made by the NPA in July and August 2006 to the effect that the permission was, or might be, unlawful. The judge also found that the Thomases spent £200,000 on the utitlity building knowing that there was some uncertainty about the lawfulness of their actions.

At [158] to [159], the judge considered the submission on behalf of the UVCG that the Thomases were wholly, or in part, to blame for the errors which led to the grant of the permission. The judge concluded at [159]:

“159 The largest part of the blame for the many errors of procedure must be borne by the NPA, in my judgment, which has the statutory duty to deal with the application. But there was an uncertainty, at least, at the heart of the application for which Mr Bevan, as the Thomases’ agent, was to blame, and which led to many of the problems. Mr Bevan was not clear as to what the application meant by the relocation of an existing facility in terms of scale or potential or capacity. He never spelt out the actual level of past usage, nor did the Thomases tell him nor did he enquire and pass on the information, at least so far as the evidence goes. They were all content for the NPA to make a judgment on what they must have realised was a quite erroneous basis as to the routine level of usage, confusing that with the intermittent rallies which had a different status because of permitted development rights, and leaving unclear the scale of the uncontrolled lawful use which they said existed, if it was greater than the actual level of use. Mr Bevan, in my view, chose how to describe the application to make it seem inoffensive, as the description of it did, and then he and Mr Eacock interpreted it as covering more than those innocuous words actually conveyed. Mr Bevan did that as agent for the Thomases for which they, as the beneficiaries of the grant, must share responsibility. I am satisfied, as well, that they personally were content to proceed without correcting what they knew was an error of appreciation by the NPA. So, personally and the more so through their agent, they bear part of the responsibility for the legal problems which have led to the invalidity of the permission. That weighs also in favour of quashing it.”

At [160], the judge referred to the relevance of a possible further permission or the possible exploitation of permitted development rights and he said:

“160 To my mind it is relevant that the quashing of the decision would not necessarily preclude some form of caravan and camp site being permitted, but it would enable a decision to be reached applying proper procedures. It is also relevant that a grant of permission in the present form would be far from a foregone conclusion, so relief would serve a purpose without excluding the Thomases from obtaining some beneficial permission. The grant of permission for a sizeable caravan and campsite in a National Park is very likely to generate debate about its impact on the interest which the National Park was set up to protect. There is a strong public interest both in the protection of a National Park and in proper decision -making on issues which are very likely to affect it, including the role of non-agricultural activities in supporting agriculture. That strong public interest must weigh in the balancing process which I have to resolve. If Mr Thomas supposes seriously that he has extensive existing rights, regardless of the permission, they will no doubt be exploited and reduce the lost income which I have assumed.”

At [161], the judge expressed his conclusion on delay and prejudice in these terms:

“161 In the end, I have come to the conclusion that the permission should be quashed. Mr Thomas’ evidence on hardship and prejudice is weak; he, or his agent Mr Bevan, was to some extent responsible for the errors which led to the grant. The claimants’ justification for their extensive delay in bringing a challenge on the grounds upon which they have succeeded is equally weak. What is decisive to my mind therefore is that the permission is invalid and should in principle be quashed in the absence of strong contrary reasons. These do not exist. Mr Thomas can start again seeking planning permission without wasting his past expenditure; but the public interest could not be protected, unless the use were discontinued. There is no adequate justification for making the public pay compensation if there is a strong case for quashing an unlawful decision. There are so many serious and basic errors in the procedure whereby the application was considered and consulted upon, that it would be seriously detrimental to public confidence in the proper operation of the planning system to let it stand.”

The judge therefore decided that the permission should be quashed. That meant that it was strictly unnecessary to consider the other challenges by way of judicial review to the NPA’s decision not to seek discontinuance of the use of the caravan site and its decision to take enforcement action for breach of the conditions in the permission. Nonetheless, the judge dealt with those other challenges. For this purpose, he made further findings as to the history of the matter. At [164] he said:

“164 It became apparent quite soon after the grant of permission that the activities went beyond the relocation of what had been seen by the claimants as a small scale and sporadic operation. These activities were all undertaken by the Thomases and not by Acorn at all. The scale of the development permitted became apparent and, it is reasonably clear, although not a matter for my decision, that there were, additionally, breaches of conditions on a significant scale; infrastructure in the form of buildings and roads was constructed, and camping and caravan use took place where it was not thought to be permitted. The cause of this and the responses of the NPA became fiercely contested. Complaints were made to the NPA. Local feelings against the Thomases ran high, and continue to do so. Breaches of planning control on a significant scale, going well beyond what the permission and its conditions if valid would permit, appear to continue.”

At [225], the judge considered the evidence as to the possible existence of a lawful existing caravan/campsite use outside the area covered by the permission. He held that the permitted development under the GPDO extended only a very low level of use, not exceeding 5 caravans or occasional days for rallies.

In the event, the judge held, at [247], that the permission was invalid and ought to be quashed, that the decision not to seek discontinuance of the use was flawed but only on somewhat narrow grounds.

In the Particulars of Claim, Mr and Mrs Thomas pleaded that Mr Albutt owed them a duty of care to advise them in relation to matters on which he was instructed to advise with the reasonable skill and care to be expected of a senior barrister specialising in planning and administrative law. That pleading was admitted in the Defence.

In these proceedings, Mr and Mrs Thomas contend that Mr Albutt was negligent in four respects:

I will consider these allegations in turn.

I will begin by identifying the advice which Mr Albutt is alleged to have given. In a pre-action protocol letter dated 7 March 2013, the solicitors for Mr and Mrs Thomas said the following:

“Mr Albutt’s consistent advice on the merits of the Claim was as summarised in Mrs O’Connor’s email to Mr Albutt on 11 September 2009:

(1)

If Mr and Mrs Thomas were found guilty of fraud, the Permission would be quashed with no compensation. However, this was very unlikely to happen.

(2)

If Mr and Mrs Thomas were not guilty of fraud, then the Permission would probably not be quashed, but there was a slim possibility that it would be, in which case Mr and Mrs Thomas would be paid compensation for the quashing of the permission.”

In the Particulars of Claim dated 20 September 2013, there is a similar, but not identical, allegation in these terms:

“The Defendant’s consistent advice on the merits of the JR Claim from January to October 2009, was as pleaded above, that:

(1)

If the Claimants were found guilty of fraud, the Claimants would lose the benefit of the Permission with no compensation. However, this was very unlikely to happen.

(2)

If the Claimants were not guilty of fraud, then the Claimants would very probably not lose the benefit of the Permission, but there was a slim possibility that they would, in which case the Claimants would be paid compensation for the loss of the Permission.”

It is clear that the allegation being made against Mr Albutt relies upon the way in which Mrs O’Connor expressed matters in her email of 11 September 2009. It is also clear that it is alleged that Mr Albutt gave this advice in January 2009 and on a number of occasions after that.

There has been a deliberate change in the allegation as pleaded in the Particulars of Claim in that it is no longer alleged that Mr Albutt advised that compensation would be paid following a “quashing” of the permission; it is now alleged that he said that compensation would be paid following “the loss” of the permission. I will consider the allegation in relation to the advice given as to compensation in a later section of this judgment.

There is a further difference between the two allegations set out above; in the first allegation, it is said that Mr Albutt advised that the planning permission would “probably” not be quashed whereas in the second allegation, this has become “very probably” not lose the benefit of the permission. Both allegations use the phrase “slim possibility” which is, of course, a phrase used by Mrs O’Connor in her email of 11 September 2009.

I will now summarise my earlier findings as to any advice which Mr Albutt gave, and the dates when he gave any such advice, as to the prospects of success for Mr and Mrs Thomas.

RDP’s instructions to Mr Albutt for the conference on 6 January 2009 did not ask Mr Albutt to advise on the merits or to predict the outcome of the threatened judicial review; instead, he was asked to draft a response to the protocol letters from the UVCG. At the conference on 6 January 2009, Mr Albutt dealt with a large number of matters arising. The UVCG’s challenge to the planning permission, at least according to it, involved many factual allegations. It was clear at the conference that many of those allegations were disputed by Mr and Mrs Thomas. Mr Albutt could not have been expected at that preliminary stage to predict the determination of a court at a later judicial review of those factual allegations and it is clear that he did not do so. Instead, he asked for further inquiries to be made and he asked for the planning file. Further, the instructions of Mr and Mrs Thomas at that conference differed from the findings of Ouseley J; accordingly, if Mr Albutt had been asked to predict the outcome of the judicial review on the basis of his instructions, those instructions differed in an important way from the ultimate findings of the court. I also find that Mr Albutt did not identify the dichotomy between “fraud” being, or not being, established against Mr and Mrs Thomas as pleaded in the Particulars of Claim. In so far as there was a relevant dichotomy discussed at the conference, it was between Mr and Mrs Thomas being in some way at fault or being innocent victims of the NPA’s incompetence. I have also found that Mr Albutt took the view, and was understood to take the view, that the delay by the UVCG gave Mr and Mrs Thomas a very strong argument to resist the challenge to the planning permission but that argument would be significantly weakened if Mr and Mrs Thomas were seriously at fault for what had occurred rather than being the victims of the NPA’s incompetence.

It is then said that on 23 February 2009 Mr Albutt gave negligent advice as to the prospects of success. I have made detailed findings as to the conversation which Mr Albutt had with Mrs O’Connor on that occasion. Based on those findings, I find that Mr Albutt’s state of mind was that if Mr and Mrs Thomas were “innocent”, whatever that meant, he was very confident that the planning permission would not be quashed; he obviously based that on the fact that there had been delay and that the planning permission had been implemented. The circumstances in which Mr Albutt expressed this belief were such that his comment could not be relied upon as advice on the prospects of success because:

On 3 June 2009, Mr Albutt told Mrs O’Connor that they were “on the wrong foot”, that the case may end up going to trial and he referred to the possibility that the planning permission would be quashed.

In two conversations on 9 June 2009, Mr Albutt discussed the prospects of the court granting the UVCG permission to seek judicial review. In the first conversation, he referred to there not being clear answers and, in the second, he said that it was likely that the UVCG would obtain permission to proceed.

In the side room at the court following the hearing on 15 June 2009, Mr Albutt said that he remained confident that the planning permission would not be quashed.

The purpose of the conference on 8 July 2009 was to prepare the evidence to be relied upon by Mr and Mrs Thomas at the substantive hearing of the judicial review. I have found that Mr Albutt was of the view that the court would not quash the planning permission if Mr and Mrs Thomas were not guilty of wrongdoing. There was no attempt to define what was meant by “wrongdoing”. I find that this undefined concept was not the same as the clear dichotomy between fraud and no-fraud as pleaded in the Particulars of Claim, for two reasons. First, the meaning of “wrongdoing” was not defined, and certainly not clear and secondly, “wrongdoing” was probably wider than fraud.

The purpose of the conferences on 23 July 2009 and 5 August 2009 was, again, to prepare the evidence to be relied upon by Mr and Mrs Thomas. Based on my earlier findings, Mr Albutt’s views on this occasion were essentially the same as on 8 July 2009. He commented on 23 July 2009 that the collection of evidence as to the disputed facts was making “very good progress”.

I do not regard Mr Albutt’s email to Mrs O’Connor of 14 August 2009 as being an advice on the prospects of success, not least because his comments were somewhat condensed and by way of an aside. However, if any attention is to be paid to that email, then it does refer to the possibility that the planning permission might be quashed in the public interest.

I do not regard Mr Albutt’s comments on the offer of settlement made by the NPA on 18 August 2009 as amounting to any advice as to the prospects of success save that Mr Albutt did not advise Mr and Mrs Thomas to agree to the planning permission being quashed. He therefore did not advise them to give up their resistance to the judicial review.

It is also relevant that on 29 August 2009, Mr Albutt advised that he be instructed to read all the disclosed evidence and to advise at a further conference. In the event, that conference did not take place.

I referred earlier to Mrs O’Connor’s email of 11 September 2009. That email is relied upon by Mr and Mrs Thomas as a correct summary of the advice which Mr Albutt had given up to that point. I find that the contents of the email represented Mrs O’Connor’s thinking at that time. However, I have also found that Mr Albutt did not on any earlier occasion use the phrase “slim possibility” when describing his view as to the prospects of the planning permission being quashed. As I have described, his belief was that the arguments based on delay and prejudice would be sufficient to persuade the court not to quash the planning permission in the absence of “wrongdoing”. However, he never said anything to the effect that he would guarantee that this would be the result. Mrs O’Connor plainly did not think that Mr Albutt had given such a guarantee. She knew there was a possibility that the arguments based on delay and prejudice might not succeed. In this email, she used the phrase “slim possibility” to represent her own assessment of the relevant possibility.

I have made my findings as to the conversations between Mr Albutt and Mrs O’Connor following the email of 11 September 2009. In the event, they did not discuss whether the possibility of the planning permission being quashed was “slim” or greater than that. Instead, on 29 September 2009, Mr Albutt gave advice as to the overall position and he specifically advised in the context of the potential liability for costs. Overall, his advice was to the effect that:

It might be said that Mr Albutt’s advice that there was a “low risk” in relation to costs fitted in with Mrs O’Connor’s email of 11 September 2009 that there was a “slim possibility” that the planning permission would be quashed. However, I consider that Mr Albutt’s advice on 29 September 2009 has to be taken as a whole and I have referred to the other parts of that advice which refer to the difficulty of predicting the way the case would go.

Mr and Mrs Thomas allege that Mr Albutt gave the advice that I have set out at paragraph 322 above and that advice was negligent. I have held that Mr Albutt did not give the alleged advice. However, I will go on to consider whether the advice which Mr Albutt did give as to the prospects of success was negligent.

In the Particulars of Claim, Mr and Mrs Thomas pleaded their allegation as to what was “the correct advice”. The pleading dealt with the issues arising and also with the evidence which ought to have been prepared in relation to such issues. Later in this judgment, I will discuss what is alleged against Mr Albutt as regards the preparation of evidence of prejudice. However, at this stage, I will refer to those parts of the allegedly correct advice which relate to the prospects of success; they seem to me to be as follows:

In fact, Mr Albutt’s views at the time were not very different from what is alleged to have been the correct advice. As to the point that, but for the delay, the planning permission was likely to be quashed, Mr Albutt was of the opinion, and said so, that the case was a very odd one where the permission should not have been granted. It is true that he did not analyse for the benefit of his solicitors and Mr and Mrs Thomas the detailed arguments which were being put forward by the UVCG. Mr Albutt explained to me why he did not do so. In summary, he considered that there was little advantage to his lay clients and to a recently qualified solicitor with no planning experience to explain in detail the technical points which arose. I consider that Mr Albutt believed, and said so, that the best (if not the only) defence to the judicial review, assuming no wrongdoing, was the argument based on delay and prejudice. It is also clear that Mr Albutt knew that prejudice had to be proved and that he so advised. I also think it likely that Mr Albutt knew that there would be an argument that it might be relevant whether the relevant expenditure was incurred after the validity of the planning permission was called into question. But I also think it likely that Mr Albutt thought that it would still be relevant to rely on expenditure, certainly before the protocol letters in December 2008, even though there had been questions raised as to validity of the planning permission, which questions had arguably been overtaken by events, such as the NPA confirming the validity of the planning permission and the continuing failure by the UVCG to seek judicial review.

Later in the Particulars of Claim, when pleading the loss allegedly caused to Mr and Mrs Thomas, it was asserted that if the question of prejudice had been properly investigated then Mr and Mrs Thomas would have been advised that it would be “far from straightforward” to establish substantial prejudice and it would be “very risky” to defend the judicial review. It was then said that if that advice had been given, Mr and Mrs Thomas would not have defended the claim. Later in the pleading, it is asserted that if Mr and Mrs Thomas had defended the claim then there was “a real and substantial chance” that permission to seek judicial review would have been refused or (if permission had been given) the court would not have quashed the planning permission. The Particulars of Claim do not identify the extent of the “real and substantial chance”.

However, shortly before the trial of this action, the solicitors for Mr and Mrs Thomas sent to Mr Albutt’s solicitors particulars of losses which included an estimate of loss on the basis that Mr and Mrs Thomas had defended the judicial review with more detailed evidence as to prejudice. In these particulars, it was said that the chance of succeeding with better evidence of prejudice was 65%.

It is not, of course, unusual, for a litigant to plead cases in the alternative. Thus it is open to Mr and Mrs Thomas to allege that they would not have defended the judicial review and claim losses accordingly but, if the court did not accept their contention that they would not have defended, for them to claim, in the alternative, the losses which would have ensued from defending of the judicial review claim. However, the position in the present case is not as straightforward as that. In the first alternative, it is said that it was “very risky” to defend the judicial review and in the second alternative it is said that they had a 65% chance of success in defending the judicial review. Those two assertions do not live happily together.

In the course of his closing submissions, I asked Mr Jourdan to identify his case as to the advice which should have been given as to prospects of success. His answer raised a number of refinements which I need to explain. He addressed me as to what would have been the most likely non-negligent advice to give on the prospects of success before the outcome of the judicial review was known. Mr Jourdan sought to get away from the pleaded figure of 65% as the size of the chance that Mr and Mrs Thomas would have successfully defended the judicial review. He suggested that the 65% figure was one that I should arrive at with hindsight when considering objectively their prospects of succeeding before Ouseley J with more detailed evidence as to prejudice. He submitted that when I assessed matters before the outcome of the judicial review was known I ought to approach matters differently. He also distinguished between the advice on prospects which could be given without the barrister being negligent and the most likely advice which a careful barrister would give. He explained that when I considered whether Mr Albutt had been negligent, I should ask whether his advice fell outside the range of advice which could be given without involving negligence. By way of contrast, when I came to consider causation and asked myself what would have happened in the absence of negligence, I would ask what was the most likely non-negligent advice which would have been given (rather than the most optimistic non-negligent advice which could have been given). In this way, Mr Jourdan submitted that the most likely non-negligent advice would have been “that Mr and Mrs Thomas would probably succeed in defending the judicial review” or, expressed in terms of percentages, they had a 50 – 60% prospect of success.

I will now comment on these submissions on behalf of Mr and Mrs Thomas. Mr Jourdan’s submission that the most likely non-negligent advice would have been 50-60% does not identify what could have been the most optimistic non-negligent advice. If I held that there was a range within which advice on the prospects of success might be regarded as non-negligent, then it would follow that it would not be negligent to say that the prospects of success were somewhat better than 50-60%. Further, I am not convinced that Mr Jourdan can, for the purposes of his submissions on negligence, distance himself from his submission that Mr and Mrs Thomas objectively speaking had a 65% chance of persuading Ouseley J to find in their favour, if there had been more detailed evidence of prejudice. After all, Ouseley J held against Mr and Mrs Thomas on a number of points (such as the extent of their responsibility for what had happened) whereas Mr Albutt was asked to advise them at a time when they played down, or even denied, their involvement in the application for planning permission. It could even be argued that if they had a 65% chance of success given Ouseley J’s findings (apart from his findings on prejudice) then a non-negligent barrister could have given them a higher percentage chance on the basis of their instructions as to their non-involvement or limited involvement.

For the purpose of deciding this case, it is not necessary for me to explore further the difficulties which Mr and Mrs Thomas’s various different cases create for them. I will proceed on the basis that it is their case that the most likely non-negligent advice which would have been given was to the effect that they would probably succeed in defending the judicial review.

Against this background, I will consider the advice allegedly given by Mr Albutt and then the different advice which I have found that he gave.

In the negligence protocol letter dated 7 March 2013, it is alleged that Mr Albutt advised that the planning permission would probably not be quashed. If he had given that advice, it is hard to see how Mr and Mrs Thomas could allege that it was negligent in view of Mr Jourdan’s submission that the most likely non-negligent advice would have been that Mr and Mrs Thomas would probably succeed in defending the judicial review. Further, the Particulars of Claim assert that Mr Albutt advised that Mr and Mrs Thomas would “very probably” not lose the permission and if that is taken as including advice that the planning permission would “very probably” not be quashed, it is also difficult to see how that would be negligent given Mr Jourdan’s submission. The allegation of negligence appears weaker still if one takes into account the fact that advice on prospects of success is not a precise matter and involves judgment on an issue on which there can be a range of non-negligent opinions so that the most likely non-negligent advice will always be less optimistic than the most optimistic point on the non-negligent range. I can see that a “slim possibility” might suggest that the prospects of success are more than probable or very probable but, if so, there is an obvious inconsistency between the parts of the alleged advice.

I now ask, more relevantly, whether Mr Albutt’s actual advice was negligent in view of the submission that the most likely non-negligent advice was that Mr and Mrs Thomas would probably succeed in defending the judicial review.

In summary, what Mr Albutt told Mr and Mrs Thomas and his solicitors was that he thought that Mr and Mrs Thomas would succeed, in the absence of wrongdoing. I consider that in a case where the most likely non-negligent advice is that they would probably succeed it was not negligent for him to form that assessment. Further, I consider that the advice which Mr Albutt gave on 29 September 2009 was not negligent.

Mr Jourdan also submitted that Mr Albutt’s advice was negligent because he failed to give advice about the risks involved in litigation generally and/or in this case in particular. Mr Jourdan relied upon the approach of the court in three cases.

In Queen Elizabeth’s Grammar School Blackburn Ltd v Banks Wilson [2002] PNLR 300, the defendant solicitors had drafted a restrictive covenant to be entered into by the claimants when they purchased a property. Thereafter, in October 1994, the solicitors gave the claimants advice as to what the covenant meant. The advice was that certain action would not be a breach of covenant. The solicitors knew, when they gave that advice, that the covenantee was asserting the opposite. The first question before the Court of Appeal was whether there was real scope for a dispute as to the meaning of the covenant. The court held that there was. It was then held that the solicitors were negligent when they advised on the meaning of the covenant; they ought to have pointed out the possibility of and the risk of their construction of the covenant being wrong given that they were advising a lay client. Sedley LJ said at [51]:

“Clients, I know, want two inconsistent things. They want confident advice on which they can act, and they want cautionary advice about the risks of doing so. It is a solicitor’s unhappy lot to have to try to satisfy both requirements simultaneously.”

In Hermann v Withers LLP [2012] PNLR 28, the claimants were intending to purchase a high value residential property and it was a matter of great importance to them to know whether the owner of the property would enjoy a legal right to use a nearby garden. This involved a somewhat arcane point of property law. The defendant solicitors advised the claimants in the affirmative. In other proceedings, the court held that the owner of the property did not enjoy such a right. In subsequent proceedings which the claimants brought against the defendant solicitors for negligent advice, Newey J held that the solicitors’ opinion was a possible one and it was not negligent to form that opinion. Nonetheless, the solicitors were held to have given negligent advice. They should have appreciated, and should have advised, that the correct legal answer was open to significant argument. They should not have advised in unequivocal terms but should have warned of the existence of the contrary arguments.

These two cases involved advice given by solicitors to lay clients as to the correct interpretation of a document. They contain statements of principle as to what is involved in the duty of a solicitor to give advice in such a case. It is the duty of the solicitor to state not only his opinion as to the correct construction but he will also normally be expected to point out, where appropriate, that there are arguments to the contrary and what the consequences are of his opinion not being upheld.

Levicom International Holdings BV v Linklaters [2010] PNLR 29 involved an allegation that the advice given by solicitors as to the meaning of a document, in circumstances where the client was advised to commence arbitration proceedings seeking relief in accordance with the advised meaning, had been too optimistic and had been wrong. I am far from clear that the judgments of the Court of Appeal lay down a general principle as distinct from assessing the detailed facts of that case. At [249], Stanley Burnton LJ held that the solicitors could not sensibly have advised that the meaning of the document was “clear” and they ought to have given a balanced view of the rival arguments particularly in the context of potential arbitration proceedings. In the light of Mr Jourdan’s submissions as to there being a 65% chance of success in this case, it is interesting to note that the Lord Justice thought that a solicitor should only give prospects of success “in the region of, but not less than, 70 per cent” when he was “very confident indeed” as those prospects of success were “high”.

I am not persuaded by those decisions, or otherwise, that Mr Albutt was negligent because he failed to warn that there were risks in litigation generally, or in this case in particular. At all times, he was instructed by solicitors. The two solicitors involved, Mr Davies and Mrs O’Connor could be expected to be fully aware that there are risks involved in litigation. Indeed, both Mr Davies and Mrs O’Connor gave evidence to that effect. At the conference on 6 January 2009, Mr Albutt was not asked to advise on the merits. At the conference, the prospects of success were not clear, not least because the protocol letter relied on a large number of factual assertions which were strongly disputed by Mr and Mrs Thomas. He could not be expected to predict the outcome of the case at that point and he did not do so. He correctly distinguished between the possible outcome where Mr and Mrs Thomas were involved in some misconduct and the possible outcome where they were not so involved. As to the comment made by Mr Albutt on 23 February 2009, this comment was made to a solicitor, Mrs O’Connor, and she, rightly, did not take it literally. The conferences on 8 and 23 July and 5 August 2009 were for the purpose of preparing the evidence which was to be served on behalf of Mr and Mrs Thomas. I have held that Mr Albutt’s belief in the prospects of success at the time of those conferences was not a negligent belief. He was not asked during those conferences to assess the prospects of success. So far as he knew, Mr and Mrs Thomas were determined to fight the judicial review and his job was to get on with it. On 29 September 2009, he did express his opinion on the case more generally and he expressed the view that it was well worth fighting the judicial review and that it was difficult to predict the course of the litigation. In that context, I do not regard the reference to the risks as to costs being “low” as inappropriate or negligent.

In paragraph [113] of the Particulars of Claim, Mr and Mrs Thomas pleaded that Mr Albutt’s consistent advice from January to October 2009 was, so far as relevant to the present point, that if the planning permission were “lost”, but there had been no fraud on the part of Mr and Mrs Thomas, then they would be paid compensation for the loss of the permission. This alleged advice contrasts with the advice he allegedly gave as to the position which would apply if the permission were “lost” and it was found that Mr and Mrs Thomas were guilty of fraud; in such a case, the alleged advice was that they would not be paid compensation.

Mr Albutt asked for further information as to this allegation. He asked whether the reference to “the loss of the permission” was a reference to the planning permission being quashed on judicial review or a loss of the permission following a discontinuance order, or something else. This request was answered by saying that the request was based on the premise that Mr Albutt’s advice consistently distinguished between quashing and discontinuance but it did not. It was said that the allegation was sufficiently pleaded in the original Particulars of Claim.

The allegation against Mr Albutt therefore seems to be that he referred to compensation following “the loss of the permission” and he did not distinguish between the consequences of the permission being quashed and the consequences following a discontinuance order.

In so far as it is alleged that Mr Albutt advised that compensation would be payable following a discontinuance order, he accepts that he did give that advice and it is agreed that such advice was correct. Accordingly, the allegation of negligence amounts to an allegation that Mr Albutt advised that compensation would be payable if the permission were quashed, subject to the qualification that this consequence would not follow if the permission were quashed by reason of the fraud of Mr and Mrs Thomas.

Having identified the allegation as to the advice which Mr Albutt gave, I next consider when, it is alleged, that Mr Albutt gave this advice. Mr and Mrs Thomas do not allege that this advice was given before 24 June 2009. This appears from the way in which they pleaded the advice given by Mr Davies in his email of 24 June 2009. In that email, Mr Davies did advise them that if the permission was quashed, then in the absence of their fraud, they would be compensated. In the Particulars of Claim, it appeared to be said that this advice from Mr Davies was in reliance on earlier advice given by Mr Albutt. However, when asked to give further information in this respect, Mr and Mrs Thomas answered:

“It is not alleged that, on or before 24^th June 2009, the Defendant had advised that if the Permission were quashed following a successful claim for judicial review then the Claimants would be awarded compensation.”

It follows that Mr and Mrs Thomas’ pleaded case is that Mr Albutt gave that advice at some time after 24 June 2009.

The case has been argued before me on the basis that if Mr Albutt gave the alleged advice then it was wrong. I mention this because there was an examination at the trial as to why Mr Davies thought, as he advised on 24 June 2009 and at other times, that Mr and Mrs Thomas would be entitled to compensation if the planning permission were quashed. Mr Davies was not wholly clear as to why he thought what he did. He cannot have been relying on Mr Albutt for this point of view when he expressed it on 24 June 2009 because it is agreed that Mr Albutt did not say anything to support that point of view before that date (if he ever did). Mr Davies may have had in mind that Mr and Mrs Thomas might complain to the local government ombudsman who might recommend a payment of compensation; or Mr Davies might have thought that there might be some common law basis for a claim against the NPA. However, for present purposes I proceed on the basis that Mr and Mrs Thomas would not have been entitled to claim compensation if the planning permission were quashed.

I consider that it is clear that Mr Albutt never thought that Mr and Mrs Thomas would be entitled to compensation if the planning permission were quashed. This fact alone makes it highly likely that, when asked as to the position, he would have given advice, in accordance with his accurate understanding, that no compensation would be payable. Further, this fact effectively rules out the possibility that he would have knowingly given the alleged advice. Nonetheless, it is possible that he used words which, objectively considered, amounted to giving that advice or he used words which were ambiguous and which were understood as amounting to the alleged advice.

Based on my earlier findings, I hold that Mr Albutt gave the correct legal advice at the conference on 6 January 2009. At that time, he clearly explained that if the planning permission were to be quashed then no compensation would be payable. His advice was not open to any other interpretation.

In the AOS settled by Mr Albutt, it is said that the result of quashing the planning permission would be that Mr and Mrs Thomas would not be compensated. The case as to prejudice relied on the fact that they would not be compensated. That seems clear enough. Reference was made to a later statement in the AOS which referred to the fact that the case of the UVCG did not refer to the question of compensation. I do not consider that the AOS is ambiguous or that it was possible to read it as a statement that compensation would be payable following the quashing of the planning permission. The second reference to compensation in the AOS was clearly designed to make the UVCG face up to the prejudicial consequences of what it was seeking. I take the same view as to the way in which the question of compensation is dealt with in Mr Albutt’s skeleton argument for the permission hearing.

It is right that on 28 April 2009 Mr Davies wrote to the bank in terms which might have given the impression that if the permission were quashed Mr and Mrs Thomas would be entitled to compensation and, on 24 June 2009, he gave incorrect advice to Mr and Mrs Thomas on that point. However, Mr Albutt was not told that Mr Davies had given this advice.

Mr Albutt did not say anything at the conferences on 8 and 23 July and 5 August 2009 to the effect that there was a possibility of Mr and Mrs Thomas being entitled to compensation following the quashing of the planning permission.

Mr Jourdan referred to Mr Albutt’s email of 14 August 2009. I have already described the reasoning in that email as somewhat condensed but I have also stated that the email was unclear. Mrs O’Connor gave evidence that she understood it as meaning that in the absence of wrongdoing compensation would be payable if the planning permission were quashed. If that is right, then Mr Albutt did make an unclear statement which was capable of being interpreted in that way.

On 11 September 2009, Mrs O’Connor emailed Mr Albutt and when discussing the question of costs, she referred to a possibility that in the absence of wrongdoing, the planning could be quashed with compensation to Mr and Mrs Thomas. Based on my earlier findings of fact, what happened was that Mr Albutt did not react to this email until a telephone conversation on 29 September 2009. As I earlier explained, I do not think that Mr Albutt could be understood as agreeing with the way matters were put in the email of 11 September 2009. As regards the statement in that email that there was a possibility that the planning permission might be quashed with compensation, he did not say anything which could be understood as supporting that statement.

I therefore find that Mr Albutt gave the correct advice on 6 January 2009 and he did not endorse Mrs O’Connor’s incorrect statements in her email of 11 September 2009. I consider that the only point that can be made against Mr Albutt on this subject is that he wrote an email on 14 August 2009 which mentions the question of compensation in passing in a way which is unclear.

I do not consider that it would be right to hold that the email of 14 August 2009 amounted to his giving advice, contrary to his original correct advice, that in the absence of wrongdoing compensation would be payable following the quashing of the permission. In so far as his email was badly expressed and open to interpretation, I do not regard that as amounting to negligence.

I hold that the allegation of negligence in relation to his advice as to the availability of compensation fails.

The primary case for Mr and Mrs Thomas is that if they had been given different advice by Mr Albutt, then they would not have defended the judicial review. If I were to accept that case, then the secondary case would not arise. I have already held that Mr Albutt was not negligent in the ways alleged as to his advice on the prospects of success or as the availability of compensation. Accordingly, on those grounds I reject the primary case put forward by Mr and Mrs Thomas. I will in due course, for the sake of completeness, consider what I would have held in relation to causation and loss if I had accepted the allegations of negligence in relation to the primary case. However before I consider any issues as to causation and loss, it is desirable that I address all of the allegations of negligence which have been made. I will therefore consider the allegations of negligence put forward as the secondary case. However, before I am able to do that, I need to summarise some legal principles as to when a court will give permission to seek judicial review and as to the relevance of delay, prejudice and hardship in this context.

A claimant for judicial review needs to obtain the permission of the court to seek judicial review. The first thing which the court considers is whether the Claimant has made out a sufficient case to be granted such permission. The test for granting permission is a low one, similar to that applied on an application for permission to appeal. There is a note in the current White Book at paragraph 54.4.2 which says that the purpose of the requirement for permission is: “to eliminate at an early stage claims which are hopeless, frivolous or vexatious and to ensure that a claim only proceeds to a substantive hearing if the court is satisfied that there is a case fit for further consideration”. That note is not new. It also appeared in the White Books for 2008 and 2009, which were current at the time of the judicial review in this case.

The next thing which a court needs to consider at the permission stage is whether the claim was brought in time or whether it is appropriate to extend the time to bring such a claim.

Under CPR r.54.5, the claim form must be filed promptly, and in any event not later than 3 months after the grounds to make the claim first arose. However, the Court has a discretionary power, under CPR r.3.1(2)(a), to extend time, which is only to be exercised if a good reason is shown. The requirement for a “good reason” was previously expressly stated in RSC Ord. 53, r.4. It is not expressly stated in CPR r.54.5, but the same approach is applicable under the CPR: see, for example, R (Gavin) v Haringey LBC [2003] EWHC 1883 Admin at [7].

There are many considerations which are potentially relevant on the question as to whether time should be extended. These considerations will include the length of the delay, any explanation for the delay, the merits of the claim, the importance of the issues raised, the effect of the passage of time on the defendant and any interested parties. As regards the relevance of the merits of the underlying claim to the decision whether to extend time, it was said by Simon Brown LJ in R v Criminal Injuries Compensation Board ex parte A [1998] QB 659 at 676 - 677 (applied in R. v Bassetlaw DC, Ex Parte Oxby[1998] PLCR 283):

“At the leave stage (putting section 31(6)(a) aside), the question is whether there is ‘good reason’ for extending time and allowing the substantive application to be made. This involves consideration both of the reasons for the delay and the apparent merits of the challenge; the better the prospects of success, the readier will the court be to extend time even where the delay is unjustifiable, i.e. the merits themselves can contribute to or even supply the ‘good reason’.”

The importance of the issues raised was held to be a relevant consideration in R v Secretary of State ex p Ruddock[1987] 1 WLR 1482 at 1485F-G. The effect of the passage of time on others is relevant, as stated in R (Lichfield Securities) v Lichfield DC[2001] 3 PLR 33 at [37], where it was said:

“But promptness, like undue delay … is crucially affected by the potential or actual effects of the passage of time on others. This is the reason for the particular pressure on applicants in many planning cases: see Burkett paras. 17 to 20.”

The reference to Burkett in that passage was a reference to the decision of the Court of Appeal in R (Burkett) v Hammermith and Fulham LBC [2001] Env LR 39; the actual decision in that case as to when time started to run was reversed by the House of Lords, reported at [2002] 1 WLR 1593.

If the court decides to extend the time, and grants permission to seek judicial review, then the case goes to a substantive hearing. At the substantive hearing, the court does not consider, for a second time, whether it is appropriate to grant an extension of time: see R. v Criminal Injuries Compensation Board Ex parte A [1999] 2 AC 330 dealing with RSC Ord.53 but the same reasoning would apply to CPR r.3.1(2)(a). Accordingly, if a defendant or an interested party wishes to submit that the court should not grant an extension of time, then they should make that case in the acknowledgment of service. If they do, the normal course would be for the court to list the applications, for an extension of time and for permission, for an oral hearing so that the defendant and any interested party can be heard.

If the court considered, on the application for an extension of time, that there was (for example) a good explanation for the delay in relation to some of the grounds on which judicial review is sought, but not on others, it would be open to the court to give permission only on the grounds that were not affected by the unjustified delay.

Further, it is open at the permission stage to defer the decision as to whether to extend time and/or to grant permission and to order what is called a “rolled up” hearing, so that the application for permission and to extend time will be heard, with the substantive hearing to follow immediately if permission and an extension are granted. However, there are dicta which stress that a direction that there be a rolled up hearing takes from the court and any respondent the benefit which is intended to be produced by the relevant time limits which is that the court and the respondents can be spared the need to deal with late challenges except only for good reason: see R v North West Leicestershire DC ex parte Moses [2000] Env.L.R. 443 at 459 per Simon Brown LJ, referring to earlier similar statements.

In addition to the considerations which apply to an application for an extension of time, the fact of delay may give rise to arguments under section 31(6) of the Senior Courts Act 1981. This provides:

“Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant -

(a)

leave for the making of the application; or

(b)

any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

Section 31(6) refers to “undue delay”. This means delay beyond the period permitted by CPR r.54.5. There is still undue delay for this purpose even where there are good grounds to extend the period in r. 54.5(1). These propositions are established by a number of cases, see, for example, R (Gavin) v Haringey LBC [2003] EWHC 1883 Admin at [7]. In the present case, the grounds for making the claim arose on the grant of the planning permission on 21 June 2005 so that this was undoubtedly a case of “undue delay” within section 31(6).

S.31(6) can be invoked both at the permission stage and at the substantive hearing. At both stages it involves a discretionary exercise and at both stages it depends on the evidence.

Section 31(6) refers to substantial hardship or substantial prejudice caused by the grant of the relief sought. At the permission stage, the relief sought is permission to apply for judicial review so that section 31(6) refers to the possibility of hardship or prejudice caused by the grant of permission. At the substantive hearing, section 31(6) refers to the possibility of hardship or prejudice caused by the grant of the relief sought, for example, the quashing of a planning permission: see R v Secretary of State for Health ex parte Furneaux [1994] 2 All ER 652. However, as will be seen, at the stage of the substantive hearing, where it is held that the decision which has been challenged was unlawful and should not have been made, the focus is often upon the extent of the hardship or prejudice which has resulted from the relevant delay.

The operation of section 31(6) at the stage of the substantive hearing was explained by Simon Brown LJ in R v Criminal Injuries Compensation Board ex parte A [1998] QB 659 at 676 – 677 (applied in R. v Bassetlaw DC, Ex Parte Oxby[1998] PLCR 283) where he said:

“If, of course, at the substantive hearing it appears that the grant of relief would be likely to cause hardship, prejudice or detriment, then clearly the reasons for the earlier delay may come back into play. But by that stage the applicant will have established his substantive challenge (else he will in any event fail on the merits and all questions of delay will be irrelevant) and the question will be: should the applicant have to suffer an unlawful decision or should the respondent (or third party) have to suffer the hardship, prejudice or detriment which would result from its being quashed? (I pose the question by reference to a certiorari challenge such as this.) It is into that balance that the earlier "undue delay" must then be put, its weight in the scales being affected principally by the following considerations.

(i)

The length of the delay in seeking leave.

(ii)

The extent to which the applicant was to blame for the undue delay. He may, of course, have been wholly blameless: three months may have passed before he could possibly have discovered any basis for challenge yet the grounds would nevertheless have arisen (see rule 4(3)) so as to set time running, and "there is undue delay for the purposes of section 31(6) whenever the application for leave to apply is not made promptly and in any event within three months from the relevant date:" see Ex parte Caswell [1990] 2 AC 738 .

(iii)

The extent, if at all, to which the hardship, prejudice or detriment that would result from the quashing, results also from the delay. It does not, of course, need to - that was precisely the point decided in Furneaux [1994] 2 All ER 652. It is, perhaps, unlikely that it will; the period of delay in applying for leave is likely to be far shorter than the subsequent time taken to bring the substantive challenge to court. But if there is a causal connection between the original delay and the hardship, prejudice or detriment (as, for example, when a developer commits himself to implement a planning permission before it is challenged but after it could have been challenged), then the applicant can hardly complain if that delay weighs heavily against him in the final balance.

(iv)

Whether the applicant can be shown to have misled the court when he obtained leave. If he did, then again he can hardly complain if it weighs heavily against him. Indeed, if the extension of time is shown to have been obtained in bad faith, then the court in its discretion can properly refuse relief irrespective of whether the respondent makes out a case of hardship, prejudice or detriment.

In short, quite different questions arise with regard to delay depending upon whether the point is raised at the leave stage or at the substantive hearing. At the leave stage … [This passage is quoted above at paragraph 379] At the substantive hearing, however, the question is whether, in a case where there was initially "undue delay" (which may have been wholly justifiable), the merits of the challenge (by now actually established) should be overridden by the hardship, prejudice or detriment that would result from the grant of relief.”

It is relevant to refer to some of the leading cases, involving applications to quash planning permissions, where the question of delay has been considered. In R v Exeter CC ex parte J L Thomas & Co Ltd [1991] 1 QB 471 at 484 D – G, the application for judicial review to quash a planning permission failed on the merits but Simon Brown J in obiter remarks stressed “the crucial need” to applicants to proceed with “the greatest possible urgency” or “the greatest possible celerity”.

In R v Bassetlaw DC ex parte Oxby [1998] PLCR 283, the leader of the council applied for an order quashing a planning permission granted by that council. There was delay in making the application. Buxton J granted permission to apply for judicial review, notwithstanding the delay. The substantive hearing came before Popplewell J. By that stage there was more evidence as to delay and prejudice. He held that there had been undue delay, that the rights of the landowners were substantially prejudiced and he refused relief without ruling on the merits of the application for relief. The Court of Appeal allowed an appeal by the leader of the council. Considerable time had elapsed between the grant of the permission and the application for judicial review. However, for some of that time, the council did not know all the relevant facts and then the council used the time reasonably so that there was only marginal delay to weigh against the claimant’s position. The Court of Appeal applied the guidance given by Simon Brown LJ in ex parte A, which I have quoted above. To treat the marginal delay as decisive of the outcome would be disproportionate. The real question was whether the landowners would be substantially prejudiced by the grant of relief. It was highly relevant to consider the extent, if at all, to which the hardship, prejudice or detriment resulted from the delay. The mere loss of an unlawfully granted planning permission would be given little weight, because a landowner had no legitimate grievance on being deprived of what he should never have had. It was also relevant that events took place against the background of an appreciation that the relevant consents were of questionable validity. If a permission was shown to be invalidly granted, then it should in principle be declared to be void. But the position could be different if there had been a material change of position on the part of an affected party on the faith of the consent being valid. Each case would depend upon its own facts and an evaluation of the relevant factors overall. In that case, the challenge to the planning permission was against a background of wrongdoing and the planning permission had not been implemented.

In R v Newbury DC (ex parte Chieveley PC)[1999] PLCR 51, a condition in a planning permission was unlawful but both the judge (Carnwath J) and the Court of Appeal refused to quash the permission because of the delay in applying for judicial review. The period of delay was almost three years. Pill LJ (with whom Judge and Hobhouse LJJ agreed) agreed with the comments of Simon Brown J in ex parte J L Thomas. Pill LJ held that it was important to good administration that a planning permission once granted should not readily be invalidated. He said that: “[i]t is important that citizens know where they stand and how they can order their affairs in the light of the relevant decision”. He stated that weight should be given to that factor “notwithstanding the absence of convincing evidence that the applicants for planning permission have been prejudiced by the delay”. Unlike the position in Bassetlaw, there was no allegation of impropriety.

In R v North West Leicestershire DC ex parte Moses [2000] Env.L.R. 443, planning permission was granted in July 1994 and the application for judicial review was made in June 1999. Permission to seek judicial review and/or an extension of time was refused on the papers by Collins J and again refused by Scott Baker J following an oral hearing. A renewed application to the Court of Appeal for permission to seek judicial review was dismissed. Simon Brown LJ (with whom Hale LJ and Sir Christopher Staughton agreed) followed the approach in the Newbury DC case and held that to quash the planning permission would involve substantial detriment to good administration. He approved his own earlier comments in ex parte J L Thomas. He then considered the submissions as to lack of knowledge of the invalidity on the part of the applicant. He said that in Bassetlaw, there was clear manipulation of the system. He summarised the evidence as to prejudice at page 450; the evidence of prejudice principally consisted of evidence as to substantial expenditure in implementing the planning permission and future loss of income as a result of the loss of the permission. It was held that the prejudice was plain (see at page 452).

The North West Leicestershire DC case is also relevant for the comments of Simon Brown LJ, at page 459, as to the way in which matters might be conducted at the permission stage and at the substantive hearing. He explained that the importance of the court deciding not to extend time at the permission stage was that both the court and the respondent might be spared the need to deal with late challenges except only for good reason. Where section 31(6) is relied upon, a respondent will normally be involved at the permission stage “to detail the likely prejudice”. He then added:

“Still, however, it should be possible to decide the permission application in a comparatively short time and on the basis of substantially less material and argument than would be appropriate for a substantive hearing. And that is surely so too when the question is one of standing.

…

Judges must be astute to ensure that disproportionate time is not taken up at the permission stage: a reasonable relationship should be maintained between the time taken to weed out unarguable cases and the time thereby saved.”

In the Court of Appeal in R (Burkett) v Hammermith and Fulham LBC [2001] Env LR 39 at [17], the court referred to the approach in ex parte J L Thomas and stated that: “for self-evident reasons the principle, though variable in its application, is a general one in planning cases”. I do not regard the comments of the Court of Appeal in Burkett as undermined by the later decision of the House of Lords in that case which reversed the Court of Appeal as to the date when the time limits for judicial review begin to run; indeed, in the House of Lords, Lord Hope of Craighead said that applications in such cases should be brought “as speedily as possible”: [2002] 1 WLR 1593 at [64].

In R (Lichfield Securities) v Lichfield DC[2001] 3 PLR 33 at [37], the Court of Appeal followed the approach of the Court of Appeal in Burkett and referred to “the particular pressure on applicants in many planning cases”, the relevant pressure being the need to act with urgency and speed.

In R (Gavin) v Haringey LBC, Elias J granted permission to seek judicial review to quash a planning permission ([2003] EWHC 1883 (Admin)) but at the substantive hearing, Richards J declined to quash the permission on account of the delay in seeking judicial review and prejudice to the landowner ([2004] 2 P & CR 13). In that case, there was delay of 32 months between the grant of the planning permission and the application for judicial review. Elias J held that, for much of this period, the applicant had not been aware that the permission had been granted. The landowner had put before Elias J a witness statement dealing with the question of prejudice. The landowner had begun to implement the permission, a building contract had been entered into and building materials had been ordered. The witness statement put forward a calculation as to the loss which would be incurred if the permission were quashed. The losses might have been in excess of £1.0 million although Elias J commented that there was room for dispute about the figures. He considered however, that there was the potential for real prejudice to the landowner if the permission were quashed. He held, following the comments of Lord Goff in Caswell v Dairy Produce Quota Tribunal [1990] 2 AC 738 at 747E, that the final decision on the application of section 31(6) should be left to the substantive hearing. He thought that the applicant would face considerable difficulty in persuading the court to quash the planning permission but he should be allowed to proceed to the substantive hearing.

At the substantive hearing in Gavin, Richards J held that the planning permission would have been quashed if an application for judicial review had been made in time. However, he refused to quash the permission by reason of delay and prejudice. I note that, on the subject of prejudice, the landowner had put in two further witness statements which were not before Elias J. Although the applicant was not to blame for the delay, the landowner would suffer hardship and prejudice if the permission were quashed because a contractor had been appointed and works had started. The adverse financial consequences for the landowner were very large and were not to be discounted by the speculative possibility that a fresh application for planning permission might succeed. It was not unreasonable to incur further expenditure in implementing the planning permission even after it was the subject of a late challenge and even after the bringing of the application for judicial review and even though some work was done in breach of planning conditions. Further, it was not in the interests of good administration to quash a planning permission long after it was granted.

Although section 31(6) can be considered both at the permission stage and at the substantive hearing, there is a clear preference expressed in the cases for the matters arising under section 31(6) to be dealt with at the substantive hearing. This allows such matters to be dealt with in depth rather than in the more limited and probably inconclusive way which is all that would normally be appropriate at the permission stage: see Caswell [1990] 2 AC 738 at 747E and ex parte A [1998] QB 659 at 675 – 676 per Simon Brown LJ.

Finally, it must be remembered that on an application for judicial review the grant of relief is discretionary. As was said by Simon Brown LJ in ex parte A [1998] QB 659 at 676 G - H:

“ … if the extension of time is shown to have been obtained in bad faith, then the court in its discretion can properly refuse relief irrespective of whether the respondent makes out a case of hardship, prejudice or detriment.”

Ouseley J summarised many of the above principles in his judgment in this case when he said, at [132]:

“So, the question is whether the claimants, and the public interest more generally, should suffer the consequences of the unlawful decision with the undoubted impact which its lawful exploitation has and would continue to have, or whether the Thomases should suffer the detriment and prejudice which its quashing would bring. Relevant factors include the length of delay, who was responsible for its length and in particular whether the NPA or the Thomases were responsible, the degree to which it is the quashing or the delay which causes the prejudice, and whether the court granting the extension was misled in any way by the claimants.”

In view of my finding that Mr and Mrs Thomas have not established their primary case as to alleged negligence (which also involved the contention that they would not have defended the judicial review) it is necessary to consider their secondary case and, in particular, their contention that Mr Albutt did not give the correct advice as to the need to prepare detailed evidence as to prejudice to place before the court which would consider the application for permission to seek judicial review.

At paragraph 58 of the Particulars of Claim, it was pleaded that Mr Albutt did not advise that it was appropriate to investigate the question of prejudice in any detail, or how prejudice should be evaluated or that attempts should be made to obtain evidence of prejudice. At paragraph 115 of the Particulars of Claim, it was pleaded that the correct advice would have been that it would be necessary to give careful consideration to the expenditure incurred on the site and the income from the site and it would be relevant to consider the extent to which the expenditure had been incurred after the time when serious doubts were raised as to the validity of the planning permission. It was also asserted that the correct advice would have been that it was necessary to put forward evidence at the permission stage to support the assertion of prejudice. It was then pleaded at paragraph 122 of the Particulars of Claim that if there had been stronger and clearer evidence of prejudice at the permission stage, then Wyn William J would have refused permission to apply for judicial review and/or would have refused an extension of time.

I have already described the advice which Mr Albutt gave on 6 January 2009, the steps which were taken following the issue of the claim form on 5 February 2009 and in advance of the permission hearing on 15 June 2009. I can summarise those matters as follows. Initially, Mr Albutt was asked to draft a response to the protocol letters but that instruction was overtaken by the commencement of proceedings on 5 February 2009. Then he was instructed to settle the AOS and he did so. He was not specifically asked to advise on whether any evidence should be prepared to contradict the matters relied on by the UVCG in the claim form or to support the matters relied on by Mr and Mrs Thomas in the AOS. However, I consider it was plainly part of his duty in the circumstances of this case to advise on whether the preparation of evidence was appropriate. The relevant circumstances included the following:

I will next consider whether it would have been appropriate to prepare evidence for the purposes of the permission stage and, if so, what evidence would have been appropriate. The answer to this question very much depends on what assessment should have been made as to what would happen at the permission stage. At this point, I will describe what I consider ought to have been the response of a competent barrister advising Mr and Mrs Thomas on that question.

At the permission stage in this case, the court would have to consider the question of permission to seek judicial review, the application for an extension of time and the possible application of section 31(6). I consider that a competent barrister should have approached the matter along these lines:

Following this reasoning, a competent barrister might well have thought that there was only limited advantage to be gained by putting in evidence which sought to address the issue of permission or the issues under section 31(6) (unless that evidence also went to the issue as to an extension of time). However, the position in relation to the extension of time was different. A competent barrister should know that the court had in some earlier cases refused an extension of time where there was delay which was not adequately explained and where the delay had caused prejudice to third parties. The question, as to whether to extend time, would probably only be addressed at the permission stage. Although it would be possible for the court to defer the question to a rolled up hearing, that was not usually the preference of the court. In any case, Mr Albutt did not ask for a direction to that effect so that he had to proceed on the basis that the court would be likely to decide the question as to an extension of time at the permission stage.

A competent barrister should have advised that the court would approach the question of an extension of time by considering the length of the delay, the explanations for the delay, the merits of the claim, the importance of the issues raised and the effect of the passage of time on Mr and Mrs Thomas. In relation to these matters, the competent barrister should consider it desirable for Mr and Mrs Thomas to prepare evidence dealing with the effect on them of the delay and, if possible, with the explanations for the delay put forward by the UVCG.

The AOS settled by Mr Albutt relied heavily on the argument that the quashing of the planning permission would cause prejudice to Mr and Mrs Thomas. Although this point was not pointed out at the hearing before Wyn Williams J, nor at the trial before me, I note that the AOS contained a statement of truth signed by Mr Davies on behalf of Mr and Mrs Thomas. However, if it had been argued that this statement of truth meant that the matters of fact referred to in the AOS were formally in evidence, I doubt if Wyn Williams J, or any judge, would have regarded the assertion of a fact in the AOS as being as good as facts described in a witness statement.

Mr Albutt’s skeleton argument for the permission hearing addressed the question whether it was appropriate for the court to extend time by reference to the considerations listed in CPR r. 3.9, as it then was. That rule made it relevant to consider the effect on Mr and Mrs Thomas of the delay by the UVCG in seeking judicial review. Mr Albutt’s skeleton argument addressed those matters.

When considering at the present trial the material which was placed before Wyn Williams J, Mr Albutt relied on the fact that the UVCG had served a substantial body of material with its claim form. It was said that that material established the facts which Mr and Mrs Thomas needed for the purpose of arguing that an extension of time should not be granted by reason of the prejudice to them. That material included the Hooker reports which referred to the fact that the planning permission had been implemented and that Mr and Mrs Thomas had incurred capital expenditure on buildings.

It was submitted to me that the fact that there would be prejudice to Mr and Mrs Thomas if the permission were quashed was an admitted fact. I was referred to the paragraph in the UVCG’s Statement of Facts and Grounds which stated that little weight should be given to “any prejudice” to Mr and Mrs Thomas on various grounds. I do not consider that a competent barrister would regard that as an admission that there would be prejudice to Mr and Mrs Thomas but even if it were such an admission, it said nothing as to the extent of any such prejudice.

In the light of the above, I consider that a competent barrister should have advised Mr and Mrs Thomas to put in evidence of prejudice for the permission hearing. There was time to do so and the expense involved would not have been very great. If there were any difficulty in obtaining details as to expenditure, the evidence did not need to be as detailed as the evidence which might be appropriate for any later substantive hearing. However, it was desirable to give more detail than was contained in the AOS and it was desirable that the matter be dealt with by a witness statement from Mr or Mrs Thomas, rather than simply depend upon the statement of truth on the AOS. It was also desirable that there be a specific witness statement making as many detailed points as could be made rather than having to rely on how matters were described in the Hooker reports. A competent barrister should have realised that evidence from Mr or Mrs Thomas might give rise to further contention and the court might not be prepared to make final findings of fact on the strength of it and, indeed, the court might in the end nonetheless grant an extension of time, but it would still be worthwhile serving such evidence for use at the permission stage.

In coming to this conclusion, I leave out of account what Wyn Williams J said at the permission hearing about the state of the evidence. In fairness to Mr Albutt, I ought to form my own assessment of the matter without the dubious benefit of hindsight and therefore without taking account of what that judge said on the subject.

Having considered what a competent barrister should have advised on the preparation of evidence as to prejudice for the permission hearing, I now have to consider whether Mr Albutt was negligent in not so advising. The question of what evidence to prepare involved a matter of judgment. Mr Albutt said in his witness statement that he had in mind that the UVCG was not disputing that Mr and Mrs Thomas would suffer prejudice if the permission were quashed and it was common ground that they had made substantial investments in the caravan park. Those reasons do not seem to me to be good reasons for not putting in evidence of prejudice at the permission stage. First of all, I do not think that a competent barrister could think that the UVCG was not disputing that Mr and Mrs Thomas would suffer prejudice. Secondly, I do not think that a competent barrister could have thought that an admission that there was some prejudice taken together with the Hooker reports would be as good as detailed evidence as to the extent of the prejudice. I think that Mr Albutt approached the matter in the wrong way and reached the wrong answer. However, it is well established that not every error of judgment is negligent. By a narrow margin, I think that Mr Albutt’s decision not to advise that Mr and Mrs Thomas prepare detailed evidence was negligent. All of the factors which I have considered pointed in favour of preparing that evidence and there were no reasons not to do so.

I note for the sake of completeness that it was not alleged that Mr Albutt should have asked Wyn Williams J to direct a rolled up hearing nor that he should have submitted that there should be an extension of time, and permission, in relation to only some of the grounds relied upon by the UVCG. Accordingly, it was not submitted that Mr Albutt had been negligent in those respects.

I next need to consider Mr and Mrs Thomas’ further contention, as part of their secondary case, that Mr Albutt did not give the correct advice as to the preparation of evidence as to prejudice to place before the court at the substantive hearing.

At paragraph 66 of the Particulars of Claim, it was pleaded that at the conference on 8 July 2009, Mr Albutt advised that what was needed was evidence of expenditure incurred in reliance on the planning permission and its effect on the lives of Mr and Mrs Thomas and the mental anguish they had suffered. It was pleaded that Mr Albutt did not advise at the conference or at any time until 8 September 2009 that evidence was also needed of what profits had been made by Mr and Mrs Thomas as a result of relying on the planning permission with a view to demonstrating that overall Mr and Mrs Thomas were worse off financially as a result of relying on the planning permission. At paragraph 70 of the Particulars of Claim, it was pleaded that the only evidence about profits earned by Mr and Mrs Thomas was the statement in the drafts of, and the final version of, the witness statement of Mr Thomas referring to the income being £10,000 per week from March 2009 to date; it was pleaded that Mr Albutt had never advised that this evidence was quite inadequate to establish prejudice. The Particulars of Claim also pleaded the advice given by Mr Albutt (before and after 8 September 2009) as to the UVCG’s request for disclosure of Mr and Mrs Thomas’ accounting records. It was pleaded that on 8 September 2009, Mr Albutt advised that Mr and Mrs Thomas needed to show that they had invested substantial amounts and were simply doing alright and that if there was a loss that would obviously help.

The Particulars of Claim then continued by pleading the advice which should have been given as to the need to investigate, and prove, the facts of prejudice and the need to show expenditure not recouped out of profits and the relevance of doubts being expressed as to the validity of the planning permission. I have referred to those paragraphs in the pleading when considering the case as to the evidence which should have been prepared at the permission stage. At paragraphs 121 - 122 of the Particulars of Claim it was pleaded that much stronger and clearer evidence of prejudice should have been prepared and if that had happened, Ouseley J would have refused to quash the planning permission.

Mr Albutt’s solicitors requested Further Information in relation to the pleaded allegations. The Further Information which was provided identified documents which were in existence by 20 October 2009 and other documents which could have been created by that date, so that all such documents could have been put into evidence at the substantive hearing. The documents which were identified as in existence by 20 October 2009 included accounts for the years ending 30 September 2002 to 30 September 2007, records of bookings, VAT records, bank paying-in books and bank statements. The documents which it was alleged could have been created by 20 October 2009 were accounts for the year to 30 September 2008 and financial information for as much of the year to 30 September 2009 as could be collected, together with a schedule which could have been prepared to present all of the relevant financial information. It was then pleaded that such a schedule would have shown that the gross (and the net) income from the caravan park business had been lower than the capital expenditure incurred, that the Thomases’ borrowing had increased very substantially and that the Thomases had sold off most of their herd of cattle and farming machinery to focus on the caravan park business. Mr Albutt’s Request for Further Information also asked whether or not “the income from the caravan park form March 2009 to August 2009 was approximately £10,000 per week”. It will be remembered that this was the evidence given by Mr Thomas in his witness statement in the judicial review proceedings. The answer to this question was that the income for the caravan park for that period was not £10,000 per week. It was then pleaded that the best estimate the Thomases could give was that the gross income was approximately £6,166 per week and the net income was £1,638 per week.

In his opening submissions, Mr Jourdan carried out a further analysis of the accounting information which was available at the trial before me. He prepared a schedule which showed the following:

The authorities to which I have referred consider the possibility of prejudice resulting from the quashing of a planning permission and also the possibility of prejudice resulting from any relevant delay in the applicant seeking judicial review. If the planning permission would allow the landowner to carry on a profitable business, then the quashing of the planning permission would result in the landowner being prevented from carrying on that profitable business. That could be seen as prejudice to the landowner but little weight would be attached to it if the landowner had been seriously at fault in the process by which the planning permission had been granted in the first place. If the business was not likely to be profitable, then that would go a long way to removing any argument as to prejudice as a result of no longer being able to carry on the business. In the present case, it was in the Thomases’ interests to argue that the caravan and camping business would, in time, be profitable but that they had incurred heavy capital expenditure, and trading losses, during the period of delay in bringing judicial review proceedings and if the business had to cease (following a quashing of the planning permission) they would not be able to recoup that expenditure and those losses out of future profits and so would suffer prejudice. Accordingly, the Thomases needed to show (if they could) that the business would be profitable, that they had incurred capital expenditure (and possibly trading losses) and that if the business ceased they would not recoup their expenditure (and losses) out of future profits.

I have set out above the pleaded criticisms of Mr Albutt as regards preparation of evidence as to profits and losses, income and expenditure, for use at the substantive hearing. The first allegation was that although Mr Albutt advised at the conference on 8 July 2009 that evidence was needed of Mr and Mrs Thomas’ expenditure on the caravan park, he did not advise as to the profits they had made with a view to demonstrating that overall Mr and Mrs Thomas were worse off financially as a result of relying on the planning permission. This allegation fails by reason of my earlier findings of fact. I have described what was said at the conference on 8 July 2009 and what happened shortly after that conference. I have found that Mr Albutt did advise at that conference that it was very important for Mr and Mrs Thomas to produce evidence as to both income and expenditure on the site.

The next pleaded allegation of negligence was that Mr Albutt did not advise that the evidence as to income in Mr Thomas’ draft witness statement (and in the final version of that witness statement) referring to the income being £10,000 per week from March 2009 to date was quite inadequate to establish prejudice. I agree that the way in which the witness statement dealt with the income from the caravan park was very poor. It was not clear exactly what the relevant passage meant. Was the income figure gross or net? What about the position before March 2009? What was the position as regards profits or losses at all relevant times. These comments would suggest that Mr Albutt was at fault in not doing more to produce the result that Mr Thomas’ witness statement was more helpful to his case. However, as against that, there are the following considerations:

If nothing else had happened after the service of Mr Thomas’ witness statement in relation to the question of the financial information to be provided by Mr and Mrs Thomas, there would be an arguable case that Mr Albutt was negligent in failing to warn that Mr Thomas’ witness statement was not adequate. However, I consider that something very relevant did happen so that in the end, Mr Albutt did adequately advise on the need to produce more financial information. I refer to the request from the solicitors for the UVCG for detailed financial information from Mr and Mrs Thomas. This request for information was certainly comprehensive and if Mr and Mrs Thomas had complied with it, or even a substantial part of it, then the result would have been that sufficient material would have been available at the substantive hearing for the court to make a proper assessment of the financial prejudice to Mr and Mrs Thomas.

I have already set out my findings as to the advice which Mr Albutt gave in relation to the UVCG request for disclosure of financial information. I refer specifically to the advice he gave on 25 and 31 August 2009 and on 8, 9 and 10 September 2009. Some of the advice related to limiting the extent of the information requested by the UVCG. However, I consider that Mr Albutt adequately advised as to the need for Mr and Mrs Thomas to provide substantial financial information if they were to have the best prospects of advancing their case based on financial prejudice. It is not necessary to speculate what advice Mr Albutt would have given Mr and Mrs Thomas if the UVCG had not requested disclosure and whether that advice would have been adequate. The fact is that the UVCG request for disclosure meant that Mr Albutt had to address the adequacy of the financial information which had earlier been provided by Mr and Mrs Thomas and the need to do more in that respect. Overall, I consider that Mr Albutt gave adequate advice on this subject and he was not negligent.

Apart from the allegation of inadequate advice as to the importance of providing financial information, it was not alleged that Mr Albutt was otherwise at fault or responsible for the circumstances which led to the result that Mr and Mrs Thomas failed to provide further financial information to the UVCG. Having given adequate advice in relation to the UVCG request, he left it to Mrs O’Connor and Mr and Mrs Thomas to provide the information and I consider that he was not at fault in so doing.

I have held that Mr Albutt was negligent in one respect but not negligent in the other respects which were alleged. I need to consider whether Mr and Mrs Thomas suffered loss and damage as a result of the negligence which I have found. However, I consider that it is appropriate in this case to make full findings as to loss and damage in relation to all of the allegations of negligence, including the ones which I have not upheld.

Mr Jourdan’s submission was that in a case where a barrister had negligently given his client incorrect advice, the client was entitled to damages if he proved that he relied upon the advice. In such a case the damages would be assessed by reference to the negative consequences of the acts done in such reliance. Thus, in the present case, it was said that Mr and Mrs Thomas relied upon Mr Albutt’s advice as to their prospects of success and they had then incurred costs in resisting the judicial review. The negative consequences of doing so were that they incurred those costs and their resistance failed so that their damages would be the costs they incurred. Mr Jourdan submitted that this approach was only justified where the negligence consisted of giving incorrect advice or incorrect information; if the negligence consisted of a failure to give proper advice then, in order to recover damages, the client had to show that he would have acted differently from the way he did act and he would then have been better off; in that case, the damages would reflect the extent to which he would have been better off as a result of acting differently. Mr Jourdan also accepted that in so far as he alleged that Mr and Mrs Thomas would have applied for planning permission for the Hooker proposal, it was necessary for him to show that they would have so applied if they had been given non-negligent advice on the prospects of success of resisting the judicial review.

My initial reaction to these submissions was one of scepticism. It is hard to see any justice in an award of damages reflecting all of the consequences of reliance on negligent advice when all of those consequences would have happened in any event, if negligent advice had not been given. Further, I considered that the distinction between giving incorrect advice and failing to give proper advice could be an elusive one.

Nonetheless, Mr Jourdan is able to point to the judgment of Millett LJ in Bristol and West Building Society v Mothew [1998] Ch 1 at 11 as support for the distinctions he puts forward. In that judgment, Millett LJ relied on his interpretation of the decision in Downs v Chappell [1997] 1 WLR 426, where the leading judgment was given by Hobhouse LJ.

The other members of the court in Bristol and West were Staughton and Otton LJJ, who both gave judgments. Otton LJ disagreed with Millett LJ’s analysis and said that if it were shown that the client would have behaved in the same, or substantially the same, way if he had been given accurate information, then the negligence had no causative potency, the chain of causation was broken and there was no loss. Staughton LJ stated that he thought the right approach was to ask what the client would have done if it had been given the correct advice or information and that there was a triable issue as to that to be decided by the trial judge, without further direction from the Court of Appeal as to the principles to be applied. However, he acknowledged that the decision in Downs v Chappell appeared to identify a different approach to the question of the loss which was recoverable.

In the later case of Swindle v Harrison [1997] 4 All ER 705, Hobhouse LJ referred to the judgment of Millett LJ in the Bristol and West case and said that it had misinterpreted the judgments in Downs v Chappell.

Mr Jourdan also relied on the decision of the Court of Appeal in Levicom International Holdings BV v Linklaters [2010] PNLR 29. In that case, the trial judge held that the defendant solicitors had given negligent advice to the claimant as to the prospects of success in arbitration proceedings. He also held that the claimant had relied on that advice; his finding is referred to at [228] in the judgment of Stanley Burnton LJ. The trial judge then went on to consider the separate question as to whether the claimant would have acted differently if it had received “proper advice”. He held that the claimant had to prove it would have acted differently and that it had failed to do so. In the Court of Appeal, Stanley Burnton LJ agreed that the solicitors had been negligent but said at [254] that this conclusion would be academic if the claimant would in any event have proceeded as it did. He then considered the facts as to the causation of loss, he disagreed with the judge’s findings of fact, he agreed with the judgment of Jacob LJ (the relevant part of which is quoted below) and he allowed the appeal on “the issue of causation” based on his finding of what the claimant would have done if it had been differently advised. Lloyd LJ agreed and specifically said that he agreed with [284] of the judgment of Jacob LJ. Jacob LJ said at [284]:

“When a solicitor gives advice that his client has a strong case to start litigation rather than settle and the client then does just that, the normal inference is that the advice is causative. Of course the inference is rebuttable—it may be possible to show that the client would have gone ahead willy-nilly. But that was certainly not shown on the evidence here. The judge should have approached the case on the basis that the evidential burden had shifted to Linklaters to prove that its advice was not causative. Such an approach would surely have led him to a different result.”

It is clear that the trial judge and the Court of Appeal held that reliance on the wrong advice was not enough to establish loss and damage. It was necessary for the court to consider what the client would have done in the absence of negligence. That was a question of causation. The difference between the trial judge and the Court of Appeal in Levicom concerned which party bore the burden of proof on that issue.

In view of the fact that Millett LJ was the only judge in Bristol and West who supported Mr Jourdan’s submission, the later judgment of Hobhouse LJ in Swindle v Harrison and the decision in Levicom, I reject Mr Jourdan’s submission that all that is needed is reliance and causation need not be examined. I also note that Elias J reached the same conclusion on the legal principles in Hagen v ICI Chemicals and Polymers Ltd [2002] Pens LR 1 at [125]. I do not think that Mr Jourdan can derive any real support for his submission from White v Paul Davidson & Taylor [2005] PNLR 245, where Ward LJ was prepared to assume that Millett LJ had correctly stated the law, when that assumption did not affect the result and Ward LJ put forward a number of criticisms of the distinctions made by Millett LJ.

I have found that Mr Albutt was not negligent in relation to the advice he gave as to Mr and Mrs Thomas’ prospects of success in resisting the judicial review. This means that it is not necessary for my decision to determine what they would have done and what would have happened if Mr Albutt had given different advice. However, in case it is of assistance, I will address this question. I will proceed on the basis (in this and in all cases where I consider the consequences of negligent or allegedly negligent advice) that the burden of proof is on Mr Albutt to show that any negligent advice did not make any difference to the position of Mr and Mrs Thomas: see Levicom.

The first question to answer is what advice would have been given if Mr Albutt had not been negligent. I understood that counsel agreed that I should identify the proper advice which should have been given in the absence of negligence and that proper advice means advice broadly in the middle of the range of possible non-negligent advice rather than advice at either edge of that range. Reference was made to the decision in Magical Marking Ltd v Ware & Kay LLP [2013] EWHC 59 (Ch) at [157].

Mr Jourdan submitted that the proper advice on the prospects of success would have been to the effect that Mr and Mrs Thomas would probably win, that their prospects were better than 50% and that their prospects were in the range of 50 to 60%. I agree that the proper advice was to the effect that Mr and Mrs Thomas would probably win and that means, if one is to use percentage terms, that their prospects were somewhere above 50%, although I would be hesitant about identifying precisely where above 50%.

If, as I have found, the advice given by Mr Albutt was essentially in accordance with this proper advice, it might be said that what Mr and Mrs Thomas actually did can be equated with what they would have done if they had been given proper advice. However, it might be said that what they actually did was influenced by Mr Davies’ advice and that he had identified even higher chances of success. Accordingly, I will consider what Mr and Mrs Thomas would have done if it had been clear to them that they would probably win the judicial review or, putting it another way, that their prospects of success were better than 50%.

In that event, I consider that Mr and Mrs Thomas would have done the same as they actually did at all times. The principal reasons for so holding are:

Mrs Thomas told me that she understood the advice she was being given by Mr Albutt to be that she had 100% chance of success and if she had thought that there was a 1% chance of failure she would have immediately abandoned the defence to the judicial review. I regard that evidence as wholly unacceptable. Mr Albutt could not possibly have been understood by her as giving that advice and further she was well aware, from time to time, that there was an appreciable risk, certainly much more than 1%, that the planning permission might be quashed.

There are also clear indications in the evidence that Mr and Mrs Thomas were determined to fight the judicial review. Mrs Thomas denied that she was “a fighter” but it is obvious to me that she was a most tenacious fighter. However, I accept that Mr and Mrs Thomas felt under immense pressure throughout 2009 and not surprisingly they wavered in their determination to fight the judicial review. In particular, Mrs Thomas’ mood was volatile and from to time she appeared to lose her willingness to fight on and contemplated giving up. Mr Jourdan stressed the occasions when this was Mrs Thomas’ attitude. He submitted that if she had received proper advice as to her prospects of success, she would have given effect to her doubts and concerns and given up.

The occasion when Mrs Thomas was most inclined to give up was on 17 April 2009. I have made my findings as to what happened on that occasion and how it came about that Mr and Mrs Thomas regained their determination to fight on. I now have to consider what would have happened if, instead of the advice which Mr Davies gave them on that occasion, they had been told that they would probably win and their prospects of success were above 50%. I consider that if that advice had been spelt out to them on 17 April 2009, they would not have given up but would have fought on. Mr Davies’ advice on 17 April 2009 was that it made commercial sense to defend the judicial review. I consider he would have given the same commercial advice if he had thought that Mr and Mrs Thomas would probably win the judicial review (but did not have better prospects than that); in fact, he told me that that is precisely what he did think about their prospects of success. I also consider that that commercial advice, coupled with clear advice that they would probably win, would have had the same impact on Mr and Mrs Thomas as what was actually said to them.

If Mr and Mrs Thomas would have defended the judicial review in the same way as they actually did, I do not think that they would have pursued the Hooker proposal in parallel. It was pleaded that if they had reached the conclusion that they did not wish to incur expense in defending the judicial review, then they would not have wished to abandon that defence outright but they would have preferred to have a stay of the judicial review to allow them to pursue the Hooker proposal, so that their ultimate decision on defending the judicial review could be postponed until they knew the outcome of the Hooker proposal. If then they obtained planning permission in accordance with the Hooker proposal, they might no longer need to defend the judicial review. I do not think that there was any chance of Mr and Mrs Thomas bringing about a situation where the judicial review proceedings were stayed to allow them to pursue the Hooker proposal. There was no chance that the UVCG would have agreed to that. The UVCG knew that they had already delayed for a long time in seeking judicial review and they would not have agreed to a situation where there was further delay before its application for permission to seek judicial review, or before the substantive hearing, as that delay could potentially be used against its case. Further, the UVCG was opposed to the use which had been made of the caravan site and would not have been willing to allow that to continue during the lengthy period involved in an application for planning permission for the Hooker proposal. Further, the UVCG was opposed to the Hooker proposal. Finally, when the planning authority came to consider the Hooker proposal, it would be necessary for it to know whether the relevant planning background including the earlier planning permission or whether that permission should be regarded as of no effect and disregarded. The answer to that question would not be known until the judicial review was determined. It was not suggested that Mr and Mrs Thomas had any worthwhile prospect of applying to the court for a stay of the judicial review to allow them to pursue the Hooker proposal and I do not think that there was any such prospect.

It was also contended that if Mr and Mrs Thomas had given up their defence of the judicial review, they would have pursued the Hooker proposal and they would have had a 50% chance of obtaining planning permission for the Hooker proposal and they should be awarded damages to reflect the alleged loss of that chance.

Mrs Thomas’ first witness statement in these proceedings addressed the question of what she and her husband would have done if they had been given less positive advice. She said that they would have insisted on an immediate sale of the farm. She did not refer to any possibility that they would have given up the defence of the judicial review and instead applied for planning permission for the Hooker proposal. Mrs Thomas signed a second witness statement which dealt with various matters but did not deal with the Hooker proposal. When cross-examined, Mrs Thomas said that if she had been given less optimistic advice about the prospects of defeating the judicial review, they would have sold the farm.

Mr Thomas’ first witness statement contained similar evidence; he said that if there had been any doubt about the prospects of successfully defending the judicial review they would have “walked away”. Mr Thomas signed a second witness statement which dealt with other matters but did not deal with the Hooker proposal. Following the service of witness statements, the written opening submissions of counsel for Mr Albutt pointed out that the contention that Mr and Mrs Thomas would have applied for planning permission for the Hooker proposal was not supported by their own evidence. This then led to Mr Thomas signing a third witness statement in which he said that if they had been told that the Hooker proposal had reasonable prospects of success, they would have applied for planning permission for that proposal. He did not explain how that evidence tied in with his earlier evidence. When he gave his evidence in chief at the trial, he confirmed the accuracy of all three witness statements. When cross-examined he gave emphatic evidence that if they had been given advice which was less optimistic than the advice which they alleged they had given, they would have “got out of it straightaway” i.e. sold the farm. It is right that elsewhere in his evidence he said that if he had been told that there was a risk of losing the judicial review he would have looked into the Hooker proposal. That evidence did not go so far as to say that they would have applied for planning permission for the Hooker proposal. At another place in his evidence, he said that if there had been a compromise available along the lines of the Hooker proposal, and if he had been advised to accept that compromise, then he would have done so. However, the evidence was that although the NPA was at an early stage prepared to discuss an alternative planning permission, by February 2008, the NPA “slammed the door” on all such discussions.

There was no evidence that Mr Davies, or Mr Albutt or Mr Atherton would have advised Mr and Mrs Thomas to pursue the Hooker proposal as an alternative to defending the judicial review.

There were many reasons why Mr and Mrs Thomas would not have pursued the Hooker proposal as an alternative to defending the judicial review:

For the above reasons, I consider that Mr and Mrs Thomas would not have pursued an application for planning permission for the Hooker proposal as an alternative to defending the judicial review or even in parallel with defending the judicial review assuming, contrary to my findings, that they could have brought about a stay of the judicial review pending their pursuit of such a planning permission.

In these circumstances, it is not necessary to evaluate in greater detail the prospects that the NPA would have granted planning permission in accordance with the Hooker proposal. I had detailed evidence from Mr Williams and Mr Middleton on that subject. Mr Williams thought that such an application had a realistic prospect of success but he appeared to take into account as a relevant consideration the desirability of replacing the pre-existing planning permission (but if that permission were quashed, its replacement would not be a relevant consideration). Mr Middleton thought that the prospects of success were less than 5%. Mr Middleton made a number of forceful points in support of his view. He referred to the difficulties caused by the prospect of flooding from the River Usk (not helped by the fact of an actual flood in September 2008) and the relevant guidance (TAN 15) in relation to flood risks; he also was concerned about the adverse visual impact of the proposal. I also consider that such an application would have been highly controversial and strenuously opposed by local interests. Overall, the balance of the evidence supports a finding of great uncertainty as to the outcome of such an application and my assessment is that the prospects of obtaining such a permission were low.

I have separately considered the findings on causation which it would be appropriate to make if I had held that Mr Albutt was negligent in writing the email of 14 August 2009. I have already held that that email was unclear but that did not amount to negligence on his part. If I am wrong about that and it was negligent to express himself in an unclear way, which could be interpreted as making an incorrect statement of law, what were the consequences?

I first consider whether anyone relied upon the email of 14 August 2009. I have earlier held that the email was not shown to Mr and Mrs Thomas or Mr Davies. The only person who might have relied upon it was Mrs O’Connor. She said that she understood it to mean that, in the absence of wrongdoing, compensation would be payable following a quashing of the planning permission. She also said that she was confused as to what the position was. In so far as she thought that compensation might be payable following a quashing of the planning permission, it is likely that her thinking was much more influenced by the incorrect advice which she knew Mr Davies had given rather than the passing reference to compensation in this email. Nonetheless, it might be argued that Mr Albutt’s email in some small way contributed to her thinking that there was a possibility of compensation following the quashing of the planning permission.

If Mr Albutt had not made the passing reference to compensation in that email, then he could not be said to be negligent. If he had not made that reference to compensation, then Mrs O’Connor’s state of mind would have continued to be influenced by her knowledge of the advice given by Mr Davies. If Mr Albutt had unnecessarily made a different passing remark which correctly stated that compensation was not payable following the quashing of the planning permission, then I do not think anything would have been changed. He had given this advice in conference on 6 January 2009 and he had correctly described the matter in the AOS and in his skeleton argument for the permission hearing. On 29 September 2009, he correctly advised that compensation would not be payable following a quashing of the planning permission.

Further, if Mr and Mrs Thomas had been told in clear terms, in or after August 2009, that compensation would not be payable if the planning permission were quashed, I do not think that they would have acted differently. I have already dealt in detail with the question of what they would have done if they had been clearly advised that they would probably succeed in resisting the judicial review. They were committed to resisting the judicial review. Assuming that at least for some of the time they thought that they would receive compensation in some circumstances where their resistance failed, they still resisted it. It would have been even more important to them to resist if they had been fully aware that no compensation would be payable if the judicial review succeeded.

I have held that Mr Albutt was negligent in failing to advise that Mr and Mrs Thomas should prepare and serve evidence as to prejudice for the permission hearing. If Mr and Mrs Thomas had been advised to prepare and serve evidence as to prejudice at that stage they would probably have done so. For the purpose of considering what, if any, loss they suffered in consequence, I begin by investigating the content of the evidence which might have been prepared.

The evidence as to prejudice for the permission hearing should have dealt with both non-financial prejudice and financial prejudice. As regards the non-financial prejudice, the best guide as to what they could have put in evidence at the permission stage would be what they later said as to harassment and stress and the choices they had made about moving out of farming and into the business of running a camp site. They could have stressed their commitment to the farm and the campsite and the importance of it for themselves and their children. As to financial prejudice, they should have been advised to give evidence about their capital expenditure on the site. It may well not have been easy for them to produce precise figures as to this expenditure but they could have concentrated on the more significant items and, if necessary, provided estimates of the expenditure. As to the income which they had received from the camp site, if it were not straightforward for them to give precise figures, then they should have provided estimates. It would be relevant to prepare evidence as to the net profits from May 2006 up to 2009 and, if possible, predictions as to net income thereafter. In that way, they would be able to identify what they had spent to date and how long it would take them to recover their expenditure from future income.

Evidence of this kind would be relevant if the question were as to what they would lose if the planning permission were to be quashed. Although it was possible that the court might be prepared to address section 31(6) at the permission stage, Mr and Mrs Thomas should have been advised to concentrate on showing, if they could, how they were worse off as a result of the judicial review being brought in February 2009, rather than within three months of 21 June 2005. That would seem to be the relevant comparison for the purpose of considering whether to extend time for an application for judicial review. That might have given rise to a hypothetical question: would they have started the camp site in or after May 2006 if there had been a timely challenge to the planning permission granted on 21 June 2005? If they would not have started the campsite, then they would not have incurred capital expenditure on it but, equally, they would not have received any income from it.

The next question is what would, or might, have happened at the permission stage if they had prepared and served evidence of this kind? It is accepted that I should answer that question on the basis that the permission hearing was before Wyn Williams J, rather than another judge, and I should take into account the views he expressed on 15 June 2009 in relation to the matters before him. In other words, I should not attempt to predict the decision which would be reached by a hypothetical judge who would have to assess all of the relevant issues, including the question of delay and prejudice.

I have already described the course of the hearing before Wyn Williams J and the comments he made and the decision he reached. I will make two findings as to what decision he would have reached if he had before him the further evidence which could have been served on behalf of Mr and Mrs Thomas, as described above. I will first consider whether Wyn Williams J would have reached a different decision from that which he did reach. I will then consider whether the extra evidence would have improved Mr and Mrs Thomas’ prospects of persuading Wyn Williams J to refuse an extension of time and/or permission to seek judicial review and, if so, to what extent. Mr Jourdan submitted that I should err on the generous side in arriving at my assessment of Mr and Mrs Thomas’s prospects of success before Wyn Williams J. He submitted that I should bear in mind that I have held that they lost the opportunity to benefit from those better prospects by reason of the negligence of Mr Albutt. It was said that the evidential burden is therefore on Mr Albutt to show that those better prospects were modest or negligible and that I should make a generous assessment of those prospects. This is how matters are described in Mount v Barker Austin [1998] PNLR 493 at 510-511, which was followed in Sharif v Garrett & Co [2002] 1 WLR 3118 and Sharpe v Addison [2004] PNLR 23 and many other cases.

If the extra evidence had been before Wyn Williams J, then I consider on the balance of probabilities that he would have reached the same decision as he did reach. Nonetheless, plainly such evidence would not have harmed Mr and Mrs Thomas’ prospects of success and might have had the potential to improve them. However, I think that the improvement would have been very limited. The authorities in this area of the law direct that if I found that the prospects were nil or negligible than I should disregard them and I do not need to assess them further. The cases also say that if I thought that the prospects were 10% or less, then I should regard them as negligible. I find it very difficult to estimate in percentage terms what the improvement in prospects would have been. Doing the best I can, and bearing in mind the encouragement in the authorities to make a generous assessment, I would estimate the improvement in prospects in percentage terms in a range of between 5% to 10%. In law, such an enhancement of the prospects of success is negligible and is disregarded for the purposes of awarding damages.

My reasons for the above conclusions as to what might have happened with extra evidence are these:

Mr Jourdan says that I should award damages to Mr and Mrs Thomas for the loss of the chance that Mr and Mrs Thomas might have been able, with better evidence, to persuade Wyn Williams J to refuse permission and/or refuse an extension of time. I have held that the chance of persuading the judge in that way with the deployment of additional evidence was a 5% to 10% chance, was therefore negligible and should be disregarded. Mr Jourdan did not know at the time he made his submissions what my assessment of this chance would be. However, his submission did not depend on the amount of this particular chance and ran as follows. He submitted that Mr and Mrs Thomas had a chance at the hearing on 15 June 2009, without the extra evidence, of X%. If they had put in the extra evidence, then their prospects would have been enhanced by Y% giving a total prospect of X% plus Y%. He submitted that they were entitled to damages of X% plus Y% of the benefits which they would have enjoyed if permission and/or an extension of time had been refused on 15 June 2009. Mr Elkington submitted that the damages would be Y% of those benefits, assuming always that Y% was greater than 10%.

Approaching the matter as one of principle, it seems to me that Mr Elkington is right about this. Mr and Mrs Thomas did not lose the chance of X%; they enjoyed the benefit of that chance. Their case, with an X% chance of success, was argued before Wyn Williams J and it failed.

Counsel referred me to three authorities on this point. They were Acton v Graham Pearce & Co [1997] 3 All ER 909, Channon v Lindley Johnstone [2002] PNLR 41 and Boyle v Thompsons [2012] PNLR 17.

In Acton v Graham Pearce & Co, the plaintiff solicitor was charged with a criminal offence. The defendant firm of solicitors negligently conducted his defence at this trial. The plaintiff pleaded not guilty but he was convicted. He then successfully appealed to the Court of Appeal which quashed the conviction. The plaintiff claimed damages for negligence. The judge (Chadwick J) held that the plaintiff could show that he had a substantial chance, if his defence at trial had been competently conducted, of being acquitted. The judge assessed that chance at 50%. He then awarded the plaintiff 50% of the losses which flowed from his conviction before it was later quashed. Mr Jourdan is entitled to say that the 50% figure in that case was, to use my earlier example, X% plus Y%, rather than Y% alone. At the criminal trial which was negligently conducted, I assume that it could be said that the plaintiff had a percentage chance (X%) of being acquitted but yet X% was not deducted from the award of 50%. However, any pesuasive authority which the decision might have had is reduced because there is no consideration of the present point which does not appear to have been argued.

In Channon v Lindley Johnstone, the defendant solicitors represented the claimant in proceedings brought against him by his former wife, seeking financial relief. In those proceedings, which were negligently conducted by the defendant solicitors, the claimant was ordered to make certain transfers or payments to his former wife. On the question of damages, the Court of Appeal held that the best result which the claimant could have hoped for in the financial relief proceedings was an award which would have cost him £44,200 less than the actual award. It was held that the damages awarded to him in the negligence proceedings should represent his chance of achieving that best result. It was held that he did not have a certainty of achieving that best result and his prospects of doing so should be discounted by 20% and he should be awarded 80% of £44,200.

In Boyle v Thompsons, it was held that the defendant solicitors had not been negligent in their conduct of an application by the claimant to the Criminal Injuries Compensation Board for compensation and, even if they had been negligent, the claimant had suffered no loss. In the further alternative to these findings, the judge (Coulson J) held that damages would be assessed as the loss of a chance that the claimant would have obtained a higher award. He applied the approach of the Court of Appeal in Channon v Lindley Johnstone, he considered what the amount of the additional award might have been and awarded loss equivalent to a 25% chance of obtaining that award.

The reasoning in the last two cases is not identical to the approach I have identified as appropriate in this case but then the nature of the dispute was rather different and it could be said that the approach is more consistent with an award in this case of Y% rather than an award of X% plus Y%. Indeed in Boyle v Thompsons, Coulson J at [93] asked himself “by what percentage would her prospects have been improved”; that way of asking the question is consistent with my approach of asking by what percentage the pre-existing X% would be improved by adducing further evidence. I do not however, regard this as a clear statement of principle as the nature of the problem in that case was rather different.

Having considered these authorities, I conclude that I should decide this point in accordance with my understanding of the underlying principles. Mr and Mrs Thomas’ claim is for the loss of a chance; they are not to be compensated for a chance which they enjoyed and did not lose. As a matter of principle, the correct approach is to award them damages assessed as Y% of the benefit of succeeding before Wyn Williams J. However, since I have held that Y% in this case is negligible, there will be no award of damages.

I have already held that Mr Albutt was not negligent in relation to the shortcomings in the evidence as to financial prejudice which was prepared for the substantive hearing before Ouseley J. I have also held that Mr and Mrs Thomas must bear primary responsibility for what they now say was the erroneous statement in Mr Thomas’ witness statement that the income from the caravan park for the period from March 2009 was £10,000 per week. It is therefore not necessary for me to determine what different evidence could have been produced for the substantive hearing nor what the result might have been if different evidence had then been produced. However, in case it might be of assistance, I will address both of those matters.

As to the different evidence which could have been produced I consider it is more probable than not that Mr and Mrs Thomas could have shown that during the period of delay, before the UVCG brought its challenge to the planning permission, the income from the caravan site was significantly less than their expenditure on the site. I also consider that they could probably have shown that in the medium to long term, the caravan site would have been profitable. I will next consider what might have happened if that evidence had been before Ouseley J.

I will make two findings as to what decision Ouseley J would have reached if he had before him the further evidence which could have been served on behalf of Mr and Mrs Thomas, as described above. I will first consider whether Ouseley J would have reached a different decision from that which he did reach. I will then consider whether the extra evidence would have improved Mr and Mrs Thomas’ prospects of persuading Ouseley J to refuse to quash the planning permission and, if so, to what extent.

If the extra evidence had been before Ouseley J, then I consider on the balance of probabilities that he would have reached the same decision as he did reach. Nonetheless, plainly such evidence would not have harmed Mr and Mrs Thomas’ prospects of success and might have had the potential to improve them. However, I think that the improvement would have been very limited. I find it very difficult to estimate in percentage terms what the improvement in prospects would have been. Doing the best I can, and bearing in mind the encouragement in the authorities to make a generous assessment, I would estimate the improvement in prospects in percentage terms in a range of between 5% to 10%. In law, such an enhancement of the prospects of success is negligible and is disregarded for the purposes of awarding damages.

My reasons for the above conclusions as to what might have happened with extra evidence are these:

I can summarise my findings as follows: