Neutral Citation Number:  EWHC 567 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Wednesday, 3 March 2010
B e f o r e:
MR JUSTICE NICOL
ELMBRIDGE BOROUGH COUNCIL
(1) GLADEDALE GROUP LIMITED
(2) NETWORK RAIL INFRASTRUCTURE LIMITED
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Mr D Smith (Mr R Buxton appeared for judgment only, instructed by Richard Buxton Solicitors) appeared on behalf of the Claimant
Mr S Bird QC and Mr A Ranatunga (instructed by Council Solicitors) appeared on behalf of the Defendant
Miss M Cook (instructed by Denton Wilde Sapte) appeared on behalf of the First Interested Party
Mr G Jones (instructed by Clifford Chance) appeared on behalf of the Second Interested Party
J U D G M E N T
(As Approved by the Court)
1.1. MR JUSTICE NICOL: I have been considering the claimant's application for a protective costs order, ie an order that, if he should be unsuccessful in his application for judicial review, he should not be required to pay the costs of the defendant or either of the interested parties. Alternatively, he would seek an order that his liability for costs should be capped at an amount set by the court.
1.2. The decision which the claimant wishes to challenge is that of the Elmbridge Borough Council to grant planning permission to the two interested parties for the development of a site that includes Hampton Court Station and neighbouring land, referred to as the Jolly Boatmen site. It is in Hampton Court Way, East Molesey, Surrey. The site is on the opposite bank of the River Thames from Hampton Court Palace. There are two principal grounds of challenge which, in summary, are as follows. First, it is said that the defendant failed to have special regard to the desirability of preserving the setting of a listed building, namely Hampton Court Palace. This would have been contrary to the obligation in section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Second, the site is vulnerable to flooding. Planning Policy Statement 25 sets out the procedure which a local authority should normally go through when dealing with an application concerning such land. It should normally apply what is known as the "sequential test" in brief consider whether the development could take place alternatively on land which was less vulnerable to flooding. Only then should it move to consider whether the criteria are fulfilled so as to justify an exceptional grant of planning permission. Here, it is said, the defendant did not first consider the sequential test. The planning proposal had followed a brief which was set before PPS25 had its present form. The claimant argues that this should not have led to the sequential test simply being set aside, at least not without reasoning which is said to have been absent from the defendant's decision.
1.3. The claimant lives in London SW11. He is not therefore a resident of the defendant's borough, or a neighbouring authority, nor is he a local elector. However, for 10 years and until 2004 he worked for Historic Royal Palaces ("HRP"). They have responsibility for the management and conservation of the Royal Palaces, including Hampton Court. He is particularly interested in Hampton Court. In 2007 he lodged an objection with the defendant when an earlier development application had been made for the same site. This application was known as the "Boathouse Scheme". The Boathouse Scheme was refused by the defendant. The claimant did not write to object to the present application, which has been referred to as the "Classical Scheme". He says that, although there are some differences in the design of the two schemes, there is a common objection to the two in principle on the grounds of their inappropriate mass, scale, height and density.
1.4. Planning permission was granted for the Classical Scheme on 16 June 2009. The claim form was lodged on 14 September 2009.
1.5. There were two witness statements lodged with the claim form: one from the claimant; the other from Lisa Foster, who is a Californian lawyer employed by the claimant's solicitors. Ms Foster made clear that the claimant would be seeking a protective costs order. I will return to that witness statement later.
1.6. The defendant and both interested parties entered acknowledgments of service. They submitted that neither ground of challenge had any merit, but also contended that the claimant did not have sufficient interest to bring this application. They further argued that, although the claim had been brought within three months of the grant of planning permission, it had not been brought "promptly" as CPR 54.5(1)(a) requires. They opposed the application for a protective costs order. The claimant submitted a reply to the three acknowledgments of service.
1.7. On 9 December 2009, George Bartlett QC, sitting as a Deputy Judge of the High Court, considered the matter on the papers. He refused the claimant permission to apply for judicial review. He said:
"There was a failure to give a summary of the reasons for granting permission in accordance with Article 22(1) of the Town and Country Planning Act (General Permitted Development) Order 1995, as the defendant accepts. Such a failure may well not justify the grant of permission where it is otherwise apparent that the planning authority have taken into account and weighed properly the relevant policies and other material considerations. Here, however, the Council were required to have special regard to the desirability of preserving the setting of Hampton Court Palace, and, in view of the duty, an important issue was whether the river frontage of the site should be kept free of substantial development. There is in any view a clearly arguable case, as evidenced by the officer's report, that, while detailed consideration was given to the design of the proposed buildings, the Council failed to apply the statutory requirement, of which there is no mention in the report, and failed to address this important issue, which the report does not discuss, by reference to it.
There is no reasonably arguable case on the application of PPG25, in my view. This matter, which was not apparently of concern to the claimant at any earlier stage, was dealt with in paragraphs 8.4.1 to 8.4.6 of the officer's report in a way that appears to me to address properly both the sequential test and the criteria in the exception test.
Had the claimant objected to the application for planning permission, he would have had sufficient standing. On what is not simply a local issue but one of national significance because of the importance of Hampton Court Palace, his interest, as a person concerned with the protection of historic buildings, and the Palace in particular, and as one whose views appear to accord with those of many individuals and groups, including Historic Royal Palaces, would have qualified him to bring proceedings. I would also have considered it an appropriate case for a protective costs order. But he did not object to the application, despite the fact that the Committee resolution in December 2008 to grant permission must have alerted him to the need for the Council, when determining the applications in June 2009, to consider the issue of keeping the river frontage substantially free of development. Not having sought to influence the decision, I do not think that he has sufficient standing.
In addition the application was not made promptly, in that over five weeks elapsed before he sought legal advice and a further five weeks elapsed before the pre action protocol was issued. It appears that delay is financially prejudicial to the charity the Royal Star and Garter.
Despite the importance of the issue that the claimant seeks to bring before the court I do not think in these circumstances that permission should be granted."
1.8. On 16 December 2009 the claimant gave notice of his intention to renew his application for permission to apply for judicial review at an oral hearing. That hearing was listed for 2 March 2010.
1.9. On 24 February 2010 the claimant issued an application notice asking for the hearing on 2 March to be vacated. He asked that the question of permission be adjourned to a "rolled up", or combined permission and substantive, hearing. He asked that the issue of a protective costs application be decided on the papers.
1.10. There was not time for me to consider the reasonably voluminous papers in the case and the various written submissions before 2 March. Accordingly the hearing was not vacated.
1.11. However, on that day the defendant and interested parties agreed that the claimant's proposal for a rolled up hearing should be accepted, although they were keen that this should come on with reasonable expedition.
1.12. That left the issue of whether a protective costs order should be made. The first interested party (Gladedale) indicated that it would not be seeking an order that the claimant pay its costs even if the judicial review application was dismissed. So far as its costs were concerned, the application for a protective costs order was therefore academic. For the defendant and the first interested party (Network Rail Infrastructure, hereafter "Network Rail") the issue was potentially a real one. They opposed the making of a PCO. In the alternative, they asked that, if one was to be made, an order should also be made limiting their costs liability in the event that the judicial review application should be successful.
1.13. For the principles to be applied in relation to a PCO, both parties referred me to R(Corner House Research) v the Secretary of State for Trade and Industry  1 WLR 2600. At paragraph 74 Lord Phillips MR said this:
"74. We would therefore restate the governing principles in these terms:
1. A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:
i) the issues raised are of general public importance;
ii) the public interest requires that those issues should be resolved;
iii) the applicant has no private interest in the outcome of the case;
iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order;
v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
2. If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.
3. It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above."
1.14. Paragraphs 75 and 76 of Corner House are relevant to the defendant and second interested party's alternative argument that there should be a reciprocal cap on the costs which the claimant should be able to recover if successful. I will return to this argument in due course.
1.15. The claimant also relies on Article 10A of Directive 85/337/EEC. This says:
"Member states shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively,
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition,
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
Any such procedure shall be fair, equitable, timely and not prohibitively expensive."
1.16. The defendant and Network Rail agreed that the claimant had no private interest in the outcome of the case (see Corner House paragraph 74(1)(iii)), but they otherwise disputed that the Corner House threshold conditions for a PCO were made out. I turn to those.
Are the issues in the case of general public importance and does the public interest require that they should be resolved?
1.17. The parties were agreed that these two issues can be best considered together. I also agree. Since I had put over the question of permission to a rolled up hearing, neither the defendant nor Network Rail submitted that I should take into account any view that I might have as to the merit of the claimant's challenges, nor the fact that, as things stand, the claimant has been refused permission to apply for judicial review by Mr Bartlett. I am less sure that this was the correct approach, or whether the judge's view as to the strength or otherwise of the claimant's case is a proper matter to be taken into account in deciding whether the public interest requires the issues in the case be resolved or, more generally, whether a PCO should be made in the exercise of the court's discretion. In Corner House the Court of Appeal was keen to discourage time consuming ancillary litigation which it feared would be the result if the bar was set any higher than a realistic prospect of success. It did say at paragraph 73, "we consider that no PCO should be granted unless the judge considers that the application for judicial review has a real prospect of success." However, I recognise that the Court of Appeal was not there considering a case, like the present one, where there are good reasons for ordering a rolled up hearing of permission and the substantive application. One consequence of that might be (as the defendant and Network Rail suggested) that the question of a PCO should also be deferred until the same rolled up hearing. I, however, rejected that alternative. Putting off a decision as to a PCO in this way would subvert the whole purpose of the PCO, which is to provide a claimant of limited means with the reassurance (in a suitable case) that he either will not be exposed to an adverse costs order at all, or that any such potential liability will be limited.
1.18. Whatever my doubts though, I will proceed on the basis which all the parties suggested, that is to consider the application without further investigation of the merits of the underlying challenge.
1.19. The claimant submitted that the challenge was of general public importance. The Listed Building challenge is said to be of great importance. Hampton Court is an iconic public building. The views of the palace and its grounds from the site would be affected by the development. The development would also adversely affect the setting of the bridge between the site and the Palace. This bridge, designed by Lutyens, is itself a Grade 2 Listed Building and an important monument. The legality of the Council's approach to the flood risk issue is also of general importance. If a Council can rely on a development brief prepared before PPS25 to justify sidestepping the sequential approach, this will have consequences for other authorities and other developers. The claimant notes that Mr Bartlett thought that the Listed Building argument was clearly arguable, raised an important issue and, but for his view that the claimant lacked standing and had not apply to the court sufficiently promptly, would have led him to make a PCO.
1.20. The claimant also argues that the importance of the issue is reflected in HRP's objection to the development. He also notes that English Heritage were opposed to the principle of the development contained in both the Boathouse and the Classical Schemes (although he accepts that their opposition was stronger to the former and it considered that the design features of the latter reduce the disadvantages of the development for which planning permission was given).
1.21. The defendant and Network Rail do not accept that the claim raises matters of general importance. While HRP did oppose both schemes, the position of English Heritage was different. It had urged the Council to consider creating a landscaped park with some modest and sympathetically designed facilities for visitors and residents. It said that it thought that this would best achieve the object of enhancing the setting of the Palace and the station. However, it then distinguished between the Boathouse Scheme to which it was opposed and the Classical Scheme. If the former was adopted it said that it would need to consider very carefully whether it should advise the Secretary of State to call in the application for her determination. Of the Classical Scheme it said:
"Its design, appearance and architectural vocabulary all respond in a significantly more sympathetic fashion to this highly sensitive location and to the prevailing character of the place. The vernacular adopted harmonises with the varied but domestic scale of the architecture along this stretch of the Thames and, if built, would have an infinitely less damaging impact upon views to and from the Palace and the environs of the Jolly Boatmen site than the original proposal ... English Heritage considers that the latest proposals for the hotel building respect [advice published in April 2008] and are based on a proper understanding of the significance of the place. The design for the new hotel is appropriate to its immediate and wider setting on both sides of the Thames ... if development on the site between the Station and the Thames is acceptable as a matter of principle, the designs submitted [as part of the Classical Scheme] represent the most appropriate response to the site."
1.22. The defendant and Network Rail also observe that the Secretary of State did not call in the application as he could have done.
1.23. As for the flood risk ground of challenge, they argued that this challenge simply raised an issue of local importance, namely whether on the facts of this case the defendant's approach to PPS25 had been lawful.
1.24. On this issue, I prefer the arguments of the defendant and Network Rail. I agree that the flood risk issue is one whose importance does not significantly extend beyond the facts of this case. As with any court judgment, it may involve considerations of matters of wider generality, but in essence the argument is simple and specific to the facts of the present case.
1.25. The Listed Building argument is more finely balanced. Of course Hampton Court is a building which has a national significance and it is a Grade 1 Listed Building. However, this development does not directly impinge on the Palace. I acknowledge that the Listing Buildings Act seeks to protect not only the buildings themselves, but also their setting. In this context, the views of English Heritage are of particular importance. It is the Government regulator for Listed Buildings. Circular 01/01, paragraph 10, requires English Heritage to be notified of any planning application for development likely to affect the setting of a Grade 1 Listed Building. It does appear from its letter of 6 August 2008, from which I have quoted, that English Heritage's preference would have been for the site to have other uses. That, though, is not the point. The impact of a development on the setting of Hampton Court would be a combination of a development in principle and the building's particular design. English Heritage did set down a marker as to its opposition to the Boathouse Scheme. It did not take the same view of the Classical Scheme. Whatever reservations it had about the principle of development on this site, in my judgment its final conclusion on the Classical Scheme is clear. It did not regard its impact on the setting of the Palace as so dire as to cause it to register opposition.
1.26. I say that the views of English Heritage are of particular importance. I put less weight on the omission of the Secretary of State to call the matter in since other factors may have been in play and because, I was told, this power of the Secretary of State is very sparingly exercised. The opposition of HRP is to be noted, but HRP's role in the planning process is not on a par with English Heritage's. While it may be informally consulted in matters that may impinge on the Royal Palaces, the obligation to consult it is not recognised in the Government Circular in the way that English Heritage's is. Nor does it have English Heritage's Regulatory role. I respect, of course, the contrary view of Mr Bartlett. However, I have had the benefit of more detailed argument and have had to make up my own mind.
1.27. I conclude that the claimant's challenge is not one where the issues in the case are of general public importance and which the general public interest requires to be resolved. I turn to the next questions. Those are:
1.28. Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved, is it fair and just to make the order; and if the order is not made will the applicant probably discontinue the proceedings and be acting reasonably in so doing?
1.29. Even if I was wrong about the general public importance of the case, I am quite clear that the claimant has not satisfied me of the these next matters.
1.30. So far as the claimant's resources are concerned, the only evidence that I have is the witness statement of Ms Foster. She said:
"Individually [the claimant's] funds are limited, but he had agreed to be responsible for the cost of lodging proceedings up front so that the proceedings could be brought within the required time frame, rather than fall outside the 3 month limit.
Given his individual limit on funds, he could not and would not afford to take on the risk of fighting a judicial review without costs protection. If the PCO is no granted, I am instructed that he would have no option but to withdraw from the proceedings or find a substitute claimant."
1.31. In his witness statement the claimant said only this:
"During this period from 1 September I then had to consider if my funding would permit me to proceed and whether I could raise a community fund to help depending on Elmbridge's response to the pre action letter. Once we had Elmbridge's response on the 7th, I decided I would act individually as the claimant and set up [a] fund which local residents could contribute to. Because I was concerned about an adverse cost award in the event the claim was unsuccessful, it has been explained to me that I am acting on a matter of great public interest, in a situation where the HRP hasn't acted although the advice of counsel is that the permission is potentially unlawful."
1.32. In my judgment, the defendant and Network Rail were entitled to observe that the lack of information about the claimant's resources was striking. Ms Foster's statement is vague in the extreme. It entirely lacks the detail which would allow the defendant and Network Rail to test it, or for the court to determine its accuracy. Even these general comments about the claimant's means are presented in just her witness statement. They are not endorsed, let alone elaborated on, in the claimant's own witness statement beyond the even vaguer statement that he was "concerned about an adverse costs order". The point as to the paucity of evidence on this issue was taken clearly in the acknowledgments of service. Yet there has been no evidence subsequently to fill that gap. The claimant has provided a second witness statement which speaks to his standing to bring these proceedings, but that, too, is silent on the question of his resources.
1.33. Mr Barnes, the Director of Conservation and Learning at HRP, has provided a witness statement in which he says that the claimant has his organisation's full moral and some limited financial support. The amount is not specified in the evidence, but the claimant's reply to the acknowledgment of service says that it amounted to £5,000. In the course of submissions, I was told that the claimant had contributed £2,000 to the fund for costs, and other donations had amounted to about £1,630.
1.34. The claimant submits that Article 10A of the Directive requires that legal proceedings to challenge environmental decisions should not be "prohibitively expensive". I do not think that that takes the matter any further. It is impossible to tell whether the proceedings would be "prohibitively" expensive unless there is information about the resources which the claimant would have available to fund them. That evidence is simply lacking.
1.35. Because I have insufficient evidence as to the claimant's financial position, it is also not possible for me to determine whether it would be reasonable for him to discontinue the proceedings if a PCO is refused. Of course, in a general sense, legal proceedings can be very expensive. But generalities of that kind are not much use. They have to be related to the financial position of the particular claimant.
1.36. The insufficiency of evidence as to the claimant's financial resources, in my judgment, is a clear reason why the application for a PCO must fail.
1.37. It is not necessary for me to consider the criticisms that the defendant and Network Rail made of the claimant's estimate of his costs.
1.38. In these circumstances I refuse the application for a PCO.
1.39. Consequently, it is also unnecessary for me to consider the alternative position of the defendant and Network Rail. The question of a reciprocal cap on their liability for costs in the event that the claimant is successful does not arise.
1.40. Mr Buxton, I had a message that, in Mr Smith's absence, you wanted to be able to speak. I am perfectly happy for that to happen.
1.41. MR BUXTON: My Lord, thank you.
1.42. MR JUSTICE NICOL: The onus may lie at the moment on anything you want to say in reaction to my judgment. I will hear from you in due course.
1.43. MR RANATUNGA: My Lord, for today's purposes, I appear on behalf of the Borough Council. From your Lordship's judgment it is plain that the application for a protective costs order fails, not only on the general public importance limb, but also on the insufficiency of evidence, both of which were taken in the acknowledgment of service, and with regard to the latter, was not corrected, and clearly could have been corrected with financial information before the hearing. In the circumstances, my Lord, I apply for the Council's costs of fighting the hearing and succeeding, so costs of yesterday, which, in my submission, should follow the normal course of events, which is costs follow the event. The application has failed.
1.44. MR JONES: My Lord, can I just say first of all
1.45. MR JUSTICE NICOL: No apologies needed. I understand. I got your message. I am sorry, I had to continue with the judgment because I have other duties this morning.
1.46. MR JONES: My Lord, although we can make the same points as my learned friend, we are not seeking our costs of today's hearing or yesterday's hearing, my Lord.
1.47. MR JUSTICE NICOL: Miss Cook?
1.48. MISS COOK: My Lord, I am not making any application for costs. As I indicated, my main concern is directions and expedition.
1.49. MR JUSTICE NICOL: Thank you.
1.50. MR BUXTON: My Lord, with regard to costs, the position is that it is accepted that we failed in our application for a protective costs order. This was an application that was made on paper, and had permission been granted by Mr Bartlett, we would have assumed that it would be granted. It has understandably been refused by your Lordship. The normal tariff, if I may put it that way, for protective costs orders is if they are refused, according to the Corner House judgment are you familiar with this, my Lord?
1.51. MR JUSTICE NICOL: Yes, I am.
1.52. MR BUXTON: It is paragraph 78 and 79 of Corner House. There is a liability of a cap of £1,000 which would be expected if it was on paper, which in a sense we had hoped for yesterday, and £2,500 if there is an appeal from an original refusal of a protective costs order, and it goes to an oral hearing which is in turn refused. Obviously we are in somewhere in between territory on this particular application, and we have explained, although evidently with insufficient explanation as to the detail, but our client is in there are severe funding constraints on this matter, and we would ask for your Lordship to exercise discretion with regard to the amount having regard to those two figures, and having regard also to the fact that the hearing yesterday was in fact listed not just to consider the protective costs order, but also to consider the permission issues, which would normally attract no costs from the opposing parties at an oral permission hearing. So I accept that a lot of yesterday was taken up with the protective costs order, but my opponents would have been there in any event. That is my position, my Lord.
1.53. MR JUSTICE NICOL: Mr Ranatunga? I cannot remember if I have seen a schedule of costs, have I?
1.54. MR RANATUNGA: My Lord, I accept I do not have a schedule today, but that can clearly be dealt with in the direction the court makes. It could be the defendant's costs, to be assessed if not agreed.
1.55. MR JUSTICE NICOL: It can be. If the hearing takes less than a day, the normal rule is that the court is not keen to put matters over for a detailed assessment. It ought to deal with them summarily. In order to deal with them summarily, it needs to be provided with information.
1.56. MR RANATUNGA: My Lord, it may be that I can take very brief instructions on that. It is only in relation to the hearing. (Pause)
1.57. My Lord, I am instructed that costs were £2,500 for counsel and £500 for solicitor's costs for attending court. My Lord, those are the costs. My Lord, those are the costs. There are costs of today, but perhaps we can forego those for the purposes of the application. So £3,000.
1.58. MR JUSTICE NICOL: Mr Buxton, do you want to say anything in reply to that?
1.59. MR BUXTON: My Lord, in the normal course of events, if this was a normal hearing, I would have little to say to that, but this is a case where we clearly have guidance from the Court of Appeal as to what the level of costs should be for imposing a protective costs order application, and if these are and I can only talk about my experience in this sort of situation, where the court has come to an oral hearing somewhat unexpectedly, and one case I have in mind in the Divisional Court is they did not apply the full cap either.
1.60. MR JUSTICE NICOL: Corner House was five years ago. Prices have changed since then. I also have in mind that the hearing yesterday was preceded by quite extensive exchanges of written submissions on the protective costs issue, which in the ordinary way could be claimed as part of the costs. Unless there is anything else you want to say?
1.61. MR BUXTON: In relation to the written submissions, it was accepted by all parties that the PCO application would be done on paper.
1.62. MR JUSTICE NICOL: It seems to me that, consistent with the Corner House decision, the unsuccessful applicant for a protective costs order must accept that, so far as the costs of the application itself are concerned, he is at risk as to those. I order him to pay the costs of the application for protective costs. Because the application was dealt with in just one day, it also seems to me that it would be right for me to assess those costs summarily. Although a schedule has not been provided, I have been given oral information about counsel's costs and the solicitor's costs of attendance, and those seem to me to be both reasonable and proportionate. I do bear in mind that there was some exchange on paper on this issue, which would also have incurred costs.
1.63. In the Corner House case given in 2005, the Court of Appeal indicated that they would not expect the costs of a paper refusal of a PCO to exceed £1,000 and an oral hearing to exceed £2,500. Bearing in mind that that was a decision of five years ago, bearing in mind also that the application that I have considered had features both of paper submissions and oral hearing, I consider that the sum of £3,000 is reasonable and proportionate, and that is the sum that I will summarily assess these costs in. For the avoidance of doubt, £3,000 includes VAT.
1.64. MR BUXTON: Thank you, my Lord. I have two applications: one heralded, if I may put it that way, my Lord, and one application. The application is for permission to appeal to the Court of Appeal on this point, which is plainly, as your Lordship is probably aware, a matter of very wide interest and importance, particularly in light of the Jackson report, in the light of developments, and in light of the fact that there is a tension, as discussed yesterday, between the Aarhus Convention and the requirements of Corner House. I respectfully suggest that, despite your Lordship's observations on the matter, particularly in relation to the sorts of information which a prospective applicant for a PCO should put forward, there are and indeed in the context of the public interest in this case there are serious issues that would engage the interest of the Court of Appeal and real prospects of success there. My Lord, I seek permission to appeal.
1.65. The second application which I make by way as, as it were, heralding, because I do not propose to make it today because it is a complicated point, but in essence your Lordship's judgment relies on the question of public importance on the one hand, and on the question of the evidence of ordinary people's means which they need to put to the court to get protective costs orders. Protective costs orders themselves are a species, or one way of this sort of litigation be able to proceed. As your Lordship observed yesterday, or it was observed, after the event insurance is not available, and so access to justice in these types of cases is severely curtailed by the sorts of situation in which we are now.
1.66. Your Lordship is quite understandably constrained by the decision of the Court of Appeal in Corner House, and other decisions, for example Buglife, which also cause difficulties with this type of case. I am heralding the fact that this is a case where we would consider applying for a certificate to take the matter to the Supreme Court, which I have been I do not know if I am speaking out of turn but I am in the process of considering these issues in other proceedings.
1.67. MR JUSTICE NICOL: You are asking me to provide a certificate, or you are indicating that you might in due course ask the Court of Appeal to provide one?
1.68. MR BUXTON: No, my Lord, the process, as I understand it, is that we have a right to ask you to grant permission to appeal to the Court of Appeal, and if that is refused, then we have a right to apply for permission to the Court of Appeal within 21 days.
1.69. MR JUSTICE NICOL: That is correct.
1.70. MR BUXTON: On the other hand, in circumstances like this, in circumstances where the High Court and indeed the Court of Appeal is bound by its own decisions, for example
1.71. MR JUSTICE NICOL: You are talking about a leapfrog certificate?
1.72. MR BUXTON: I am talking about a leapfrog certificate, yes. We can apply for a certificate from your Lordship within 14 days. This is a matter of public importance and, subject to other conditions, a leapfrog certificate should be granted. One of the conditions is that all the other parties agree, and this is a case where, as was made quite clear yesterday, the interested parties and indeed the Council would no doubt want to avoid any unnecessary delay if this was an appropriate matter.
1.73. MR JUSTICE NICOL: Whether or not you apply for that is a matter for you to decide with whatever advice you want to take. You need to bear in mind the two routes that you have described are not things that can be done in combination. It is either going to the Supreme Court if leave is granted, but if leave is granted and taken up, then that is the route you ought to follow, rather than the route of appealing to the Court of Appeal.
1.74. MR BUXTON: We certainly would not wish to follow both.
1.75. MR JUSTICE NICOL: You are not asking for
1.76. MR BUXTON: I am not asking for it, but I thought it would be helpful to say that this might happen, so that, for example, your Lordship might want to hold the papers for a few days.
1.77. MR JUSTICE NICOL: Right, permission to appeal, do any of you want to say anything about that? Mr Ranatunga?
1.78. MR RANATUNGA: Your Lordship's judgment makes plain that, with regard to the limb of real prospects of success, the application failed under both the general public importance limb, but also the insufficiency of financial means. In my respectful submission, my Lord, that is not something which goes to the heart of the Corner House case, but actually goes to the finer points of it and whether evidence can be produced, and the point I have made already, my Lord, is that that is something that could have been remedied on the mechanics of this case, not to the principle of protective costs orders.
1.79. MR JUSTICE NICOL: Anything you want to say, Mr Jones?
1.80. MR JONES: My Lord, very quickly, your Lordship found against the claimant on two grounds. There is only one ground, I understand, that of disclosure of means, which was said to be in breach of Aarhus. It is not, and, in any event, the submission that your Lordship was bound by Corner House if European law indicated otherwise is an incorrect submission, because European law would oblige your Lordship to have taken a different approach, but since the claimant has singularly failed to make out that European law in any way demands a different approach to Corner House, that point fails as well.
1.81. MR BUXTON: Is it possible to make one observation in reply to Mr Jones? Mr Jones is wrong to say that it is public important that there is no entry, because the Aarhus Convention does not require a matter to be of public importance. It is one of the key differences between the requirements of Corner House and the Aarhus Convention. As to the question of what is prohibitively expensive, that is a matter that is yet to be decided by the European Court and whether the approach is right that there should effectively be a means assessment before one can grant a protective costs order.
1.82. MR JUSTICE NICOL: I am going to refuse permission to appeal. I have given my judgment as to why I refuse the application for a protective costs order. I did so on two independent bases. I do not accept the claimant has a realistic prospect of succeeding on an appeal on those bases, and he would have to succeed on both. I am not persuaded that there is some other reason why permission to appeal should be granted.
1.83. Now, directions: can I, merely by way preliminary views, tell you what I have in mind. I heard the anxiety of the defendant and interested parties, and indeed, I imagine, the claimant that this matter should be dealt with reasonably expeditiously. I said yesterday the court has to juggle these claims for a number of different reasons. The claim was launched in September last year, and, again, my provisional view is that the need for expedition would be met in a proportionate way if this hearing came on before the end of June. What I also have in mind is that, given my decision on the protective costs order, there needs to be a limited opportunity for the claimant's side to decide what they are going to do, whether indeed they are going to discontinue, whether they can obtain funding either from the claimant or from some other source, or whether they wish to make an application to substitute a different claimant. Again, I have not heard anything yet as to either the principle (inaudible recording) be appropriate. Provisionally I have in mind until the end of this month, until the end of March. Now, Mr Buxton, I do not know if these are matters that you want to think about. Is there anything you want to say, first of all about the timing?
1.84. MR BUXTON: I think I heard you right, my Lord, before the end of June?
1.85. MR JUSTICE NICOL: Before the end of June.
1.86. MR BUXTON: That sounds reasonable.
1.87. MR JUSTICE NICOL: That would mean you have had this matter disposed of at the High Court level within about nine months, which is pretty good going. You may take a different view.
1.88. MR BUXTON: We are very used to the Administrative Court working very quickly, my Lord.
1.89. MR JUSTICE NICOL: It will work quickly when needs must, but, as I said, one has to balance the claims of your client with the claims of others too.
1.90. MR BUXTON: My Lord, obviously I have to take instructions as to whether we discontinue completely, in any event.
1.91. MR JUSTICE NICOL: I am not asking you to take an instant view on it, but what I am suggesting is that you should have a time limited span in which to take that decision.
1.92. MR BUXTON: My Lord, the end of this month seems to be a reasonable time limit, but just with the proviso that we might wish to have liberty to apply in case we do apply for permission to appeal or this might be affected by the issue of appeal on the protective costs issue in either direction.
1.93. MR JUSTICE NICOL: If there is a change of circumstances, of course you can always apply for different directions, but what I am trying to do at the moment is establish the position as a default absent any change, what is going to happen.
1.94. MR BUXTON: If this matter continues in the High Court without a protective costs order, or with the possibility of substituting another claimant or whatever, the end of March seems to be very sensible.
1.95. MR JUSTICE NICOL: I am not sure quite what form that should take. Should I order a stay on proceedings before the end of March or would that preclude you from taking any further action in the Court of Appeal? I am also concerned for the defendants and the interested parties that if I give the claimant's side the opportunity that I am talking about, it would not seem to me to be right that they should be obliged to incur further expense until they know whether this matter is indeed going to proceed.
1.96. MR BUXTON: Yes, my Lord. If they knew what the scene looked like at the end of this month, they would have three months April, May, June and a great deal, we think, myself and my opponents, believe that most of the evidence is there. So we do not think there is a great deal to do or indeed costs to expend. I suppose staying the proceedings if the proceedings were actually stayed, it might even preclude me applying for a certificate.
1.97. MR JUSTICE NICOL: That is what I was getting at. I do not want to put an unwarranted inhibition on steps the claimant might want to undertake. If I say something along the lines of, by 31 March the claimant is to notify the court and other parties as to whether he wishes to continue or discontinue proceedings, and/or whether there is to be an application to add or substitute others as claimants, and that until such notification is provided to the defendants and interested parties, they are not required to take any further steps in the proceedings.
1.98. MR BUXTON: My Lord, if we reach the end of March and there is no discontinuance or the proceedings continue in one guise or another, it would be helpful, I think, for all parties to have some form of directions on exchange of evidence, for example
1.99. MR JUSTICE NICOL: I can see that. I will come to that in a moment, but just for the moment I want to try and deal with this question of the hiatus between now and whatever opportunity would be reasonable for your clients to take a view. You think 31 March is sufficient?
1.100. MR BUXTON: I think that is reasonable, but with a proviso of liberty to apply.
1.101. MR JUSTICE NICOL: Yes. Mr Ranatunga?
1.102. MR RANATUNGA: My Lord, the Council is content with that approach.
1.103. MR JUSTICE NICOL: Miss Cook?
1.104. MISS COOK: Yes, my Lord. As long as we know one way or other by 31 March. What we do not want is Mr Buxton saying he is still thinking about.
1.105. MR JUSTICE NICOL: Well, he can always apply, but I want to set a default position that will govern, subject to some further court order. Mr Jones?
1.106. MR JONES: My Lord, I have no further submissions. (Pause)
1.107. MR JUSTICE NICOL: So what I have in mind is to say this:
"1. By 31 March 2010 the claimant is to notify the court and the other parties whether he intends to continue or discontinue these proceedings, and any application to add or substitute one or more claimants is to be made by the same date.
2. Until such notice is given, or 31 March 2010, the defendant and interested parties are not obliged to take further steps in order to proceed."
1.108. In terms of other directions, I wonder, Mr Buxton, whether it is convenient because I do have other duties that I have to deal with today and I was not expecting to be in court today is it sufficient for you and the other parties to discuss what further directions you think should be made, and if agreement can be reached, then I can incorporate those into my order.
1.109. MR BUXTON: I think so, my Lord. I think the time frame is in fact sufficiently long, three months, that the normal rules can apply and will probably apply in a normal judicial review case in any event.
1.110. MR JUSTICE NICOL: The normal stages of judicial review, as you know, the application for permission is considered on the papers. If refused, permission is brought here, and if granted, then time runs for that from service of evidence. When you have a rolled up hearing, the court does need to make some special direction as to the time within which evidence is to be served.
1.111. MR BUXTON: It is helpful, and it is also helpful because sometimes one finds that all parties do not adhere to the normal rules for skeleton arguments.
1.112. MR JUSTICE NICOL: So we have evidence by the defendant/interested parties, evidence in reply by the claimant, skeleton argument by claimant, skeleton argument by defendant and interested parties, and claimant providing a trial bundle which should really come before the skeletons.
1.113. MR BUXTON: The trial bundle would be additional to what is there. We will sort that out if we proceed.
1.114. MR JUSTICE NICOL: I want to set a timetable as part of this order so that, absent any further direction of the court, the case is on track, being heard by the end of whatever date is given before the end of June.
1.115. MR BUXTON: In light of your indication that you wish to get on, can you leave it to me to contact my opposite numbers with some proposals and to agree something, and then send it to your clerk within a week?
1.116. MR JUSTICE NICOL: Mr Ranatunga, are you content with that?
1.117. MR RANATUNGA: My Lord, yes.
1.118. MR BUXTON: It should be relatively straightforward.
1.119. MR JUSTICE NICOL: Miss Cook, Mr Jones, you are all right with that?
1.120. MISS COOK: My Lord, yes. We made some enquiries. The only other thing is that are we leaving this to simply before the end of June, or are we in fact trying to fix some kind of a date? We can talk amongst ourselves about that. I am aware that there are effectively two opportunities in June that the court has available, the 10th and the 11th, or 24th and 25th, and I just wonder whether we could have a discussion between ourselves outside and see if we cannot invite your Lordship to fix a date.
1.121. MR JUSTICE NICOL: Yes, the enquiries I made before suggesting June was that the court could in principle accommodate a two day hearing before that date. If you can discuss with the court a more specific date, and the court is agreeable to that, then I can incorporate that into the order.
1.122. MISS COOK: Thank you very much.
1.123. MR JUSTICE NICOL: Is there anything else that I can deal with this morning?
1.124. MR BUXTON: No, my Lord.
1.125. MR JUSTICE NICOL: Can I ask one of you to take responsibility for drawing up an agreed order and then passing to me?
1.126. MISS COOK: Yes.
1.127. MR JUSTICE NICOL: Miss Cook, will you perhaps do that?
1.128. MISS COOK: Yes, my Lord.
1.129. MR JUSTICE NICOL: Thank you all very much indeed.