Case Name: Barron & Brown (R on the application of) v Surrey County Council
Judgment Status Given
Transcript Status Approved
Date 12/10/2001 Appellant
Division Crown Barrister
Solicitor MR M HUTCHINS and MR T WATKIN (Judgment only)
Richard Buxton, 40 Clarendon Stret, Cambridge CB1 1JX
Case No CO/2417/01 Respondent
Neutral Citation  EWHC Admin 811
Solicitor MR J FINDLAY and MR J EASTON (Judgment only)
Surrey County Council, County Hall, Kingston upon Thames, Surrey CT1 2DN
Judge(s) Stanley Burnton J
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Neutral Citation Number:  EWHC Admin 811
IN THE HIGH COURT OF JUSTICE HC0002636
QUEEN'S BENCH DIVISION CO/2417/2001
Royal Courts of Justice
Friday, 12th October 2001
B e f o r e:
MR JUSTICE STANLEY BURNTON
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THE QUEEN ON THE APPLICATION OF
ELIZABETH MARY BARRON
SURREY COUNTY COUNCIL
SURREY COUNTY COUNCIL
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(Computeraided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0207421 4040/0207404 1400
Fax No: 0207831 8838
Official Shorthand Writers to the Court)
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MR M HUTCHINS and MR T WATKIN (Judgment only) (instructed by Richard Buxton, 40 Clarendon Stret, Cambridge CB1 1JX) appeared on behalf of the Claimants.
MR J FINDLAY and MR J EASTON (Judgment only) (instructed by Surrey County Council, County Hall, Kingston upon Thames, Surrey CT1 2DN) appeared on behalf of the Defendant.
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J U D G M E N T
(As Approved by the Court)
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1. MR JUSTICE STANLEY BURNTON: I have before me a number of applications relating ultimately to decisions made by the defendant, Surrey County Council, in March and July 1999 to introduce schemes of charges for the grants of easements over common land at Chobham Common. The background to the existing proposed proceedings is that in 1998 the defendant sent what are referred to, between the parties at least, as "Sayce letters" to the owners of houses abutting Chobham Common in Surrey, confirming that those properties, the houses, had rights of way over the common, the rights of way including vehicular access. At that date Surrey County Council was the owner of the common.
2. It appears that that confirmation was or may have been given on the basis of what turned out to be an error of law, and in 1999 the Council made the decisions I referred to earlier, the basis of which was that owners were not entitled to such rights of way but that the Council would grant them rights of way in return for certain charges. Not surprisingly, the decision of the Council caused a degree of furore in Chobham, and in January 1999, by which date the proposed action of the Council clearly must have been publicly known, a group called Chobham Action Group (and referred to before me by the acronym CAG) was formed, a committee appointed to coordinate objections to proposals for those charges.
3. There are before me two sets of proceedings. The first, in which Mrs Elizabeth Mary Barron is the claimant, are proceedings pending in the Chancery Division, having been commenced at the end of October 1999. The second proceedings are an application for permission by Mr Brown under Part 54, the object of which is to seek and obtain judicial review of the 1999 decision. So far as the public law aspects of these cases are concerned, there is no significant difference between the two sets of proceedings. It was agreed between the parties that the matter before me that I should deal with first is the order of Deputy Master Cousins, made on 15th May of this year, dismissing Mrs Barron's application to transfer the public law claim back to the Administrative Court. Before dealing with that appeal, it is necessary to set out at least an outline of the history of those proceedings.
4. As I have already mentioned, an application for permission was made in October 1999. At the end of February 2000 permission was refused on paper. At that stage the original Form 86A and the original proceedings begun by Mrs Barron were limited to a public law challenge to the relevant decisions of the defendant. Subsequently, those proceedings were amended to assert a private law claim, namely a claim that the defendant was estopped and precluded in the events which had occurred from denying her right to a right of way on the Chobham Common.
5. On 15th May 2000 the case came before Sullivan J on the oral renewal of the application for permission. He granted permission in respect of the public law claim. Ultimately, he ordered that the proceedings be transferred to the Chancery Division and that they continue in the form of an ordinary civil claim. And so the claim continued being partly a public law claim seeking, on the basis of an allegation of legitimate expectation, an order quashing the 1999 decisions of the defendant, and partly a private law claim.
6. The proceedings were not formally representative proceedings. It was, however, always clear that other persons were interested in the success of the proceedings and would benefit from that success if the public law claim continued and succeeded. It was also clear that the decisions of the defendant to which the proceedings related were not made in relation to her specifically, so that her public law claim concerned a decision affecting a class of persons in which she was one.
7. The circumstances surrounding the commencement of the proceedings are set out in a letter of 8th October 2001 which was admitted in evidence without objection, notwithstanding the late date of its production and service. According to it, the council of the action group had taken counsel's opinion and had instructed solicitors, who wrote to the defendants in August of 1999. Mr Hardcastle, a gentleman who is active within the action group, approached Mrs Barron's solicitors in relation to the matter around the same time. A few weeks later there was a conference with counsel attended by Mr Hardcastle and at least one other member of the CAG committee. As it was becoming urgent to lodge proceedings within the threemonth time limit, it was agreed that Mr Hardcastle would ask Mrs Barron if she would be the applicant on behalf of residents represented by CAG. She agreed and proceedings were lodged accordingly. According to the letter, it was made clear, as summarised in the skeleton argument of materials bundle, tab 3, paragraph 25, that Mrs Barron was proceeding on behalf of the group although she did, of course, have a personal interest.
8. However, as I have already indicated, these were not representative proceedings in any formal sense, nor was there any agreement between Mrs Barron and any other house owner as to the costs of the proceedings, and by " agreement", of course I mean a binding agreement. As far as the defendant was concerned, the claimant was not ostensibly or formally acting on behalf of others. In this connection, I refer to Mrs Barron's solicitor's letter of 27th October 1999, which is Exhibit PA1 to the witness statement of Mr Philip Ambrose. The letter from the claimant's present solicitors begins:
"We have been instructed by Mrs E M Barron to act for her to challenge by way of judicial review the Council's decision to charge her more than a normal sum for a deed of easement..."
9. While the public law claim was of interest to others, clearly the private law claim of estoppel could not be brought on behalf of others. As I have already mentioned, Sullivan J granted permission for the claimant to go forward as if it were entirely a civil claim in the Chancery Division. I have a transcript from the hearing before him, and it appears that counsel Mr Findlay, acting for the defendant, asked for time to serve a defence. Mr Findlay said:
"I am asking for six weeks, which is not quite as much as 56 days but more than 14 days."
10. Mr Jay, counsel for Mrs Barron, said:
"We would certainly like this matter to be heard as expeditiously as possible given that there may be land owners wishing to sell their houses, and it is of concern in the interim."
11. I think that was an appropriate comment. Sullivan J, in the course of the proceedings, indicated that the Council should put into a separate bank account any monies it received pending the resolution of the proceedings from those who paid for the grant of easements; but equally, there would be house owners affected by the Council's decision who would be wanting to sell their homes, and certainly the price at which they could sell and possibly their ability to sell might well depend on their being able to show clear title to a right of way over the common to their houses.
12. By letter dated 7th July 2000, the defendant conceded Mrs Barron's private law claim. The letter asserted that it followed that the action was no longer necessary and need not proceed. There was then discussion in the letter about costs. The claimant's solicitors replied on 17th July. They addressed the question of the deed to be granted to implement the concession of the private law claim and referred to the public law claim as follows:
"As to the public law point and your suggestion that these proceedings should now be settled, we shall be in touch in due course. In order that we can take proper instructions, would we be correct in understanding that, if a public law point were to proceed, you would not be putting in any further evidence?
For the avoidance of doubt, you should not take this letter as in any way accepting that the public law point should be settled, though it is appreciated that you acknowledged the private law point in open correspondence."
13. The Council wrote back on 21st July, confirming the Council would be willing to enter into a formal deed of grant subject to payment of its reasonable charges. The County Solicitor continued:
"I am not clear how your client would propose to continue with a public law challenge after an order for transfer has been made pursuant to RSC 53.9(5). Be that as it may, perhaps you would confirm that the time for filing the Council's defence can be extended on suitable terms."
14. The defendant's solicitors responded on 2nd August 2000:
"You will appreciate that although it may be of academic interest only so far as Mrs Barron is concerned now (except if we cannot reach agreement as to her costs), the public law issue does need to be resolved. As is made clear in the Form 86A there are a large number of other people who are affected by the Council's policy on this issue. Sullivan J recognised the point was of sufficient public importance, for example, to enable him to extend time for judicial review should that be necessary.
We confirm that we have instructions on behalf of several other applicants to join Mrs Barron or to substitute for her with proceedings as representative applicants for judicial review purposes. It is perfectly in order for this to happen under the normal joinder rules..."
15. There was a holding reply from the Council on 10th August. On 17th August there was a substantive reply from the Council, not accepting that other persons could join in the proceedings in addition to or in substitution for Mrs Barron. On 24th August the defendant's solicitors responded to that letter. Mr Buxton, a partner who was dealing with the matter, had just returned from holiday. He said they were taking instructions and would get back as soon as possible. Nothing then happened until 3rd November 2000, when the defendant chased for a response. On 6th November Mr Buxton responded:
"We are taking instructions, which we anticipate to involve an application to join further applicants."
16. Ultimately, on 15th December 2000, Mr Buxton wrote to confirm that his firm had instructions to apply for a number of persons to be joined to Mrs Barron's application, one of whom is the Mr Brown whose proceedings I have separately to consider. An application was then made to transfer the proceedings out of the Chancery Division, on the basis that there was no no longer an ongoing private law claim, back into the Administrative Court with a view to, as I understand the matter, Mr Brown and possibly others, namely those referred to in the letter of 15th December, being joined in the proceedings by order of the Administrative Court. The proceedings would, on that basis, then continue as public law proceedings.
17. For these purposes nothing turns on the form of the proceedings or indeed the venue. The question before me is, having regard to the law and procedure of both divisions, was the order made by the Deputy Master an appropriate order in the circumstances? The Deputy Master refused to make the order on the basis that the proceedings were effectively dead. He did not expressly consider the public law implications of the case. It is against that decision that the application for permission to appeal has been made and, as was stated at the beginning of this morning, it is agreed that if permission is given, yesterday's hearing should be treated as the hearing of the substantive appeal and I should give judgment on the substantive appeal as well as on the application for permission.
18. In considering the appropriate order to be made in the circumstances of this case, I consider it helpful to examine the position as at July 2000 in order to decide what would have been the procedural position at that date and whether at that date it would have been possible or appropriate to make an order for the continuation of the proceedings or a stay of the proceedings for joinder or to refuse to make an order for joinder. I shall then consider whether a different conclusion should be arrived at by reason of the period which elapsed between July of 2000 and the intimation that there were instructions to proceed on behalf of others with Mrs Barron in December 2000.
19. It has been argued before me that there were effectively four bases on which an order could have been made enabling the proceedings to continue or, if an application had been made for a stay or dismissal of the proceedings in July 2000 after the concession of the private law claim, grounds on which the court could have refused to order a dismissal or stay.
20. The first is that these proceedings were, in substance, representative proceedings. As I have already indicated, these were not formally representative proceedings under Part 19.6 of the CPR. Not only were they not formally representative proceedings, but if they had been in substance representative proceedings, it is difficult to see that there would have been any question of their coming to an end when the private law claim was conceded. I have some difficulty in seeing that the letter at page 183 of 17th July 2000 would have been written as it was, or indeed that there would have been the period of time between July 2000 and December 2000 before it became clear that the claimant or those who had an interest in the proceedings would wish them to continue. Had these been representative proceedings, the concession of the private law remedy would have been irrelevant to their continuation.
21. The second ground on which it is said that the proceedings could, notwithstanding the concession of the private law right, have continued is that a public law claim does not depend on the individual interest of an individual claimant. In a case such as the present, as indeed I have already indicated, the public law remedy, if granted, would benefit a class of people. In my judgment, where there is a public law claim, but an individual claimant who is the only claimant has achieved his or her individual benefit sought by the proceedings, as was the case for Mrs Barron, the court has a discretion whether or not to permit the proceedings to continue. The continuing standing of the claimant at that stage is no doubt a relevant consideration, but it is not a decisive consideration. If the continuation of proceedings is academic and the issue is not one of general public concern, normally the court will not permit the proceedings to continue. To do so would involve a waste of court time and the costs of the parties. The question whether the proceedings had been pursued diligently on behalf of the claimant will also be a relevant factor to consider when deciding whether to permit what for the claimant is an academic claim to be pursued.
22. The third basis on which it was said that the claimant was entitled to continue the proceedings notwithstanding the concession of the private law claim concerned the issue of costs. The issue of costs is still outstanding as between the parties. If the proceedings were stayed, the court could of course make an appropriate order in relation to the conceded claim and might make an order for costs in relation to the outstanding claim. In this connection I was referred to the judgment of ButlerSloss LJ (as she then was) in R v Holderness Borough Council, ex parte James Robert Developments Limited Vol 66 P&CR 46. However, in my judgment the legal position is as set out in the judgment of Dillon LJ in that case. That is to say that the court has jurisdiction to allow a dispute to go forward in order to determine the question of costs, but there is a discretion as to whether to permit the proceedings to continue for that purpose; and equally, there is a discretion to stay the proceedings and to make an appropriate order as to costs, which will often mean, in circumstances where it is not clear what the merits of the case are and not clear who would have succeeded ultimately, that there would be no order for costs. That will often be the appropriate order in addition where substantial costs and court time will be incurred to resolve the substantive issue between the parties. In my judgment the modern position is as set out in the judgment of Scott Baker J in Boxall at paragraph 22 of his judgment.
23. If there were no other persons interested in the present proceedings, and if application had been made to me in August 2000 for a stay of the proceedings, having regard to the concessions that had been made, on the basis that the only outstanding issue between the parties was costs, having regard to the nature of the issues, and notwithstanding the significant costs which have already been incurred, I should have ordered a stay of the action and I would have made no order as for the costs of the public law issue, assuming, as I do, for present purposes, that it was arguable, but not clear, who would have succeeded had that matter been taken to trial and judicial determination. It follows that the fact that there was no agreement between the parties as to the costs of the proceedings and the fact that the public law claim was unresolved of themselves do not justify the continuation of the present proceedings.
24. I turn to the question of joinder. In my judgment, whether an order for joinder would be made in the present proceedings is the real issue. That it is so has been recognised in the correspondence. In that connection I refer to the letter of 15th December 2000 which I referred to earlier. As I have already indicated, the correspondence concerning the continuation of the proceedings would have been very different if joinder were not the substantial issue between the parties. That it was the substantial issue raised in December 2000 reflects the reality that Mrs Barron had achieved what she sought in the proceedings. Because of the nature of public law proceedings, different considerations arise when application is made for joinder by a new claimant in such proceedings and in private law proceedings where necessarily the persons interested in the relief are likely to be a very narrow class, if indeed a class at all. That as a result joinder may be easier to achieve in public law cases is reflected in the comment of Simon Brown LJ in the case of R v Northwest Leicestershire District Council (unreported decision of 12th April 2000).
25. However, whether joinder would be permitted is a question for the discretion of the court, and promptness is a relevant consideration in deciding whether to make an order for joinder. If joinder had been sought in July 2000, I should have made an order for joinder, notwithstanding the circumstances in which the proceedings were commenced and notwithstanding the fact that these were not formal representative proceedings. Indeed, had they been formally representative proceedings no application for joinder would have been necessary. However, no such application was made in July or August 2000. There was a delay between July and December of some five months before effectively the claimant's solicitors sought to take the proceedings forward asserting that there should be an order for joinder.
26. The explanation put forward for that period of inactivity is that the Countryside and Rights of Way Bill was before Parliament. That Bill, if enacted, would or might have rendered the public law claim irrelevant since, as I understand it, it would have entitled or might have entitled the owners who had not been granted formal rights of way of the Chobham Common to such rights of way as a matter of statute law. That consideration was not communicated to the defendant's solicitors. There was no agreement between the parties for a stay of proceedings between July and December. In my judgment, that explanation of the inaction in the proceedings during the second part of 2000 does not justify that delay. It is, moreover, no answer that a particular councillor was kept informed of the continuing interest of the action group, as stated in the letter of 9th October 2001 to which I have referred.
27. That period of five months' delay has to be seen in the light of the requirement that public law proceedings must be brought promptly in the threemonth maximum period laid down by Part 54. It must also be considered in the light of the fact that the decisions in question to which the proceedings relate took place in July 1999 and the recognition before Sullivan J of the need for a speedy hearing. As a matter of principle, public law proceedings must be commenced promptly and pursued diligently.
28. I take into account that during the period in question it was open to the defendant to seek an order to dismiss the proceedings or an order for a stay of proceedings, but the reality of the matter was that it was unclear whether the proceedings would continue at all during that period from July to December 2000. I also take into account the fact that during that period the defendant was in default in service of its defence. I have also considered the nature of the prejudice alleged by the defendant, namely the lack of certainty as to the validity not only of its 1999 decisions but of its transactions pursuant to those decisions under which rights of way had been granted in return for payment. Lastly, as I have already indicated, there is the prejudice to persons interested in selling their homes, a matter which, it seems to me, was referred to before Sullivan J.
29. All those considerations lead me to conclude that the principle of expedition required by Part 54 requires me to conclude that the claimant should not be permitted to pursue her public law claim in the present circumstances and that no order for joinder should be made. It follows that the Deputy Master came to the right conclusion. However, he did not, in his decision, refer to or consider, at least expressly, the various considerations to which I have referred in the course of this judgment. In those circumstances, I grant leave to appeal against his order. I order that the application for permission should be treated as the hearing of the substantive appeal, but I dismiss the appeal.
MR WATKIN: My Lord, in those circumstances, I am instructed to ask your Lordship for permission to appeal against your dismissal of the order of Deputy Master Cousins. Two matters present themselves, your Lordship. The first is the nature of standing in relation to public interest cases such as this, representative proceedings, as your Lordship has said that they are and they are not in your Lordship's judgment, and particularly in circumstances where there is an overlap between the public interest part of the case and the private law interests of the parties concerned.
MR JUSTICE STANLEY BURNTON: The second?
MR WATKIN: Your Lordship, the second part is in relation to the delay to which your Lordship has referred and upon the basis of which your Lordship has ultimately concluded that this appeal fails. Your Lordship, I submit that since the Human Rights Act, the general principle to be applied in civil proceedings before the courts is that where delay does not prejudice the fair trial of the matter once the proceedings have been issued, the court should not strike out the claim merely for delay. Your Lordship, in those circumstances your Lordship is perhaps suggesting a different attitude towards proceedings brought by form 86A.
Your Lordship, there is a broader question in relation to the practice in cases brought by judicial review where there has been delay and, where looking at the causes of delay, your Lordship has alluded to the fact there are different considerations in play in those circumstances. Your Lordship, for those reasons we say that your Lordship has not applied the correct principles to the application for delay, and for those reasons we seek leave to appeal on those two grounds.
MR JUSTICE STANLEY BURNTON: I shall refuse permission. As far as standing is concerned, I did not, in my judgment, indicate that the claimant had no standing to continue the proceedings. My judgment proceeded on the basis of an exercise of discretion.
So far as the question of delay is concerned, so far as the Human Rights Act and similar points are concerned, it seems to me that the time limits in Part 54 indicate that expedition is essential in public law claims, and that notwithstanding the provisions of the Convention, a want of expedition may deprive a claimant of a remedy. A requirement of expedition does not deprive a claimant of any right of access to the courts.
I refuse the application on the basis this was a decision made in the exercise of discretion.
MR WATKIN: Very well, your Lordship. There remains the issue of the application by Mr Brown, which your Lordship has not yet considered in the judgment.
MR JUSTICE STANLEY BURNTON: I think the position is fairly obvious, is it not, that having regard to the delay and having regard to my decision in the proceedings brought by Mrs Barron, it would be inappropriate to grant an extension of time.
MR WATKIN: My Lord, just formally to clarify the fact that your Lordship is formally refusing Mr Brown his extension of time. I am grateful, your Lordship. Your Lordship, that brings
MR JUSTICE STANLEY BURNTON: And I refuse permission. I refuse an extension of time; I refuse permission. Those are the matters you were seeking.
MR WATKIN: Your Lordship, yes. That brings us to the question of costs. Your Lordship, I do not know whether my learned friend wishes to address you first in relation to costs. Your Lordship's judgment dealt with the question of how the costs of the whole action were to be dealt with. In my submission, the correct order today would be to grant the claimant the costs of this action on the basis that the claimant received the substantial relief benefit that your Lordship has pointed out in the judgment she was seeking by these proceedings and as a result of these proceedings.
Your Lordship may wish to remove some of those costs in relation to the appeal against the order transferring or application to transfer this matter back to the Administrative Court.
MR JUSTICE STANLEY BURNTON: It seems to me that I ought to, having regard to my order, bring to an end the Chancery proceedings. It seems to me I should make an order staying those proceedings. Otherwise, they simply hang in the air.
MR EASTON: Yes, that would be the first order I would invite your Lordship to make, staying the Chancery Division proceedings. My second application would be that the claimant pay the defendant's costs of this appeal, to which end I hope you have a copy of the costs schedule.
MR JUSTICE STANLEY BURNTON: I do not have a copy of the costs schedule. I am not sure let us deal with the costs of this appeal first of all. Mr Watkin, what do you say about the costs of the appeal?
MR WATKIN: My Lord, in relation to the judgment you gave and the appropriateness in the circumstances of staying when matters of relief have been dealt with by other means, this has been a difficult matter for the claimant, and I would say that the appropriate order in relation to the appeal would be no order. The claimant has attempted to keep the defendant in the know in relation to the appeal, and your Lordship pointed that out when going through the correspondence which occurred between July and December 2000 and subsequently.
That your Lordship has made the decision your Lordship has on discretion is a very narrow point against the claimant, and so on the appeal I invite your Lordship to make no order for costs. If your Lordship is against me in relation to that, I might say something about the schedule of costs, but
MR JUSTICE STANLEY BURNTON: It seems to me that the defendant is entitled to its costs of the appeal. I still have not seen the schedule.
MR EASTON: I am afraid this is the only copy I have, but I will allow your Lordship to see it.
MR JUSTICE STANLEY BURNTON: Mr Watkin, what do you say about the costs of the
MR WATKIN: Your Lordship, broadly, there are very few points that I would make. The only one specific point is in relation to the work done on the documents, tenandahalf hours. Your Lordship will have seen that is a trifle excessive.
MR JUSTICE STANLEY BURNTON: Well, it produced this presumably, the
MR WATKIN: Well, in particular the witness statement of Mr Ambrose, your Lordship, which
MR JUSTICE STANLEY BURNTON: What do you say that should be?
MR WATKIN: I say half that.
MR JUSTICE STANLEY BURNTON: There are a fair number of documents brought into existence in the case, are there not?
MR WATKIN: Your Lordship, there are a considerable number of documents, but if one considers the statement of Mr Ambrose, one sees that in fact the witness statement itself is only 6 pages long, and it then follows 80 pages of correspondence, which is essentially exhibiting the correspondence file.
MR JUSTICE STANLEY BURNTON: What do you say that figure should be?
MR WATKIN: I invite your Lordship to assess that at half that figure.
MR JUSTICE STANLEY BURNTON: 5.25?
MR WATKIN: My Lord, yes.
MR JUSTICE STANLEY BURNTON: What does Mr Easton say?
MR EASTON: My Lord, there is quite an involved and complicated history to this matter, and clearly those matters have to be addressed again before putting the bundle of documents together. In my submission, they do not engage any horse trading, but of course 10.5 hours was put in and in my submission that is an accurate and reasonable amount of time.
MR JUSTICE STANLEY BURNTON: 10.5 hours is effectively two days' work, is it not?
MR EASTON: Yes.
MR JUSTICE STANLEY BURNTON: Anything else you want to say, Mr Watkin?
MR WATKIN: My Lord, generally speaking, the nature
MR JUSTICE STANLEY BURNTON: On the schedule.
MR WATKIN: Yes, my Lord. In relation to the schedule, I would invite your Lordship, rather than going through item by item, to suggest that this is approaching a reasonable figure but slightly high, and I would invite your Lordship to simply assess the matter.
MR JUSTICE STANLEY BURNTON: The grand total of £3,000 is quite modest.
MR WATKIN: Quite modest, my Lord. I invite you to asses it at a modest figure instead of a quite modest figure, and I invite your Lordship to reduce it to £2,500.
MR JUSTICE STANLEY BURNTON: I am going to reduce the tenanda half hours to seven, and I am going to leave you to do the arithmetic which follows from that, and I make an order for costs in the resulting sum.
MR EASTON: My Lord, yes. Perhaps I should explain there are some manuscript amendments on the second page in relation to counsel's fees. I am instructed that the typed figures were estimates and the manuscript entries are the actual brief fee, the actual fees that counsel incurred in respect of this appeal.
MR JUSTICE STANLEY BURNTON: Does Mr Watkin know that?
MR WATKIN: I do not have the manuscript amendments, my Lord.
MR EASTON: There is also the fee, counsel's fees, for today, my fees essentially.
MR JUSTICE STANLEY BURNTON: Let me tell Mr Watkin. The counsel's fees in manuscript are, instead of 350, 300; instead of 600, 1,000. Is that right?
MR EASTON: No. The manuscript should be 600 and 1,000, is the correct figure.
MR JUSTICE STANLEY BURNTON: Sorry?
MR EASTON: As I understand, 600 and 1,000 are the correct figures or 300 and 1,000. Beg your pardon.
MR JUSTICE STANLEY BURNTON: Then it says underneath, plus 12 over 10. What does that mean?
MR EASTON: That is today's date, so the
MR JUSTICE STANLEY BURNTON: Oh, I see.
MR EASTON: The fee for today.
MR JUSTICE STANLEY BURNTON: Which is?
MR EASTON: Let me take brief instructions, my Lord. Given my late substitution, I do not think we have had an opportunity to agree a fee for today. It is certainly not as high as Mr Findlay's, as much as I would like it to be.
MR JUSTICE STANLEY BURNTON: Mr Watkin?
MR WATKIN: My Lord, I have no comment on my learned friend's current situation. In relation to Mr Findlay's fee, I fail to understand how a schedule which was dated 10th October, which is the date upon which Mr Findlay's skeleton argument is dated, cannot include the correct brief fee for Mr Findlay. If there has been an alteration of that brief fee as a result of yesterday's performance, for example, I ask that that not fall at the feet of the claimant. One can reasonably expect the brief fee which is marked upon this must be expected to be the correct brief fee.
I understand that yesterday's hearing took an afternoon, or twoand ahalf hours. My Lord, pound for pound, it might be considered to be quite a lot of money for twoandahalf hours, even for Mr Findlay's time.
MR JUSTICE STANLEY BURNTON: It seems to me justice will be done if I adhere to the figure of the total of counsel's fees of £ 950 and make it up to £ ;1,000 to include today. Are you both able to do the arithmetic and agree a figure?
MR WATKIN: I am sure, my Lord, we are.
MR JUSTICE STANLEY BURNTON: If you can give that resulting figure to the associate, I am sure he would be very grateful.
Now, costs otherwise?
MR WATKIN: My Lord, as I said earlier, the claimant has substantially succeeded in the aims of these proceedings, which have been her personal end in these proceedings, which have been to establish an easement over the common ground. In those circumstances, I invite your Lordship to say that the other order for the costs in the action be an order in the claimant's favour. My Lord, we do not have schedules in relation to that, and it may be
MR JUSTICE STANLEY BURNTON: It will have to be a detailed assessment, because I
MR WATKIN: Yes, your Lordship.
MR JUSTICE STANLEY BURNTON: I cannot make
MR WATKIN: But in terms of the principle of the order, my Lord, I invite you to make an order that the rest of the costs of the action be the claimant's.
MR JUSTICE STANLEY BURNTON: What do you say is the correct order?
MR EASTON: My Lord, we obtained our costs in respect of the hearing before Deputy Master Cousins in May of this year, so that order should stay as it is. My instructions are to ask for the claimant to pay the defendant's costs of the Chancery proceedings.
MR JUSTICE STANLEY BURNTON: Of the?
MR EASTON: Chancery proceedings.
MR JUSTICE STANLEY BURNTON: The claimant should pay the defendant's costs of the Chancery proceedings?
MR EASTON: The appropriate order would be
MR JUSTICE STANLEY BURNTON: The defendant should pay the claimant's costs of the Chancery proceedings, of the private law claim.
MR EASTON: My Lord
MR JUSTICE STANLEY BURNTON: That claim was conceded.
MR EASTON: Yes, sorry. I have it the wrong way around. Of course there has to be an end to these proceedings.
MR JUSTICE STANLEY BURNTON: I have said that.
MR EASTON: Yes. I think the appropriate order would be no order as to costs in respect of that.
MR JUSTICE STANLEY BURNTON: Anything else you want to say, Mr Watkin?
MR WATKIN: My Lord, my learned friend suggests no basis upon which the correct order in relation to the proceedings as a whole is no order. My Lord, this has been a successful claim. It may have proceeded yet further. The costs of the order of Deputy Master Cousins and the hearing before him and the costs of this appeal I do not resist any further because we have been unsuccessful in that aspect. But in the remainder of the aspects of this case, my Lord, we have been successful, and it was necessary to bring these proceedings.
On that basis, there can be no other proper order than that the costs follow the event, and therefore that the claimant be entitled to her costs against the defendant.
MR JUSTICE STANLEY BURNTON: Thank you. It seems to me that the submission that the entirety of the costs of these proceedings should follow the event is inconsistent with submissions made to me as to the continuation of these proceedings. In my judgment, it is appropriate to consider in the present case the two aspects of the claim as ultimately formulated, given that, although they may have had the same object, they raised different issues, indeed they were raised at different times, and would have been subject to different procedure.
So far as the private law claim is concerned, the claimant's case was conceded, and she must have the costs of and incidental to that claim. So far as the public law claim is concerned, no adjudication has been made as to whether that claim was a wellfounded claim or not. I deal with the question of costs on the basis that it was an arguable claim. For reasons I gave in the course of my judgment, it would not be right for the parties to incur significant costs as they would, or for the court to spend significant time as it would, if that claim were to be adjudicated upon.
In those circumstances, given no clear assessment that one party was highly likely to succeed or fail, in my judgment it is appropriate to make no order for costs in relation to the public law proceedings and, as I have already indicated, to treat those and the issues raised by them separately from the private law issues.
MR WATKIN: My Lord, can I take instructions for one moment on the order that your Lordship has made. My Lord, the final point in relation to costs is that they be taxed if not agreed. Therefore, since your Lordship has
MR JUSTICE STANLEY BURNTON: Clearly they must go for detailed assessment.
MR WATKIN: Detailed assessment.
MR JUSTICE STANLEY BURNTON: Good.
MR WATKIN: There is another point other than the costs. I wonder if your Lordship would mind either ordering an expedited transcript in relation to your Lordship's judgment or giving the claimant 28 days to lodge any appeal on paper against your Lordship's order. There can be difficulties in relation to these matters if your Lordship's judgment
MR JUSTICE STANLEY BURNTON: The easiest thing is to have an expedited transcript, if that is what you are seeking. You will have the judgment by the end of next week.
MR WATKIN: I am grateful.
MR JUSTICE STANLEY BURNTON: It seems to me unnecessary in those circumstances to deal with the question of time to appeal. Thank you very much. I will not extend time, but I give you liberty to apply to me for an extension if it turns out that Mr Hutchins is in difficulties.