Berkeley v. S/S Environment and Fulham Football Club

Transcript date:

Wednesday, March 26, 1997



High Court

Judgement type:



Tucker J




Royal Courts of Justice


London WC2

Wednesday, 26th March 1997

B e f o r e:


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(Computer-aided Transcript of the Stenograph Notes of

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MR JONES for MR McCRACKEN (instructed by Richard Buxton, Cambridge CB1 1JX) appeared on behalf of the Applicant.

MR S RICHARDS and MR ELVIN (instructed by The Treasury Solicitors) appeared on behalf of the Secretary of State.

MR HICKS QC (instructed by Herbert Smith, London EC2A 2HS) appeared on behalf of Fulham Football Club.


(As Approved)

Wednesday, 26th March 1997

MR JUSTICE TUCKER: I have handed down my judgment, I decline to quash the decision reached by the Secretary of State and the application is accordingly dismissed.

MR ELVIN: My Lord, I am much obliged. Would your Lordship dismiss the application with the Applicant to pay the Secretary of State's costs.

MR JUSTICE TUCKER: Mr Hicks, do you have any application?

MR HICKS: I do, my Lord. I ask that you make an order that the Applicant should pay our costs. That would exclude -- my Lord, you may be aware that there was a separate ex parte for joinder and expedition on which no order for costs was made, so that comes out. In any event, there is no dispute about that, but I would ask that the Applicant should pay our costs. I understand that is disputed?


MR HICKS: Can I outline my reasons now?

MR JUSTICE TUCKER: Shall I hear the objection first,

Mr Hicks. Yes, Mr Jones, you appear for Mr McCracken.

MR JONES: The Applicant resists, I should make it clear, both sets of costs and I will outline the grounds on which that is taken. Both the Secretary of State's costs and also, in particular, the application by my learned friend for costs in respect of Fulham Football Club, the Second Respondent. It is probably appropriate, my Lord, if I deal first with the Applicant's case to resist any order of costs. My Lord, the usher should have a number of authorities, in particular, the case of Miller and Others v Weymouth and Melcombe Regis Corporation which I will be making reference to, and also a decision of the Privy Council relating to New Zealand Maori Council and Others v Attorney-General of New Zealand a copy of that report should be with the usher.

MR JUSTICE TUCKER: What is the principal you rely on for those authorities?

MR JONES: There are two separate principles, one contained in Miller and a distinct one contained, I submit, in the

New Zealand Maori Council case.

The first case Miller involves, your Lordship will see a Town and Country Planning matter, but involving an exercise of discretion not to quash a decision by

Mr Justice Kerr.

MR JUSTICE TUCKER: Where is the principle, Mr Jones?

MR JONES: The principle, my Lord, if one turns first of all to the headnote in per curiam. I begin, I suppose, apart from having to bring the present proceedings, which is not suggested as being itself capable of giving rise to any prejudice within section 265, the prejudice issue which could, in any event, be compensated by an appropriate order as to costs, the discretion would have been exercised by refusing to quash the order.

The principle, indeed, in that case, no order as to costs, if one looks at the end of the decision at page 481 is no order as to costs was made. The principle which I seek to rely upon, my Lord, is in a case such as this where there was an error of law by the Secretary of State in failing to consider the need an Environmental Impact Assessment should have been carried out. Your Lordship found in your judgment that effectively by an exercise of discretion, that although there was an error of law, it would not have made any difference in any event, effectively. I submit that that is an exercise of discretion similar to that in the Miller case. The principal I would rely upon there is the flip side, if one likes, of the ability of the Secretary of State or a decision-maker to rely on the discretion that there may be an appropriate order as to costs resulting out of that.

In those circumstances, where there has been an error of law, the appropriate course in my submission and in this particular case, is that no order as to costs should be made. The Secretary of State in respect of the need to consider Environmental Impact Assessment in respect of Fulham Football Club, they were on the wrong foot right from the beginning in failing to consider the Environmental Impact Assessment was required.

At the end of the day, your Lordship has found that as a matter of discretion, it would not have made any difference any way, but in those circumstances----

MR JUSTICE TUCKER: You say it is a matter of discretion, why is it a matter of discretion? Either it made a difference or it did not make a difference?

MR JONES: I would compare it, my Lord, with the situation in Miller where there is a question of prejudice, what prejudice would be suffered, which if one likes is not a matter of discretion, either prejudice was suffered or it was not. In the case of Miller, it was found there was not any substantial prejudice, and by analogy, I would rely on that principle in Miller where the Court declined to quash the decision on the basis of lack of substantial prejudice to your Lordship's judgment in this case.

MR JUSTICE TUCKER: Yes. What about the Privy Council case?

MR JONES: The Privy Council deals with another point, my Lord. One really needs to look at page 485. This was a case brought by the New Zealand Maori Council. Again, it is a case where the applicant was unsuccessful.

At the bottom of page 485, the question of costs was at issue. The Privy Council said:

"Although the appeal is to be dismissed, the applicants were not bringing the proceedings out of any motive of personal gain. They were pursuing the proceedings in the interest of taonga which is an important part of the heritage of New Zealand. Because of the different views expressed by the members of the Court of Appeal on the issues raised by this appeal, an undesirable lack of clarity inevitably existed in an important area of the law which it was important that their Lordships examine in the circumstances their Lordships regard it as just that there should be no order as to the costs on this appeal."

In this case, my Lord, I rely on a number of points arising from the Privy Council decision. This is a case where the Applicant has brought the case not because of personal gain. This is not one of those planning cases where one has a rival developer, which is often the case, trying to put a spanner in the works of a rival superstore. This is a case which the Applicant made quite clear from the beginning concerned -- if you like, had altruistic motives relating to the River Thames.

MR JUSTICE TUCKER: I accept that, of course, I have not suggested otherwise. She has no financial or material interest, of course not, but I also have to bear in mind, Mr Jones, that none of this was raised at the inquiry, it only came up afterwards. Am I not entitled to bear that in mind?

MR JONES: With respect, my Lord, in my submission, that is not material. The Applicant in this case, as I think was made clear in the case, was not represented at the Inquiry. One of the errors of law that has been identified was the failure by the Secretary of State to give consideration for the need for an Environmental Assessment.

I am instructed that the Applicant did raise this issue, but----

MR JUSTICE TUCKER: That is the first I heard of it.

MR JONES: I have just received a note.

MR JUSTICE TUCKER: I was dealing with this case for two days, a fortnight ago, and no one ever suggested that.

MR JONES: My Lord, I do not need to rely on that point, in any event. In my submission, it is not relevant whether the Applicant as a lay person raised this issue, because the Applicant as a lay person would not have known necessarily about the requirement for a consideration of an Environmental Impact Assessment. The Secretary of State got it wrong after all, and it would have been a bit rich for the Secretary of State to say, well, the Secretary of State supposedly experienced in these matters got it wrong, but we expect an ordinary member of the public to raise it at the Inquiry. In my submission, nothing turns on that matter whatsoever for the purpose of the public interest.

We are dealing with development which does affect the River Thames, and was a matter of judicial notice as to the effect, the importance one attaches to the River Thames which is part of the Environmental Heritage of this country. As I understand it, the concern was put before the Court, the concern expressed by other public bodies in relation to this matter according to the National Rivers Authority. The Applicant has had a certain amount of moral support in this case, but the action has been funded almost entirely by herself, as I have said, for public good reason.

MR JUSTICE TUCKER: I did say to Mr McCracken early on in his opening submissions to me, that it was a very great pity that Lady Berkeley had not sought legal representation and had the advantage of legal advice at the Inquiry, but there may be reasons for not doing so that I am not

aware of, but she is now in receipt of very careful, if I may say so, helpful advice and it is a great pity it was not obtained earlier, but there we are.

MR JONES: My Lord, that may be right. Although probably all the members here are very grateful for the fact that since the statute introduced the Public Planning Inquiry, and solicitors and counsel are having to become more and more involved, but the original intention -- and we are indebted to that -- of a public inquiry is for members of the public to come along. The whole purpose of a public inquiry is different to a court proceeding, for example, where one is in the formal forum of a court, whereas at the public inquiry publicity is given and members of the public are invited to come along and put their case. So although it may be a pity, of course, one always has to consider the position that the incurring of legal costs may be expensive, and where one is dealing with a Public Inquiry, there are no prescribed rules of audience and where the public are encouraged to come along and make their own representations. In fact, the Secretary of State is keen to encourage informal hearings which exclude counsel effectively from appearing.

My Lord, I do rely on the Maori decision and also another decision, of which I do not have a transcript, and which I understand is not reported, but insofar as any attention can be given to it, a decision involving Green Peace, a decision of Mr Justice Potts where, in those circumstances, although Green Peace were unsuccessful, no order was made as to costs against them because of the public interest matter.

MR JUSTICE TUCKER: I do not know the facts of that,

Mr Jones, I do not know what was in the background, I do not know whether an objection had been raised at an earlier stage or anything about it? It is no good telling me that costs were or were not awarded in a particular case unless you show me a report of it.

MR JONES: I bring that to your Lordship's attention----

MR JUSTICE TUCKER: You have not brought it to my attention.

MR JONES: I do not have a transcript of the decision but, my Lord, in any event, I need only rely, in my submission, on the principles set out in the Maori and New Zealand case which are the same principles that were applied in the Green Peace case so, in any event, the Green Peace case could only be an application on those principles.

Insofar as this is a subsidiary point, which, in my submission, is appropriately dealt with here rather than on taxing, my instructions are that my solicitors were instructed by the Treasury Solicitors that the need for Mr Richards in addition to Mr Elvin appearing was because of the sensitivity which the government attached to European Environmental matters, in particular, the question of Environmental Assessment.

In my submission, if the Secretary of State's costs are awarded they should be for one counsel and not for two such senior junior counsel. It should not be for the Applicant, in my submission, to pay for the perceived sensitivity of a Government Department as to the issue at stake, as this was a matter which could have quite capably been dealt with by either Mr Elvin or Mr Richards.

Turning to the Second Respondent's costs, I hope I have made it clear the basis on which I resist the orders for costs as a whole.


MR JONES: Turning to the Second Respondent's costs, the primary starting point is, of course, the Bolton decision, a copy of which should have been supplied to your Lordship.

MR JUSTICE TUCKER: I do not have that. I have been handed Registrar of Companies, ex parte Central Bank of India. Now I have Bolton, yes.

MR JONES: It can be found in the Weekly Law Reports of 1995 page 176. My Lord, practice has grown up by way of background, this is the context of this special costs decision by the House of Lords. In planning cases where the Second Respondent a developer turns up, the practice has developed where the courts recognise that ownership of the land or the obtaining of planning permission was of itself, per se, an interest which warranted protection by a second set of costs.

The House of Lords in the Bolton case reject that practice and put the situation, in statutory planning appeals, back on the footing with the position that your Lordship will be familiar with in Order 53 of judicial review which I will come to later. It is clearly set out in the Central Bank of India case, that a second set of costs should only be awarded in exceptional circumstances.

If we turn in particular to the Bolton decision, my Lord, the decision given by Lord Lloyd of Berwick. The appropriate criteria are set out at 1178 at G.

The first point deals with the Secretary of State's costs. My Lord, I have addressed your Lordship on the Secretary of State's costs. That first point actually deals with the problem that has arisen where the Secretary of State in past cases had not been awarded his costs, but the second respondent had, the court makes it quite clear that that is not the appropriate course to follow.

Turning to point two. This deals with the developer, and the second respondent in this case is the developer.

"(2) The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard."

Now, my submission is in this case that there is no separate issue.

MR JUSTICE TUCKER: I think he will say there was, because when Mr Richards opened his case to me, and I will turn to my note, give me a moment. Mr Richards said this, on behalf of the Secretary of State, after accepting that the Secretary of State should have considered both to call for an Environmental Statement and accepting that he did not consider whether to do so, he then said:

"I leave open the question whether if he had considered it the proposal was one for which he should have called for an Environmental Statement. Not a Schedule 1 case. Whether it is a Schedule 2 case depends on whether it could be sensibly called urban development, and a further question whether it is likely to have a significant effect on the environment."

He made it plain that he was leaving that point open, but that it would be developed by Mr Hicks on behalf of the football club, and so it was. It was Mr Hicks who took the point whether this development fell within any of the paragraphs of Schedule two, and there was only in which it could have fallen.

MR JONES: Your Lordship is quite right. The point I make on that, my Lord, is of course, when the Second Respondent comes in, albeit late in this case -- I will be addressing that -- to support the Secretary of State's decision. It may well be sensible for the Secretary of State and the Second Respondent to divide up issues as it is quite sensible to avoid duplication. My understand is and, I submit, your Lordship confirms it, that that was an arrangement made by the Secretary of State and the Second Respondent for dealing with the points. It was not a case that that was a point which the Secretary of State was unwilling or incapable of taking. Mr Richards left the point to be developed by the Second Respondents, and the Second Respondents indicated that they were prepared to do that.

My Lord, otherwise what would happen is that the Secretary of State and the Second Respondent could come together and divide up a list of points that could be taken and would ordinarily be taken by the Secretary of State, but may be divided up so half of them are dealt with by the Second Respondent. That, in my submission, does not bring the Second Respondent within the second paragraph, otherwise that would be a device for circumventing the thrust and rationale of the House of Lord's decision. One simply sees then, as is quite proper, counsel representing the two parties, on instructions, will usefully divide up the work since they are there.

My understanding is and also the note your Lordship has read to me is not that the Secretary of State was saying, this is a point the Secretary of State does not take or does not adopt, it is a point they have left open for the Second Respondent to develop. My understand is that there is tacit approval of the Second Respondent's argument in that respect.

MR JUSTICE TUCKER: You see, the House of Lords in the Bolton case were after all dealing with an appeal to their Lordships' house, were they not, which had come via the Court of Appeal? There may be a difference of approach between appeals to the House of Lords on the one hand and statutory appeals to the Divisional Court which this is one, on the other.

If, although I am far from encouraging such a move, there were to be any appeal from my decision or an attempt to do so, that might be another matter as to why two respondents might not be granted their costs, although I am not making any pronouncement upon it.

Here is a hearing which might almost be categorised as a first instance hearing where separate issues have been raised and it seems to me, and where the developer has a very clear interest in the outcome. Anyway, are there any further propositions to be derived from Lord Lloyd's speech in Bolton?

MR JONES: My Lord, yes, the first point----

MR JUSTICE TUCKER: I see the point I make is covered in paragraph (3).

MR JONES: With respect, my Lord, yes and no. Paragraph (3) makes clear -- in my submission, this direction as a whole is meant to address not just appeals to the House of Lords, because it then goes on to specifically deal with the issue at first instance, so the principle that the Second Respondent will not normally get his costs applies throughout the various levels of the courts. Paragraph (3) does go on to say:

"A second set of costs is more likely to be awarded"

It is a caveat, if one likes, to the first proposition, it does not surplant it.

MR JUSTICE TUCKER: I agree. Just pausing there, do you accept, Mr Jones, that for these purposes I am sitting

at first instance? Certainly, in the sense that this is the first instance that this point of environmental statement has been raised, quite apart from the helpful submissions on whether or not this development fell within the second schedule. Mr Hicks also advanced, I thought, a very telling argument on prejudice which I would not otherwise have had the benefit of hearing.

MR JONES: My Lord, to answer your Lordship's first question, yes, I must concede this is a decision at first instance.

MR JUSTICE TUCKER: Yes, that is very sensible.

MR JONES: To take a number of points your Lordship has made. First of all, I come to the points my learned friend, Mr Hicks, made about the question of separate interest.

My Lord, the House of Lord's decision in Bolton is quite clear, merely because one is defending a planning permission is not a separate interest, but one then goes on to consider the degree to which the Second Respondent raised separate issues which were not covered by the Secretary of State. I dealt with the first point about the further consideration of the need for Environmental Impact Assessment and, my Lord, and I have given my submissions on that, or the division of the Secretary of State and the Second Respondent on that argument.

On the question of prejudice that was raised by my learned friend, ultimately, it will be a matter for your Lordship but, in my submission, those submissions again were not an issue that could not have been dealt with by the Secretary of State and also, in any event, they where not issues that ultimately were material to the outcome of the decision.

If one looks at the particular circumstances on the next page at 1179, the House of Lords justified a second order of costs in the case. The first case was, that:

"The case raised difficult questions of principle arising out of the change of Government policy towards out-of-town shopping centres between the date of application and the final decision."

It goes on to talk about:

"The Secretary of State was concerned not only to support his decision.

The Secretary of State was concerned not only to support his decision, but also to explain and defend his wider policy."

In my submission, this is not such a case. We are not dealing with an attack on any general Government policy or defence of Government policy.

"Secondly, the scale of the development, and the importance of the outcome for the developers, were both of exceptional size and weight."

It was Mr Hicks' submissions in respect of urban development that this was not a development of such a significant size, 'exceptional size and weight'. In my submission, that second criteria is not met in this case, we are not dealing with what the Second Respondent's own arguments say, 'a development of significant scale size and weight'.

The third point again does not apply here. An unusual case, in opposition came from neighbouring local authorities.

MR JUSTICE TUCKER: Is it known whether in this case of Bolton anyone raised objection to a second set of costs at first instance? There is a reference to the order made by Mr Justice Schiemann, as he then was, at first instance, after hearing full representations on the point, so maybe the point was taken. I will assume in your favour it was.

MR JONES: I believe it was, my Lord, I cannot say categorically.

MR ELVIN: My Lord, if I can assist, I have a fuller report. Mr Justice Schiemann, as he then was, actually quashed the decision so he would not have awarded costs in favour of the second respondent.

MR JONES: I am grateful to my learned friend.


MR JONES: The other consideration peculiar to this case, which the Applicant relies upon in respect of the Second Respondent's case, your Lordship should have a copy, I have also given it to my learned friends. A chronology of the involvement of the Second Respondent in the history of this matter, if a copy can be handed up to your Lordship.

Before briefly looking at the chronology, my submission in this case is that the Second Respondent only became involved in this case at a late stage. Obviously, when an Applicant is being advised upon taking and pursuing an application of this nature, a certain degree of financial planning is envisaged as to the potential exposure as to costs. It will be my submission that by the time the Second Respondent entered the fray, in effect, and for all practical purposes, the dye was cast by the Applicant.

My Lord, if one looks at the Second Respondent's involvement, they were served with a copy of the Notice of Motion on 25th September 1996 for information. Then on 8th October, there was an affidavit sent to the Treasury Solicitor. A copy of covering letter with offer to send, if desired, to Herbert Smith.

Then on 8th November, letter to Treasury Solicitor, advising of pro forma from Crown Office, that is, an indication to the position in the list, copied to Herbert Smith for the Second Respondent with a note saying, that having not heard from them they would be seen to have no further interest unless we did. The Applicant does hear from them.

On 9th November, there was a telephone conversation with Herbert Smith who said they were not sure whether to appear at the hearing or not, because this might depend on whether they were in a position to afford it.

Then on 11th November, a letter from Herbert Smith saying that the club had not applied to become a party although they were interested.

On 20th November, a letter to the Treasury Solicitors, copied to Herbert Smith, advising of listing date.

On 24th January, first indication of a desire by the Second Respondent to become a party. The indication was from the Applicant that they would not resist the application to be joined, but obviously would reserve their position as to costs. That is the position which is now being canvassed before your Lordship.

On 28th January, a draft consent order was received, and then on 3rd February, a letter from those instructing me to Herbert Smith asking for an affidavit as a matter of urgency, although no affidavit evidence had been received. It was chased on 3rd February and on 7th February, a letter from those instructing me to Herbert Smith clarifying the position, seeking clarification of their involvement and reserving the right to take the point at the hearing.

Your Lordship, those separate points on the chronology relating to the service of an affidavit by the Secretary of State, that affidavit was only received, you will see, my Lord, on 8th January and in respect of the Second Respondent, in addition to the points made in respect of the application of Bolton. There is, as I say, the late entry of the Second Respondent into the fray, despite being informed throughout of the Applicant's application.

There is just two matters: one which, perhaps, I should have addressed your Lordship earlier on when I was dealing with the points raised by my learned friend, Mr Hicks. There is, in my submission, no reason why the Second Respondent, if they wished to make those points, could not have done it by way of the submission of an affidavit before this Court.

Secondly, the effect of allowing the Second Respondent's costs, in any event, but also leading and junior counsel.

MR HICKS: If I can make it clear, we would not be asking for the costs of a junior at the hearing.

MR JONES: I am grateful. In any event, one would not be expecting the Applicant -- this is a subsidiary point, my Lord, to be responsible for any costs prior to the formal joining of the Second Respondent, but that is a subsidiary point. My Lord, if you are against me on the issue of the Second Respondent's costs as a whole.

In my submission----

MR JUSTICE TUCKER: I think Mr Hicks has conceded that, he certainly told me that any order he obtained would exclude the ex parte application for joinder and expedition. Perhaps I was wrong to assume that he excluded costs prior to that.

MR JONES: As long as that is the case, and there is no other work that has been done in relation to the appeal which does not relate to the applications.

MR HICKS: I would not exclude costs prior to that. Your Lordship will see from the chronology, that we did not actually get a signed consent form from them, and they cannot benefit from that.

MR JUSTICE TUCKER: You are simply excluding the costs of the application itself. Not costs which may have preceded it.

MR HICKS: Obviously, costs immediately connected with that application, yes.


MR JONES: In my submission, my subsidiary point still stands that any costs incurred before joining the Second Respondent, in my submission, should not be paid by the Applicant. I am not quite aware of my learned friend's point on the signed draft consent order. It was made quite clear between the parties as to the Applicant's anticipated agreement and the terms on which the Applicant agreed to the Second Respondent being joined, so there was no issue as to the Applicant opposing that joining, but simply reserved their point as to costs.

My Lord, finally then, to allow the Second Respondent's costs in this case would have an unduly penal effect on the Applicant in bringing this action, and as a matter of fairness and justice, would make it very difficult in the circumstances for any applicant to contemplate bringing proceedings even when, on the face of it, there is an error of law by the Secretary of State. My Lord, I think that is all I have to submit, but I will briefly taken instructions as I was not the counsel instructed.


MR JONES: I was not counsel instructed, but I have instructions both from Mr McCracken and those instructing me that counsel for the Second Respondent was asked by Mr McCracken whether he was producing a skeleton argument and he said no, that he was unlikely to go beyond the Secretary of State in his submissions, and that was certainly the understanding both by counsel and those instructing me.

Up until the beginning of the hearing and, indeed, I am instructed by Mr McCracken and by those instructing me that he did ask this question, before a skeleton argument which I understand was not produced by the Second Respondent, but we were told, effectively, that they would not be taking any new points in respect of the Secretary of State. It is a point I should have raised earlier, but it is a point, my Lord, that I do, in the circumstances, attach considerable importance to, particularly in the light of the practice directions relating to the service of skeleton arguments in these matters. If the relevant provisions do provide that if skeleton arguments are not produced, or if a point is taken which is not in the skeleton argument, then that may give rise to a costs order. I do not have the practise direction with me, but I do not believe that would be in dispute. If it is in dispute, I would need to refer to the practice directions. The practice direction format in the Crown Office is that skeleton arguments should be produced, and if points are taken outside, then that will give rise to costs. That is a further submission which I do place some considerable reliance upon. I am very grateful, my Lord.

MR JUSTICE TUCKER: Thank you, Mr Jones. Mr Elvin, first of all, do you wish to apply? It is said that you are not entitled to your costs because you made an error of law in the first place and, as it is put, you kicked off on the wrong foot at the beginning?

MR ELVIN: My Lord, I take a very simple approach to all of this which I hope commends itself to your Lordship. It is simply to ask your Lordship to read the Bolton judgment. The Bolton judgment states what their Lordships clearly thought was obvious, and in my submission it is obvious, namely that there are no rules as to costs. That is on page 1178 at F. Proliferation of authorities dealing with specific facts in specific cases like the Maori case or the Miller case does not assist your Lordship, as it is a discretion for your Lordship.

The most relevant point is that the guidance in the Bolton case is specifically directed to appeals under section 288 which is precisely what is before your Lordship. In my submission, your Lordship need go no further than the Bolton case. In accordance with the Bolton case, the Secretary of State when successfully defending his decision, which he has done, will normally be entitled to the whole of his costs.

My Lord, there is a point of public important which I have to draw to your Lordship's attention and, of course, this is a case where two sets of costs were awarded by the House of Lords. The three reasons given by Lord Lloyd is on page 1179. The first at letter B to D refers to the fact that because the Secretary of State was going wider than merely the individual decision, we had to remain aloof, because if he had to redetermine the matter then, of course, he would have to act with fairness to all the parties in public interest and he should not be seen to be too close to one of the parties to the appeal.

MR JUSTICE TUCKER: In my own experience, it was in rating rather than in planning, I appeared for a Second Respondent, I remember, and I am sure we obtained our costs in the Court of Appeal apart from the conventional objections to any point of principal, but we did not obtain them in the House of Lords. Distinctions seem to have been drawn in that particular case, but that was many years ago now.

MR ELVIN: My Lord, I realise I have misread it. In fact,

Mr Justice Schiemann, as he then was, did award two sets of costs. It is clear on page 1179 at E, they ordered a second sets of costs in favour of Manchester Ship Canal Co., this is in accordance with the order made by Mr Justice Schiemann. I am sorry to have mislead your Lordship earlier, Mr Justice Schiemann had awarded costs at first instance. It was the Court of Appeal that quashed the decision by Mr Justice Schiemann, but the House of Lords restored Mr Justice Schiemann's order.

My Lord, the important point about remaining aloof -- although the Secretary of State through myself and Mr Richards have done our best to cooperate in terms of speeding matters up and not having any reputation so, obviously, we have cooperated to some degree with

Mr Hicks and his junior. If your Lordship was in favour of the application, the Secretary of State would then have to determine whether or not Environmental Assessments were required. Hence, Mr Richards leaving open the questions about the application of the directive. It would not have been right for the Secretary of State before your Lordship, given that he had received no representations from all of the parties at that stage, because as your Lordship points out, the point simply had not been taken. The Secretary of State could not prejudge the view he might have reached on the facts, which is why the point was simply left open.

My Lord, Lord Lloyd's first point for awarding costs to the Second Respondent in Bolton, in my submission, applies equally here. As for saying there is no general point of public interest, it was the Applicants who originally contested that the Secretary of State was in breach of a treaty obligation, your Lordship recalls the submission, that the directive had been improperly transposed into English Law. Your Lordship, of course, accepted Mr Richards' submissions that one construes the matter in accordance with the directive rather than simply looking at it in cold.

MR JUSTICE TUCKER: I think you should have your costs, but what about this supplementary point that you should have costs for one counsel only, Mr Elvin?

MR ELVIN: My Lord, I feel rather hurt. My Lord, all I can say is this is a case which raised an important point. The Applicant, through Mr McCracken, made it very clear how important they regarded it. The Applicant has gone so far as to proclaim herself as having taken a point of general public interest, but your Lordship having rejected that, it is not for the Applicant to turn around and say well, because we lost, it is not that important. Of course it is important. There was an allegation of breach of Treaty obligation and, in my submission, it was perfectly proper for the Secretary of State to have the assistance of two counsel.

Secondly, although the case is still before you, when a similar point was taken in the Wychavon case, which Mr Richards referred you to, a case of which I was also acting for the Secretary of State, the Court of Appeal did not deny the Secretary of State the costs of Mr Bowen QC who was leading me in that case where similar points were raised. My Lord, in my submission, there is no good reason to deny the Applicant the privilege of paying my fees.

MR JUSTICE TUCKER: You put it very modestly, Mr Elvin, thank you. Yes, Mr Hicks. Why should the Applicant bear a second set of costs?

MR HICKS: My Lord, because we come fair and square within Bolton, put shortly. If your Lordship has before you the Bolton case, starting at page 1178. First of all, (2), at the bottom of that page at letter H, where it talks about the developer. Of course, the club is rather more than a developer, I would point out.

The normal rule is no, "unless", it says in little (2):

"He can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation."

We say both apply in this case. For example, in relation to discretion and prejudice, it is one category. Secondly, which has not been mentioned, in relation to factual matters including, for example, what went on at the Inquiry.

MR JUSTICE TUCKER: Were you the only counsel before me who was present at the Inquiry? Was Mr Elvin present or not?

MR ELVIN: My Lord, no, I was not present at the Inquiry.

MR HICKS: I was not the only counsel, my learned friend

Mr Reid was a pupil at the time and assisted me at the Inquiry.

MR JUSTICE TUCKER: I am sure he played a significant part.

MR HICKS: I was the only counsel who was formally representing at the Inquiry, my Lord. Thirdly, my Lord, the question of the application of the regulations to the circular, if the Secretary of State had considered it, and he went on to consider it. My Lord, we say it was particularly clear that we should be here. Once there became a possibility that the Secretary of State might concede that he had not considered it -- of course, the Secretary of State's affidavit, I think, was at the end of December, and it was not, of course, until you get the skeleton argument that you concede exactly how the Secretary of State is going to put it.

My Lord, if I can just say something about timing. We have only just seen this schedule, but I am not going to go through it. It should not be taken that if I do not say something I agree with it, I do not think details matter, because if you look at the timing, my Lord, we have the affidavit of the Secretary of State in December, and then in January, whatever happened before that, us saying we wanted to become a party, and it is not as though my learned friend withdraw when he knew we were going to be involved and saw our affidavit.

MR JUSTICE TUCKER: When were you first joined as a Second Respondent?

MR HICKS: The 14th February, my Lord. If you remember, my Lord, there was a slightly unusual timing to this case because this case was due to be heard on 13th February.


MR HICKS: We were going to be apply to be joined immediately before the case started, but because of unforeseen events we were not heard on that day. We then went ex parte on the next day, because we were getting very concerned about the programme to get expedition and to be joined.

We did not get a consent form from the Applicant, they had never signed a consent form saying that we could be joined, they just wrote us a letter saying they would not object if we applied at the hearing, but given that the hearing had disappeared, and given that we would have difficulty going for expedition without being a party, we had to do the two together, my Lord. The point is this, my Lord, if as soon as they saw our affidavit they had said, 'we do not have a case now, we will withdraw it', then one can understand at least the argument, but they have not, then have continued.

I will come to the skeleton argument later, my Lord, as I do not think it is relevant to the main point. My Lord, the point is we were constantly monitoring the case throughout. It is not until we get an affidavit from the Secretary of State that the Applicants realised they have an argument that the Secretary of State did not consider it. If the Secretary of State said, 'yes, I have considered it, and it was not necessary', then it might not have been necessary for to us turn up, I do not know, we would have to consider it.

Can I just look at the practicalities of whether we were justified in being here, and that is really what Bolton is looking at. Under the first heading of 'discretion and prejudice', there were, of course, matters directly concerning the club in a different way from the Secretary of State. We not only produced material in affidavits dealing with the prejudice to the club, but we put forward arguments, as to factual matters and the situation is similar. The nature of the challenge made and the fact that it was going on the basis of -- not considered, did not make any difference, but meant that events at the Inquiry, for instance, were relevant. We were there. The Secretary of State was not and, of course, the local planning authority were not represented before you.

My Lord, we provided material to the Court which the Applicants did not provide, and which all three parties referred to quite extensively. We also made submissions on that material which went further than the Secretary of State.

Under the third heading, what would have happened if the Secretary of State had considered? The Secretary of State did not deal with that. Again, it is exactly on all fours with the point in Bolton which my learned friend Mr Elvin has dealt with. It was a matter which was clearly relevant to your discretion and it was right that we should be here to make sure it was a matter that was dealt with, and we did.

My Lord, if I can just move on in Bolton to the second point, which is at D page 1179. "Secondly".

My learned friend has not actually read the whole paragraph even though it is short:

"Secondly, the scale of the development, and the importance of the outcome for the developers, were both of exceptional size and weight."

There can be no doubt, my Lord, that this is a case where the importance of the outcome to the club is exceptional. If the decision had been quashed it threatened the whole existence of the club at Craven Cottage.

My Lord, the third point in Bolton is at letter D. Again, it is exactly the same. The opposition in that case did not come from the local authority, nor did it in this case. The local authority were supporting us at the Inquiry and would have granted permission if it had not been called in. Again, that is on all fours with the exception in Bolton.

My Lord, we say for very similar reasons, we should be awarded our costs. I have just a few additional points.

MR JUSTICE TUCKER: Did I understand you to concede, that you would only be entitled to costs of appearing before me by one counsel, leading counsel?

MR HICKS: Yes, appearance, my Lord, yes. Although we would be seeking costs for preparation work done by Mr Reid which, indeed, would save costs rather than add to them.

My Lord, we would say it was entirely reasonable for the club to be represented here in the circumstances by counsel who represented them at the Inquiry, given the nature of the issues.

MR JUSTICE TUCKER: Yes, did you represent them on your own at the Inquiry?

MR HICKS: Mr Reid was assisting me, but I do not think he was formally instructed. That is right, he was a pupil to someone in chambers who came along for the duration, and took a note and actually did rather more.

My Lord, can I say a few additional things? It is not enough and never was enough in these proceedings for the Applicants to show that the Secretary of State had not considered the matter. They had to show that there were good grounds for actually exercising discretion and quashing this decision and they lost. The ball correctly went in the goal, and that is what mattered. In those circumstances, they have effectively delayed seven months since the decision letter, and if they get it wrong, on advice, they must be at risk for costs where it is reasonable for us to turn up.

My Lord, can I just deal with some other detailed points?

MR JUSTICE TUCKER: Am I right in assuming, because I thought I was told that this point had never been ventilated at the Inquiry and only arose sometime afterwards?

MR HICKS: The first time that it can be said to have been raised in one form or another was, there was a mention of it in a letter attached to a bundle that went to the Secretary of State or the Inspector after the Inquiry was closed.

MR JUSTICE TUCKER: There was no application to reopening the Inquiry?

MR HICKS: No, my Lord. My Lord, I do not want to get into what I did or did not tell Mr McCracken over the telephone in advance of the first date for the hearing, but I was then telling Mr McCracken that we did not want to take points unless it was necessary, as it depended on what the Secretary of State did or did not take. In any event, we would want to be there in case points came up in relation to what happened at the Inquiry.

We produced a skeleton argument before the date for the first hearing, before 13th February, so there can be no complaint that that was not around long enough. Anyway, I cannot see that it is particularly relevant, unless the Applicants are saying, we knew as soon as we received it that our case was hopeless and were going to withdraw it.

My Lord, the final point. We do not see why we should be excluded from getting costs for the period when we had indicated to the Applicants that we wanted to be joined and involved, but they had not consented, so we had to wait until the hearing. My Lord, is there anything else I can assist you on?

MR JUSTICE TUCKER: No, thank you. Mr Jones, you have had the opportunity of answering these applications.

MR JONES: I should like to exercise it, my Lord.

MR JUSTICE TUCKER: You have had it. You have had the opportunity of answering, what is it now?

MR JONES: It is just a matter of point.

MR JUSTICE TUCKER: They made the application for costs, you have answered it, and they have replied. By what principle do you now seek to address me again?

MR JONES: It is not as a matter of law, it is a matter of the factual submissions which were made by Mr Hicks, in particular, the assertion which I do not believe was contained in any affidavit evidence that was put before your Lordship, that if this development was not granted planning permission; the future of the club was at stake.

I am instructed that that was not evidence put before your Lordship, and it is a point that Mr Hicks now seeks to rely upon. In my submission, it would be quite improper to rely upon that point, since it was not in evidence before the Court.


MR JONES: There is another point of fact as well, my Lord, since your Lordship addressed Mr Hicks on the question, again, it was not something that was brought up, but I am instructed that the letter that was sent requiring Environmental Assessment was put by the Applicant before the Inspector, and that was not an issue----

MR JUSTICE TUCKER: All I can say is, no one told me that during the hearing, but I recall----

MR ELVIN: My Lord, my learned friend is wrong. That letter was put in as post-inquiry correspondence, it is exhibited to Mr Bridge's affidavit.

MR JUSTICE TUCKER: I cannot reopen all this debate now, all I can say, Mr Jones, is I have no recollection of being told that during the very detailed hearing. If I am wrong, those behind you will correct my recollection.

MR HICKS: The third affidavit of Sophie Quale sworn on 14th February 1997, paragraph 6 specifically raises the question of having to leave Craven Cottage.

MR JONES: With the greatest of respect, it is a different point to the future of the club, which I understood that my learned friend was making. Many football developments, Bolton Football Club, in fact, moved from their site to another site. It is a different point with the greatest of respect to my learned friend from the future of the club as a club.

MR JUSTICE TUCKER: Whether they have to move or not is a matter of great importance to them, Mr Jones.


MR JUSTICE TUCKER: At the end of a detailed hearing before me and after having reserved my judgment in order that I could consider all the submissions and material fully, I came to the conclusion that the Applicant had not made out her case. I declined to quash the decision reached by the Secretary of State, and I dismissed the application.

Further applications are now made to me by the Respondents to this appeal, that their costs should be paid by the Applicant. All parties were represented before me by counsel, and let me say at once how much indebted I was to the submissions which each of them made. The Applicant was represented by junior counsel of great experience in planning matters. The Secretary of State, the First Respondent, was represented by senior Treasury Counsel and by Mr Elvin.

The Second Respondent, the football club, who were the developers, were represented by Mr Hicks QC. He does not suggest that the Second Respondent's costs, if they obtain them, should include the appearance of any other counsel, although preparation work is another matter.

The Applicant objects to any order of costs being made. Secondly, she submits through counsel that she should not have to bear two sets of costs and, in any event, should not have to pay the costs of more that one counsel for each of the respondent. As to the Second Respondent, I have already dealt with that point.

The grounds of the Applicant's resistance to the making of an order for costs are in summary these: so far as the Secretary of State is concerned, he made an error of law in not considering whether to call for an Environmental Assessment. I have dealt with that fully in my judgment, and I have also dealt with the fact that although that was perfectly frankly and properly conceded, the result of the Inquiry was by no means effective. The outcome would have been and must have been precisely the same, even if an assessment had been required.

The Applicant, I accept, has no financial interest in these proceedings. She takes a very proper interest in the environment, and she is to be congratulated for her public spirited attitude in that regard. She is, and was, very concerned about the effect of this development upon the ecology of the River Thames, that I pay tribute to. Nevertheless, the points she raised before me were not, to my mind, ventilated at the public inquiry. It is suggested that there may have been some reference to it, but I by no means am sure that that was the case. It does not seem to me that the question of whether there should be an Environmental Assessment, let alone an Environmental Statement was raised before the Inspector, and he makes no reference to it.

The fact is, as I have found in my decision, it would have made absolutely no difference. All the issues which would have been covered by such an assessment or statement were fully canvassed at the Inquiry and dealt with.

I see no reason why the First Respondent's costs should not be paid and, in my opinion, it was a matter of considerable importance which merited the attendance before me of Mr Richards and Mr Elvin. I order that the Applicant pay the First Respondents costs including the costs of appearance before me of two counsel.

Costs of the Second Respondent then have to be considered. They are the Fulham Football Club who, as I have said, were the developers. The Applicant argues that she should not be called upon to pay that second sets of cost.

I have been much assisted by counsel on both sides to the case of Bolton Metropolitan District Council and Secretary of State for the Environment and Manchester Ship Canal Co and Trafford Park Development Corporation (1995) 1 WLR 1176.

I bear in mind the propositions set out in the speech of Lord LLoyd of Berwick at page 1178 letter G of that report.

"(1) The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award of costs by apportionment."

That principle I have already adhered to.

"(2) The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second sets of costs in every case."

Pausing there. I am satisfied that the football club did have a separate issue on which they were entitled to be raised. It was first of all a question whether, even if the Secretary of State had considered the call for an Environmental Assessment, it would have been an appropriate case in which to make one, and second, the question of the very great prejudice and delay which would be occasioned to the club if the Secretary of State's decision were quashed.

Moreover, the Second Respondents, to my mind, had an interest which required separate representations for the reasons I have already sought to outline.

The third principle or proposition referred to by Lord Lloyd was this:

"(3) A second set of costs is more likely to be awarded at first instance, than in the Court of Appeal or House of Lords, by which time the issues should have crystalised, and the extent to which there are indeed separate interests should have been clarified."

It is conceded that the proceedings before me were in the nature of first instance proceedings. I have been greatly assisted in reaching my decision by the submissions made to me by Mr Hicks QC. I think it right that the football club should be interested in this case. I bear in mind what Lord Lloyd went on to say at page 1179 letter D, the scale of the development and, in particular, the importance of the outcome for the developers was certainly of exceptional weight. To some extent the future of the club did depend upon the outcome of these proceedings, but whether or not they would have had to move from the ground, I leave as an open and undecided question. It is not necessary for me to deal with it.

This was a matter of paramount importance for the club and they were fully entitled, to my mind, to be represented at this hearing. Accordingly, sympathetic though I am to the Applicant whose objectives have been entirely altruistic, I must, I am afraid, ask her to pay the costs of both respondents.

So far as the Second Respondent is concerned, I have made it plain that those costs will only involve the appearance by leading counsel and not by two counsel before me, although they must include any preparation work done by junior counsel and exclude the costs of the ex parte application for a joinder and expedition. Are there any further applications? Thank you.