IN THE HIGH COURT OF JUSTICE NO: CO/4505/2001
QUEEN'S BENCH DIVISION
Combined Court Centre
19th February 2002
B e f o r e:
MR JUSTICE TURNER
- - - - - - -
- and -
SECRETARY OF STATE FOR TRANSPORT,
LOCAL GOVERNMENT AND REGIONS
CANTERBURY CITY COUNCIL
- - - - - -
transcript of Smith Bernal Reporting Limited,
180 Fleet Street, London EC4A 2HG
(from the prepared transcript of Margaret Wort & Co)
- - - - - -
MR R McCRAKEN (instructed by Richard Buxton, 40 Claredon Street, Cambridge CB1 1JX) appeared on behalf of the Claimant
MR M BEDFORD (instructed by Treasury Solicitors) appeared on behalf of the First Defendant
The Second Defendant was not represented.
MR P VILLAGE & MISS L BUSH (instructed by Stephenson Harwood, London EC4M 8SH) appeared on behalf of the Third Defendant
- - - - - - -
POST-JUDGMENT DISCUSSION AND RULING
- - - - - - -
1. MR VILLAGE: My Lord, I appear for Canterbury College, with my learned friend, Miss Bush.
2. MR JUSTICE TURNER: As you have throughout, Mr Village.
3. MR VILLAGE: I, first of all, wish to tell the court that, following my Lord's decision in January, the following day my clients decided, on advice, to submit to judgment, and that fact we had hoped had been communicated to the court.
4. MR JUSTICE TURNER: No.
5. MR VILLAGE: I am sorry that it was not. But, nevertheless, it means that, so far as the issues for today are concerned, other than dealing with the question of costs, there is also the question of the order which all the parties would be seeking the court to make.
6. MR JUSTICE TURNER: Well, in the light of what I have said, quite clearly this is a proper case in which the decision letter should be quashed.
7. MR VILLAGE: My Lord, yes. There has, as I apprehend you will be --
8. MR JUSTICE TURNER: Mr Bedford, I assume you agree with that?
9. MR BEDFORD: Yes.
10. MR JUSTICE TURNER: And Mr McCracken?
11. MR McCRACKEN: My Lord, yes.
12. MR JUSTICE TURNER: And raise no objection?
13. MR McCRACKEN: No.
14. MR VILLAGE: And, indeed, the second defendant - we have correspondence from them - also agree, and you may well be taken to that in a moment. So, other than dealing with the precise terms of that order, that is plainly something that, my Lord, we would be seeking an order from you formally today.
15. These are, then, other matters which the parties I think would be asking my Lord to deal with. Can I just indicate what I perceive those to be?
16. MR JUSTICE TURNER: Yes.
17. MR VILLAGE: The next matter will be the costs arising from the claimant's application under the section 288 application, and by "those costs," I really mean those costs which are not including the costs relating to the interlocutory applications. The third matter --
18. MR JUSTICE TURNER: Sorry, that is all number 1.
19. MR VILLAGE: Well, sorry; I was going to put number 1 as the terms of the order.
20. MR JUSTICE TURNER: I see, yes.
21. MR VILLAGE: The second is the costs arising from the claimant's application.
22. The third, the costs of the college incurred in dealing with the claim generally, again not including the interlocutory applications, which are separate, but certainly including the costs since 14th January, when we indicated to all the parties that we were prepared to submit to judgment.
23. Fourth, the costs in respect of the application by the college for summary judgment and/or strike out, which was not pursued by the college and, I apprehend, a claim for costs by my learned friend Mr McCracken, on behalf of the claimant, against my clients, and I will obviously submit in due course what my client says about that.
24. Fifth, the costs in respect of the claimant's application for extension of time.
25. Sixth, the costs in respect of the college's application for security for costs.
26. My Lord, I hope that that is a comprehensive --
27. MR JUSTICE TURNER: Is that a common agenda, Mr Bedford?
28. MR BEDFORD: My Lord, not quite putting it in that way. It may be, I am sure, a misunderstanding on my part, but I was not quite clear of the distinction. My learned friend's item number 2, compared to his item number 1 and his item 5 there seem to be --
29. MR JUSTICE TURNER: Well, he may have to elaborate on that, so that it will be comprehensible both to you and to me.
30. MR BEDFORD: My Lord, that is all I say at this stage. I do not know whether your Lordship wants me to respond?
31. MR JUSTICE TURNER: No. I just want to set the agenda for what is to follow.
32. MR McCRACKEN: My Lord, I was a little bit lost by what my learned friend said. I am not unduly troubled by that, but I was a bit surprised that his last item was costs of his application for security for costs. My learned friend made an application which was ...
33. MR JUSTICE TURNER: Yes.
34. MR McCRACKEN: ... much broader than that.
35. MR JUSTICE TURNER: We are not discussing the merits of it, but merely the contents of the agenda for discussion this morning.
36. MR McCRACKEN: My Lord, yes. But one of the items that I would be putting on the agenda is the cost of Mr Village's application to strike us out. Now, it may be that I misheard Mr Village, and he identified that at an earlier stage, and if so, I apologise.
37. MR JUSTICE TURNER: He did; that was his item 4.
38. MR McCRACKEN: I apologise.
39. MR JUSTICE TURNER: I actually call it 'item 3' because I am taking out his serialisation number 1, which is the substantive order of the court.
40. MR McCRACKEN: Yes.
41. MR VILLAGE: My Lord, I am sorry I was not clear.
42. MR JUSTICE TURNER: Shall I tell you what I have written down? My serial 1 is: "Costs which arise from the claimant's application under section 288."
43. MR VILLAGE: Yes.
44. MR JUSTICE TURNER:
"1. Costs of the college in dealing with the claim generally, including the costs since 14th January.
2. Costs by the third defendants for summary judgment and strike-out proceedings, which were not, in the event, pursued.
4. Costs of the claimant's application for extension of time.
5. Costs in respect of the college's application for security for costs."
45. MR VILLAGE: My Lord, yes. Those are precisely the agenda items that I had sought. I am sorry if they are not clear.
46. MR JUSTICE TURNER: Well, you have the opportunity of making them clear.
47. MR VILLAGE: Yes. My Lord, I am not sure whether you would like me to kick off on this: in terms of the terms of the order --
48. MR JUSTICE TURNER: Well, as the claimant has, by - if not consent - concession, succeeded, perhaps the claimant should make her application.
49. MR McCRACKEN: My Lord, I am much obliged.
50. My application is that my client should have her costs of the claim, subject to one exception, and that the costs that the claimant should recover should, in general, come from the Secretary of State, with, however, this proviso, exception to that: her costs of the interlocutory application should come from the college. The interlocutory applications are the application by my learned friend, Mr Village, to strike us out and his application for...
51. MR JUSTICE TURNER: Summary judgment and security.
52. MR McCRACKEN: ... security, my Lord, yes. And, also, of course, our application for an extension of time. The one reservation to the application for an order for costs that I make is this: it would be wrong for my clients to have the costs of an unopposed application for an extension of time. If our application for an extension of time had not been opposed, then it would have been wrong for us to ask for the costs of that, and, therefore, the element of costs in respect of our application for extension of time that I seek are simply those additional costs associated with the fact that it was an opposed application.
53. I appreciate that that is the majority of those costs, but it would be wrong for me, on her behalf, to ask that that element of the costs that would inevitably have been incurred even if Mr Village had objected to it.
54. MR JUSTICE TURNER: Is there a costs schedule?
55. MR McCRACKEN: I think...
56. MR JUSTICE TURNER: If not, why not?
57. MR McCRACKEN: There was on a previous occasion. On the first day there was, but then, because it became a matter that...
58. MR JUSTICE TURNER: Well, I recall a defendant's costs schedule. There was indeed a claimant's costs schedule.
59. MR McCRACKEN: There was. But when the matter initially came before your Lordship on Mr Village's interlocutory applications, it was envisaged that it would be a one-day hearing. But in the vent, it became a three-day hearing, and, therefore, the basis upon which our judges are subjected to the burden of assessing costs disappears, because, as it was a three-day hearing, it would be a matter where costs would normally be fixed by the costs judge, rather than by the judge dealing with the substantive matters.
60. MR JUSTICE TURNER: That is right, is it?
61. MR McCRACKEN: Well, that is my understanding, my Lord. That is why we have not sought to burden your Lordship with figures.
62. MR JUSTICE TURNER: If that is right, I am much relieved.
63. MR McCRACKEN: I thought that that would not be an unwelcome suggestion on my part. So, my Lord, I hope that I have made clear the basis upon which I seek our costs.
64. MR JUSTICE TURNER: I think I can say you ask for costs against the Secretary of State, save to the extent that you have incurred costs in resisting the interlocutory applications on behalf of the third defendants.
65. MR McCRACKEN: Yes.
66. MR JUSTICE TURNER: Save that there should be no order for costs of the application for extension of time for the service of the proceedings and evidence.
67. MR McCRACKEN: With this proviso, my Lord: we do not ask for the additional costs associated with --
68. MR JUSTICE TURNER: You ask for hearing costs...
69. MR McCRACKEN: My Lord, yes.
70. MR JUSTICE TURNER: ... on that issue, but not the issue of costs.
71. MR McCRACKEN: My Lord, that is right. My Lord, yes. I am obliged. Your Lordship puts it accurately and effectively, and I am much obliged to your Lordship.
72. MR JUSTICE TURNER: Sometimes I have a felicitous inability to do otherwise.
73. MR McCRACKEN: My Lord, your Lordship will appreciate the basis upon which I make all those applications. Civil Procedure Rule 44 provides that costs should normally go to the party who has won on any particular issue, and, therefore, my client --
74. MR JUSTICE TURNER: Well, in a sense, you are now striking at an invisible object.
75. MR McCRACKEN: Yes. I do not know what basis -- what the response will be; I will sit down.
76. MR JUSTICE TURNER: Precisely so. Mr Bedford, you seem to be first in the firing line.
77. MR BEDFORD: My Lord, yes. My Lord, as between the first defendant and the claimant, my Lord, in my submission, the appropriate order should be as put by my learned friend, which was not quite, as I understood it, the same as recited by your Lordship. The position as my learned friend --
78. MR JUSTICE TURNER: So, what is the order to which you would be content to submit?
79. MR BEDFORD: That the first defendant pays the claimant's costs of the application.
80. MR JUSTICE TURNER: Yes.
81. MR BEDFORD: But not the costs of any of the interlocutory applications.
82. MR JUSTICE TURNER: I do not think I understood Mr McCracken to be asking that you should pay.
83. MR BEDFORD: Well, the point was merely in the words your Lordship said "My learned friend's costs resisting the interlocutory applications," whereas part of my learned friend's cross-claim --
84. MR JUSTICE TURNER: Well, he was resisting Mr Village's interlocutory applications. You have not made any.
85. MR BEDFORD: But one of my learned friend's interlocutory applications was an application for an extension of time, and, as I understand it, my learned friend seeks his costs of that application for an extension of time excluding merely his issue costs.
86. MR JUSTICE TURNER: Those costs, I think there is an error of omission he seeks to recover from the third defendants, rather than the first defendant.
87. MR BEDFORD: Yes. That is what I understood his position to be. So long as your Lordship understood that that was his position, then, my Lord, I do not take issue with my learned friend's application on that basis.
88. MR JUSTICE TURNER: Yes.
89. MR BEDFORD: My Lord, if I can simply mention, in correspondence, and it is not a matter that your Lordship needs to trouble with at this stage greatly, but in correspondence, there had been attempts to identify what the appropriate order would be by time periods, so that, for example, up to the date that we had indicated that we would submit to judgment and so on. My Lord, it would seem merely to be a different way of identifying the relevant costs, so I do not need to deal with that, unless your Lordship thinks it is more helpful than the way that has already been identified.
90. MR JUSTICE TURNER: I think the descriptive method of dealing with it is preferable to a date sequence method.
91. MR BEDFORD: I am grateful.
92. MR JUSTICE TURNER: Now, Mr Village?
93. MR VILLAGE: My Lord, we have prepared a bundle of correspondence.
94. MR JUSTICE TURNER: Which reached me, I think, at 29-minutes-past-10.
95. MR VILLAGE: I am sorry, my Lord. We simply did it, actually in an act to be helpful, in that it contains correspondence which is already in the main bundle, so it will not be unnecessary --
96. MR JUSTICE TURNER: It is extracted correspondence.
97. MR VILLAGE: It is, and also correspondence since the hearing in January. So the attempt is at least so my Lord will not have to go through from bundle to bundle.
98. MR JUSTICE TURNER: I am grateful for that.
99. MR VILLAGE: But, in the event, my Lord, first of all, can I just say that my submissions are against the following background: my client is, in a sense, the innocent and injured party in this battle between the claimant and the Secretary of State, but the enormity of the injury cannot be underestimated.
100. For some years now, there have been many who have taken the slightest point, the waters have been, effectively, infested by those who would take the slightest point in relation to environmental statements. The Secretary of State must have been --
101. MR JUSTICE TURNER: Mr Village, I think you can take it that the court is quite familiar.
102. MR VILLAGE: Well, my Lord --
103. MR JUSTICE TURNER: And so the water is dangerous stuff.
104. MR VILLAGE: It is. All I would simply say, my Lord, is that the Secretary of State has, effectively, admitted in this case that he left unread on his desk for 18 months a document which was submitted in good faith by my clients, which he should have read, and so that is the background.
105. That background is against the background also of my clients seeking to provide for the education and provision of 16- to 18-year-olds in a much needed facility.
106. As, therefore, against that background, I make the following submission: as to the costs of the application under section 288, clearly the claimant's costs are in the discretion of the court, and I have no observations as to whether or not the Secretary of State should bear the claimant's costs.
107. I note that this is a case where Mr Buxton has entered into a conditional fee arrangement. We were supplied with details that a conditional fee arrangement had been entered into in December, and, as I understand it, a 100% uplift is sought by the claimant in this case. How that affects the Secretary of State, I do not know, and it is absolutely of no consequence to me.
108. MR JUSTICE TURNER: How does it affect me?
109. MR VILLAGE: My Lord, I do not know whether this is being pursued, but certainly in correspondence it appears it is the contention that a 100% uplift should be paid.
110. MR JUSTICE TURNER: Well, unless it affects me, I will not entertain any submissions on it.
111. MR VILLAGE: Well, in that case, I move on, then, to what are the costs which my clients have incurred. These were the costs of dealing with the application when it was brought in November, up to the date of issue of the applications (the interlocutory applications) in December.
112. MR JUSTICE TURNER: That is claimant's interlocutory application for extension of time, is it?
113. MR VILLAGE: Well, no. I say, to be fair, the third defendant's (the college's) applications, so I would be seeking all my costs, dealing with the application, against the Secretary of State from the date of issue of proceedings up until 11th December 2001 and from 14th January 2002 to date, because we have, as my Lord will see in a moment, had much discussion between the parties as to the terms of the order.
114. It is a matter of great concern that, although we indicated to the parties on 14th January that we wanted to submit to judgment, there was then, as you will see, it has taken until now, no agreement had been reached, for one reason or another, which is a matter of great concern to us.
115. MR JUSTICE TURNER: No agreement has been reached because...?
116. MR VILLAGE: Well, because so far as Mr Buxton was concerned, he was seeking to widen the scope of the order; he said that the order should include various matters which were not pleaded, for example. So I will take my Lord to the correspondence. I am just giving you an overview at the moment. Of course, time is absolutely crucial to my client, and we were urging that this matter be brought to a conclusion quickly, and that is why --
117. MR JUSTICE TURNER: You will recall that I asked on 14th January, of Mr Bedford, how long it would take for a fresh decision to be taken.
118. MR VILLAGE: Well, the position as of last Friday is, the Secretary of State said that he was not prepared to sign the order because it was coming before my Lord, so all these things have taken time. So, we are seeking, effectively, the costs - this is on my agenda item 1 - the college's costs from the date of issue of proceedings until now, until 11th December, and then from 14th January until now, dealing with the terms of the application as made by the claimants. I do not - I make it clear - include under this head costs which are properly attributable to the interlocutory applications.
119. My Lord, the next item relates to costs in respect of the application by the college for summary judgment and/or strike out. I make a distinction between those two applications - interlocutory applications and the application that we actually proceeded with, which was the application for security - for reasons I shall explain.
120. My Lord, could you turn to the bundle which we have put in front of you this morning at page 154, please? My Lord, I would simply ask you to read, to remind yourself of the content of three letters which, if my Lord would like me to read, I would be very happy to do so, but I ask my Lord to do so.
121. MR JUSTICE TURNER: I much prefer my own internal voice, to yours.
122. MR VILLAGE: 154 to 159. My Lord, I am sure that is true of many people.
123. MR JUSTICE TURNER: Do sit down. Yes?
124. MR VILLAGE: So, my Lord will see the key paragraph in the first letter of the penultimate paragraph on the second page, where we draw attention to the fact that we may be --
125. MR JUSTICE TURNER: And you received an unhelpful response on the same day.
126. MR JUSTICE TURNER: We received a response on the same day, saying --
127. MR JUSTICE TURNER: I said "an unhelpful response."
128. MR VILLAGE: An unhelpful response, my Lord, yes. Then we asked, on 12th December, the following day (page 158) and received no response at all, until on 18th December - my Lord has already referred to this in the chronology in the judgment - we received a call from the Treasury Solicitor saying that they were proposing to submit to judgment, whereupon we immediately made, and if you would turn to, if you would, page 207, we made an application for request for information.
129. MR JUSTICE TURNER: To which there was a response.
130. MR VILLAGE: To which there was a response. So a wholly inconsistent stance by the Secretary of State; on the one hand telling us, on 11th December, "We are functus officio. We cannot tell you. Read the decision letter," and then when we actually formally asked on the 18th, on the 19th they tell us, "Well, yes, actually we did not read it."
131. Of course, the following day I then had to appear before my Lord and not proceed with those two applications, and I could not possibly on the basis of that. So, my Lord, I say, and in fairness to the Secretary of State, I make two submissions: the first is that, in relation to the claimant's application for summary judgment and strike-out, those costs --
132. MR JUSTICE TURNER: No, the third defendant's.
133. MR VILLAGE: I am so sorry. In relation to the claimant's application for costs in respect of the summary judgment and strike-out application --
134. MR JUSTICE TURNER: Of your applications.
135. MR VILLAGE: Yes. I resist that application, and I do so on the basis that, having regard to the conduct of the claimant, it was a perfectly proper -- there were two perfectly proper applications to make, and it was not until, effectively, the claimant changed the basis of the application with the Secretary of State, saying he would --
136. MR JUSTICE TURNER: Changing it from your failure to submit an Environmental Impact to the Secretary of State failing to have regard to the information which was available to him.
137. MR VILLAGE: Precisely. So we say, and also, obviously, my Lord will have regard to the conduct generally of the claimants, in terms of the timing, the fact that there was a lack of urgency and lack of cogency of explanation, and also the reprehensible conduct of the claimant's solicitors - although not contumacious - in failing to serve evidence. So we say, in respect of those costs, they should not be entitled to them.
138. But in so far as -- but, in any event, we say that the third defendant's costs should be, or those two applications should be paid by the first defendant. They should be paid by the first defendant from 11th December, which is when we asked the question, which, in my submission, the Court was bound to ask in this case; it was the key question to ask: "Did you [Secretary of State] have regard to the environmental information?" We asked that perfectly reasonable question and got a brush-off. We asked it again and, a week later, just the day before our application was to be heard, we had a substantive response. So that is my submission in relation to that item of agenda, if I may call it that.
139. My Lord, the next matter relates to the claimant's application for an extension of time. May I say that I am surprised that the application has been made solely against the college, rather than against all the defendants. The reason I am surprised, is because it is clear that, firstly, the Secretary of State did not consent to an extension - and I will give my Lord the reference in a moment - and nor did the City Council. So the Court was faced with --
140. MR JUSTICE TURNER: Are we getting into a difficulty, with the City Council not being represented?
141. MR VILLAGE: Well, my Lord, it seems to me that possibly we are, for a reason which is, as I have, because I have only just seen the bundle - and there is no criticism of anybody - but I have only just seen the bundle produced by the claimant, and it appears, at page 21 of the claimant's bundle - I do not know whether my Lord has that - it is a short bundle of, I think, 27 pages.
142. MR JUSTICE TURNER: Not knowingly.
143. MR VILLAGE: It is page 21: "In view of the fact ... "
144. MR JUSTICE TURNER: Wait one moment. Yes.
145. MR VILLAGE: My Lord, page 21. The City Council write:
"In view of the fact that there was no order for costs against the ... second defendant, in any event, it is not proposed that the second defendant will attend the hearing."
146. So that is their understanding of what the situation is so far as today is concerned. But it appears to be the case that, first of all, if I ask you to turn back to my bundle for this morning, page 188 ...
147. MR JUSTICE TURNER: Just one moment.
148. MR VILLAGE: ... on 21st December 2001.
149. MR JUSTICE TURNER: Wait. Your page?
150. MR VILLAGE: Page 188. It is the typed pagination - not in manuscript pagination - in the bottom right-hand corner.
151. MR JUSTICE TURNER: Yes.
152. MR VILLAGE: Canterbury City Council wrote to Mr Buxton:
"In relation to the interlocutory hearing presently in progress before Turner J let me just say for the avoidance of doubt that the non-participation of the City Council in those proceedings should not be taken to imply that the late service of the proceedings upon the City Council is accepted, it is not. The prosecution were received by 12th November 2001, which I understand to be five days out of time."
153. So there was no consent from the City Council and the Treasury Solicitor's position as at that time (page 216). In the second paragraph:
"Whilst it is presently intended that the first defendant will appear by counsel at the hearing of 14th January, I would respectfully inform the court that the position of the first defendant in relation to the claimant's application for extensions of time is neutral. The first defendant neither consents to nor opposes such application."
154. MR JUSTICE TURNER: It is called 'sitting on the fence.'
155. MR VILLAGE: My Lord, yes. But, in our submission, based on that letter, the claimants could not have proceeded, so they had an unopposed agreement to extend the time.
156. But, in any event, my Lord, what this effectively amounts to by the claimant is a plea that, notwithstanding her various defaults in terms of serving the proceedings and the late service of evidence, those sorts of defaults, her plea in that, not only should she not have to pay the costs of making the application before the court, absent those consents from the other parties, but that she should get her costs for doing so. In my submission--
157. MR JUSTICE TURNER: She accepts that she should pay her own costs of issuing the application, but contends that the costs of pursuing that application, once issued, should be paid by someone.
158. MR VILLAGE: Yes.
159. MR JUSTICE TURNER: She says, in the first place, by you, that you actually opposed it, and I do not understand that she has yet made an application against the first or second defendants, either in the alternative or additionally.
160. MR VILLAGE: Well, it would be wholly unfair, in my submission, if it was to be made solely by my clients and not against other defendants. But, in any event, we, because so far as the City Council, for example, is concerned --
161. MR JUSTICE TURNER: But if, and to the extent that, you may be successful in saying that you should not alone be responsible for the hearing costs of that application, how am I to deal with those in the absence of the second defendants? The only practical way, as it suggests itself to me, is that I should make the order as I consider just, leaving it for the second defendants to come in within 21 days, or whatever it may be, if they are not content with it.
162. MR VILLAGE: My Lord, that may be a way through it, but, in any event, my Lord, my primary submission would be that no order for costs should be made. That would be the fair and just order of ...
163. MR JUSTICE TURNER: Of the hearing costs.
164. MR VILLAGE: ... of the hearing costs. That would be the fair and just order given the way this is eventuated; the what I might - I am sorry to use the word again - the 'reprehensible' conduct of the claimant's solicitors, and her own conduct in failing to explain adequately to the court why she was late. So it would be fair and just that those costs be borne (her own costs) by herself. But to do otherwise would be, effectively, to punish the third defendant in this case, and I say that would be unfair.
165. MR JUSTICE TURNER: But it would not be unfair if all the defendants paid?
166. MR VILLAGE: Well, my Lord, I say that, if all the defendants are going to pay -- if there is going to be an order made in the claimant's favour, then it ought to be all the defendants, given that none of them were prepared to consent, and that the claimant would have had to have come before the court to seek that consent.
167. My Lord, the final matter relates to costs in respect of the college's application for security, and, again, I simply say that, in respect of that, the college is the innocent party. It is a matter entirely for the court, given the way these proceedings have eventuated and the default of the claimant. I do say, my Lord --
168. MR JUSTICE TURNER: You never hit first base on that application, Mr Village.
169. MR VILLAGE: Well, my Lord, I appreciate that that is an uphill task I have, my Lord.
170. MR JUSTICE TURNER: Well, I think we can -- is there any more you want to add?
171. MR VILLAGE: I do not need to add any more.
172. MR JUSTICE TURNER: Well, we will deal with that last point first, and say that the costs of the application for security shall be the claimant's; that is the easy part.
173. Now, Mr Bedford, why did not the Treasury Solicitor do as he finally did ...
174. MR BEDFORD: My Lord, the --
175. MR JUSTICE TURNER: ... and bear the consequences of not having done so?
176. MR BEDFORD: Well, my Lord, dealing with that point first, and then dealing with my learned friend's submissions, the initial response, which your Lordship will see from the chronology, was written on the very same day, was provided by the Treasury Solicitor without, it can be said, having the benefit of further advice.
177. MR JUSTICE TURNER: But, forgive me, it is the simplest thing in the world for him to say "I must take instructions", but he did not.
178. MR BEDFORD: No, my Lord. Your Lordship has read the terms of the letter that was put to the Treasury Solicitor, the letter of 11th December, asking for a response as soon as possible. The Treasury Solicitor provided that response. It has to be accepted that it was not a complete response to the point, because there was a confusion between the understandable reluctance of the Secretary of State to say anything which could be seen as supplementing the reasons in the decision letter, because, clearly, that would be irrelevant, and the authorities make it quite clear that it is inappropriate for a --
179. MR JUSTICE TURNER: You may take it that I am familiar with that line of authority.
180. MR BEDFORD: Indeed. That was the concern that the Treasury Solicitor had identified.
181. MR JUSTICE TURNER: But this was not asking for reasons to be supplemented, but a simple statement of fact.
182. MR BEDFORD: My Lord, when one subjects it to further analysis, one can see that there is a distinction between the situation of supplementary reasons and the position of asking an answer to the factual question.
183. My Lord, it was of the appreciation of that distinction that the answers were then given, but that was a matter which the Treasury Solicitor did not immediately appreciate, and was appreciated within a relatively short time; as I say, eight days from the first letter of 11th December, to the substantive response on 19th December. So, my Lord, that is the explanation; the explanation is simply that an initial response was given on a point of law which, whilst your Lordship (and it may be that others) would say in the light of, as it were, easy reflection, the point should have been obvious. In my submission, it is not quite that simple.
184. There is clearly a tension between the two circumstances, supplementing reasons, on the one hand, and dealing with the factual query in relation to what was in the decision-maker's mind, and that point, when it was appreciated, which was appreciated fairly soon after the event, was then altered.
185. My Lord, there is a second point --
186. MR JUSTICE TURNER: If we go to page 155 and look at the prepenultimate paragraph which includes the two indented questions ...
187. MR BEDFORD: The first question has clearly altered.
188. MR JUSTICE TURNER: ... I am finding it hard, at the moment, to understand how either of those questions raised any question of law at all.
189. MR BEDFORD: Well, my Lord, the first question was answered in the first paragraph at page 157: "I can confirm that the Secretary of State received a copy of the Environmental Statement prior to the inquiry to consider the application." The second question: "Did the... ?"
190. MR JUSTICE TURNER: That might be thought to be an evasive answer.
191. MR BEDFORD: Well, my Lord, it was trying to alter the factual point. The second question does raise -- whilst a distinction can be drawn between answering that question for the purposes of complying with the duty in Regulation 3(2) of the 1999 Regulations and answering the question for the separate purpose of saying: did the decision-maker take into account or not take into account a material consideration? Because, clearly, that second matter, to answer that question, would involve the decision-maker supplementing the reasons in his decision, because, clearly, if the challenge - if one was dealing with it on the basis that the decision-maker failed to take into account a material consideration, it would be no answer in the context of there having to be a report which gives reasons for the decision - it would be no answer for the decision-maker to come along and say, "Well, here is a witness statement saying I did take into account that material consideration. The fact that I have not mentioned it is neither here nor there." So, my Lord, there was legitimately --
192. MR JUSTICE TURNER: But the fact that he had mentioned it was, both here and there ...
193. MR BEDFORD: Well, my Lord --
194. MR JUSTICE TURNER: ... in the sense that he was required by the Regulations so to state.
195. MR BEDFORD: Yes. Because in this particular case, one was not dealing with a normal - if I can call it that - a normal material consideration under section 70(2). One was dealing with a very particular statutory duty set out in Regulation 3(2), and, my Lord, the analysis that the Treasury Solicitor put forward had confused those two situations. But, in my submission, given the particular circumstances, it was an understandable confusion at the outset where what was being put was "This is urgent. Provide an immediate response." A response was provided which was, to an extent, off-beam, but, my Lord, that is not, as it were, a part of my learned friend's application, and nor, in my submission, should it be seen as such.
196. My Lord, there is a separate point which also relates to this matter, which is that, even when one has appreciated that the legal position is that this is a question which could be asked and answered, it is immediately obvious, in my submission, that the Treasury Solicitor does not have the answer to that at his fingertips, because it clearly involves making enquiries within the relevant department as to the machinery of the decision-making to ascertain precisely what went on, so as to be able to provide an answer if it was decided that it would appropriate to provide that answer. My Lord, clearly, that would have taken time in any event, so it is not a matter that could have been altered on 11th December.
197. There was an investigation, there was indeed a conference with me in the intervening period, which then led to the production, on 19th December, of the reply in terms of the request for further information setting out the response that was given. My Lord, I have already made the point that that was only eight days after the point was first raised by my learned friend.
198. But, my Lord, can I go back a stage - because I have obviously sought to deal with your Lordship's question first - and deal with my learned friend's applications in the order in which he has set those out?
199. The first application that my learned friend, Mr Village, makes against the Secretary of State, is his costs of dealing with the challenge - if I can call it that - up to the 11th December letter. My Lord, the first point - if I can just take your Lordship into my learned friend's bundle - at page 225 (a letter of 21st January 2002), in the third paragraph, my Lord, the only point I observe is that this is the intimation of my learned friend's oral submissions to your Lordship just now.
200. My Lord, the third paragraph of that letter - this was the previous basis on which the third defendant had indicated it was seeking costs against the Secretary of State, and my learned friend has now expanded his applications in the way that he has this morning - but that was the first intimation that these new applications were being made. My Lord, I simply identify that in terms of the chronology.
201. My Lord, if one then goes on to deal with the merits of my learned friend's application, my Lord, if one steps back from this, this is a section 288 challenge which, in the event, the decision in it is to be quashed due to error of law.
202. Now, had this matter gone to full trial and the outcome had been that outcome, my learned friend would not have been, as the second defendant (third defendant in these circumstances) would not have been in any position to seek its costs against the claimant nor even, unless he has been able to show that it could overcome the Bolton hurdle, even if the application had been dismissed at the substantive stage.
203. My Lord, in my submission, for the third defendant to seek to recover its costs of unsuccessfully resisting an application by the claimant from another unsuccessful defendant, is not a basis upon which costs ought properly to be awarded. The position of the third defendant is that it takes its own decision as to whether to be involved in the proceedings and it takes its own decision as to the incurring of appropriate costs, and if it incurs those costs and it turns out that it is not successful, then it simply bears its costs itself. My Lord, that is what, in my submission, would be the normal approach to this matter.
204. This case, in my submission, contains no features, in relation to my learned friend's first application, that would lead to a departure from that. The fact that the error of law is, of course, an error by the decision-maker, well, my Lord, that is always the case; if the decision is quashed, the decision is quashed because the decision-maker has gone wrong in law. So, although my learned friend makes, as it were, a jury point - if I can call it that - in terms of, "Well, it's laying on the Secretary of State's desk and he did not read it," my Lord, it is no more --
205. MR JUSTICE TURNER: Well, as he made that particular submission, I registered: "Is this an appeal to my head or my heart?"
206. MR BEDFORD: Well, my Lord, your Lordship has already seen the point, but, my Lord, as I say, in relation to my learned friend's first application, the point is that there was an application which has succeeded, my learned friend was one of the unsuccessful defendants; my learned friend should pay his own costs in relation to that.
207. My Lord, my learned friend then - dealing beyond the costs of 11th December - secondly dealt with costs after 14th January 2002, which is after the third defendant indicated it was prepared to submit to judgment, up until today. My Lord, my learned friend seeks those costs against the Secretary of State.
208. My Lord, in my submission, that is a wholly misconceived understanding of the correspondence and the reasons why it was not possible in the event for there to be an agreed order to put before the court that the parties could have all signed to and invite the court then, in the exercise of its jurisdiction, to quash on the basis of the parties had agreed what the defect was.
209. My Lord, the position on the chronology: 18th December 2001, the Treasury Solicitor wrote to both parties indicating that it was disposed to consent to judgment; as your Lordship pointed out, submit to judgment would be more apposite, on the basis --
210. MR JUSTICE TURNER: Less accurately. In public law jurisdiction, it is not open to a party to submit to judgment. He may not oppose judgment being entered against him. But it is quite potentially an important distinction.
211. MR BEDFORD: Well, my Lord, certainly on 18th December, the Secretary of State intimated he would not oppose judgment being entered against him, on the basis that there had been non-compliance with the requirements of the Environmental Assessment regime, and that was to both parties. There was then, between the first defendant and the third defendant, discussion as to the terms of a draft consent order - if I can call it that - at that stage, and it was a consent order produced by the first defendant, and submitted to the third defendant for comment.
212. After the hearing before your Lordship on 15th January, the third defendant intimated, for the first time, that it was now prepared to submit to judgment. My Lord, the position then, is that, on 22nd January, the Secretary of State wrote --
213. MR JUSTICE TURNER: Page?
214. MR BEDFORD: My Lord, I apologise; I have the disadvantage of having seeing this bundle about two minutes before your Lordship.
215. MR JUSTICE TURNER: Yes. Somebody will help Mr Bedford out of his difficulties. 22nd January, Secretary of State; 233?
216. MR BEDFORD: Yes, my Lord, it is the final paragraph of 233. This was a revised draft, in fact not in the bundle; there had been, by email and fax, comment passing between the Treasury Solicitor and Stephenson Harwood, for my learned friend's instructing solicitors, on the terms of the draft, and what was achieved by 22nd January was a draft which the Treasury Solicitor understood incorporated all the comments on the draft which had been raised by the third defendant. That was then put to the claimant.
217. My Lord, the correspondence then shows that what happened subsequently is that the claimant did not wish to consent to the draft order; the claimant wanting the terms on which the order was quashed to be widened to refer to other matters which had been identified in correspondence but which did not form any part of the claim form, and so the claimant was indicating an unwillingness at that stage to sign the consent order.
218. There was no issue between the Secretary of State and the college. Whilst that, as it were, was toing and froing between the claimant and the other parties, my learned friend Mr Village's clients, on the 21st, had indicated their application of intention to apply for costs against the Secretary of State, and although there was some further correspondence about that between the two, it is quite clear that that application is going to be maintained.
219. The position then comes, my Lord, and this is page 258 --
220. MR JUSTICE TURNER: 2...?
221. MR BEDFORD: 258. By 14th February the position was that Mr Buxton (for the claimant) had indicated a willingness to sign now the consent order, subject to reserving the position on costs.
222. The Secretary of State was not indicating in any case that he was resigning from the terms on which the consent order would be made, but merely pointing out that, in the circumstances that the parties remained in dispute about the costs, it would not be appropriate to have a consent order, because the matter was going to have to come before your Lordship.
223. Now, so far as my learned friend Mr Village's clients have incurred costs from 14th January to date in dealing with the consent order, those costs do not lie at the door of the Secretary of State. The Secretary of State had produced a draft order and had taken into account the comments of the third defendant, and, as between them, they were agreed as to what the terms of the consent order should be.
224. The only reason why the consent order was not at that stage agreed was (1) the claimant was unwilling to sign it and (2) there was this disagreement about what the costs consequences would be.
225. MR JUSTICE TURNER: What was the substance of this dispute? I am tempted to say "sixpence-ha'penny".
226. MR BEDFORD: Well, my Lord, indeed. One does not know what the thinking of the claimant was behind this, and so far as the cost is concerned, it does not matter. The position is, the Secretary of State had indicated the basis on which he was prepared to not oppose judgment. That has not changed.
227. The only reason why it was not possible to resolve matters (therefore costs were incurred between the parties), was because of quite separate disputes: (1) the claimant's position on wanting the terms of the order widened, and the other (my learned friend's) position of wanting to make application for costs. So, my Lord, in terms of, therefore, the second part of my learned friend's submission, that should have been against the Secretary of State for costs incurred after 14th January, in my submission, that would not be appropriate, and those costs should either fall where they lie - which is usually the third defendant - or an application should be made against another party, by which I would mean the claimant in this circumstance, if my learned friend feels it is a matter so appropriate.
228. My Lord, then I turn to the question of my learned friend's application to recover his costs of making the strike-out and summary judgment applications which he seeks against the Secretary of State.
229. My Lord, here, again, it is necessary to go back into the correspondence. My Lord, page 145, first of all. My Lord, the third paragraph of page 145; this is 7th December, to the claimant.
230. MR JUSTICE TURNER: Yes.
231. MR BEDFORD: My Lord, then page 150 and over to 151, and this was the substantive reply to the claimant, there was an earlier exchange of letters, but this is the substantive reply. Page 151, the second paragraph on page 151 --
232. MR JUSTICE TURNER: "What alerted us..."?
233. MR BEDFORD: Yes.
234. MR JUSTICE TURNER: Yes.
235. MR BEDFORD: My Lord, then page 152; the third defendant to the claimant, 10th December. The next stage, the final paragraph on page 152.
236. MR JUSTICE TURNER: Yes.
237. MR BEDFORD: My Lord, all of that correspondence takes place before we come to page 154, which is the letter of 11th December to the Secretary of State. Your Lordship has already read that letter, so I do not invite your Lordship to read the whole of it again, but I do draw your attention to the third paragraph. The third paragraph, where it is clear that the intention to make the application was already set out, and indeed as the second paragraph indicates, the applications were copied to the Secretary of State at that stage.
238. Then the third -- sorry, the final paragraph on that page, and it is clear from that the college fully appreciated that there was a new point which was being raised, and that new point was precisely --
239. MR JUSTICE TURNER: It is four lines up from the bottom, is it not?
240. MR BEDFORD: It is. It puts precise "...failed to take the ... ... Environment Statement into account..." It was the appreciation of that fact, my Lord - if one goes over on to page 155 - that one sees it in the second paragraph, and then the remaining paragraphs, that my learned friend's clients take the point that it was important, they identify its importance, they then ask their questions. My Lord, it is on that same day (11th December) that the strike-out and summary judgment applications were made.
241. My Lord, your Lordship has then seen the functus letter in the correspondence and then the reply to further information. My Lord, I do not take your Lordship back to those, other than to remind your Lordship the chronologies that, by 19th December a full reply had been given, but, my Lord, that is page 173. I appreciate that it was the second reply for further information, but the substance was clearly set out on page 173 and following.
242. My Lord, in my submission, what follows, in terms of this application that my learned friend now makes, is this: first, in the general position is that an unsuccessful party should not recover the costs of an unsuccessful application. My learned friend's non-pursuit of his application for strike-out and summary judgment puts him in the same position as simply being an unsuccessful party.
243. My Lord, second, a party who makes an application, and particularly, one may say, an interlocutory application which is intended to be a preemptive strike, has the responsibility of ensuring that that is a meritorious application before it is made. It can be seen from the correspondence that the applications my learned friend's clients made were in no way encouraged or supported by what was coming from the Secretary of State, so the decision to make those applications rests solely on the third defendant.
244. My Lord, not material that, but then, when one looks - this is the third point - when one looks at the correspondence, it was precisely clear to the third defendant, and had been appreciated by the third defendant before those applications were made, that there was an arguable point being raised by the claimant, to which it (the third defendant) did not have the answer. Whilst that point remained unresolved, it was almost inevitable that an application for strike-out had no reasonable prospect of success or summary judgment would not succeed. But, my Lord, whilst I entirely accept that it was reasonable for the claimant - sorry, for the third defendant to then ask the questions of the Secretary of State, my Lord, what the claimant should have done was to have obtained the position on that before making this preemptive strike application, which, in the circumstances --
245. MR JUSTICE TURNER: The third defendant.
246. MR BEDFORD: Sorry, I apologise. My Lord, what my learned friend should have done is got the answer to the application so he got the ground clearing knowing that there was this new point, and resolve the new point before making the applications. The applications were premature, knowing, as I say, that there was a point which was fatal to the success of those applications, not having the answer to that.
247. My Lord, I have already identified from the chronology that the position was that they did not even ask the question until 11th December, but made the application on the same day. It is quite clear they were never going to get a full answer in order to make the application at that stage.
248. My Lord, my learned friend says, "Well, of course we had to act quickly, because it was all very urgent". My Lord, the answer to that point is: there was no difficulty, and there was no objection from any party to this matter being expedited so that the substantive challenge could be heard as quickly as possible given the issues that it raised.
249. My Lord, the position that my learned friend saw, it was seen that there would be a tactical advantage in launching the preemptive strike for the knock-out blow (if that was successful). I do not criticise that as a course of action, but, my Lord, I do say that if that in the event does not succeed, the party who has launched that tactical approach simply bears the costs of so doing.
250. My Lord, it would be quite wrong, in my submission, in these circumstances, to visit the costs of that tactical approach on the Secretary of State, who, in these circumstances, in my submission, has acted as reasonably as could have been expected to altering what was, firstly, the point which there was a misapprehension as to the true point of law, and, in my submission, that was an understandable misapprehension. Secondly, and more importantly, it was actually altered eight days afterwards, which, as your Lordship will know, in the circumstances of a government machine, and having to obtain the answer from these within a government department to provide a written answer which sets out the position eight days after request, is, in my submission, an entirely reasonable way of responding to the point. My Lord, that is what I say in relation to my learned friend's application in relation to his strike-out costs.
251. My Lord, I do not say anything directly at this stage in relation to my learned friend's reasons for not wishing to pay the claimant's costs in relation to the unsuccessful strike-out application, because my learned friend, Mr McCracken, does not make an application against me, and so, in these circumstances, I do not respond to that. Although I note that my learned friend is saying, "Well, it should be split between the three of us," since that is not an application which is being made, I do not respond to it.
252. Then my learned friend seeks to deal with the costs of the extension of time and the application for security. My Lord, I will just check my notes. I do not understand my learned friend makes those applications against me.
253. MR JUSTICE TURNER: Well, I have dealt with that; the security.
254. MR BEDFORD: Yes, indeed your Lordship has. So far as the extension of time, no, again my learned friend does not make that application against me, so I do not need to say anything further.
255. My Lord, those are my submissions.
256. MR JUSTICE TURNER: Thank you very much.
257. MR McCRACKEN: My Lord, I have got eight points to make, and two are documents not included. The --
258. MR JUSTICE TURNER: Could you just wait one moment?
259. MR McCRACKEN: Of course, my Lord.
260. MR JUSTICE TURNER: Yes?
261. MR McCRACKEN: My Lord, my first point is this: whatever sympathy the court may feel for the predicament in which Mr Village's clients found themselves as a result of the Secretary of State's mistake, Mr Village's clients were under a duty to mitigate their loss, rather than to aggravate their loss, by making unsuccessful interlocutory applications, and there is no reason why CPR 44(3)(2)(a) should not apply.
262. Second, my Lord, your Lordship indicated --
263. MR JUSTICE TURNER: Do we look at that?
264. MR McCRACKEN: It is the provision that says: "If the court decides to make an order about costs, the general rule is that the unsuccessful party would be ordered to pay the costs of the successful party."
265. MR JUSTICE TURNER: Yes.
266. MR McCRACKEN: My Lord, the second point that I make is this: your Lordship observed that Mr Village's objections to this application for an extension of time did not come close to dislodging the court's obligation to remedy the non-compliance with the directive.
267. The third point is that 44(3)(4), at page 800 of the Spring 2001 edition of the White Book - perhaps in a different page in your Lordship's volume - but 44(3)(4)(a) provides: "Relevant to decision as to costs are the conduct of the parties" and 44(3)(5) expands on that. There are two elements of the conduct of the third defendant in relation to the interlocutory applications that, in my submission, ought perhaps to be determinative, both in relation to the application and in relation to Mr Village's attempt to deflect off the burden that ought to fall upon his clients, on to the Treasury Solicitor.
268. Your Lordship will recollect that, during the interlocutory hearings, I drew your Lordship's attention to CPR 24(4)(3), which provides that fourteen days' notice should be given at strike-outs. Your Lordship will remember that I spent some time drawing attention to the failure of the third defendants to comply with that requirement.
269. Now, my Lord, one of the letters to which your Lordship's attention was drawn during the hearing, was the letter of 13th December from Mr Buxton to the third defendants.
270. MR JUSTICE TURNER: Not in the extracted bundle?
271. MR McCRACKEN: I don't think it is, my Lord. But it is at page 10 of bundle B, that is the Stephenson Harwood's correspondence bundle. It is a letter dated 13th December from Richard Buxton. It is the third paragraph that is important at present: "We are copying this letter to the court. We trust, in the circumstances, you will write to the court confirming your agreement to have the matter stood out of the list for 20th December."
272. The third defendants not only failed to give fourteen days' notice, as required by the rules, but also were specifically invited to have the matter stood out of the list. About eight pages further on in the same bundle (Bundle B), there is a letter which expresses a sentiment that is most regrettable and not consistent with the spirit of the rules, from Stephenson Harwood, where they are, in the third paragraph --
273. MR JUSTICE TURNER: Which letter?
274. MR McCRACKEN: It is the letter of 13th December 2001, my Lord, from Stephenson Harwood.
275. MR JUSTICE TURNER: Page 20?
276. MR McCRACKEN: Page 18, my Lord. I am sorry. Page 18 of Bundle B.
277. MR JUSTICE TURNER: Where I have sidelined the prepenultimate paragraph.
278. MR McCRACKEN: My Lord, yes. That was one that -- it is the ante-prepenultimate and prepenultimate lines in that paragraph.
279. My Lord, this particular part of the correspondence is especially important in explaining why it is I make an application exclusively against the third and not also against the second -- the first defendant in relation to the interlocutory applications.
280. Had the third defendant been willing to stand the application out of the list, had the third defendant been willing to comply with the rules that requires that there should be fourteen days' notice, and had the third defendant been interested in our views on the application for security for costs, the costs that were thrown away on those interlocutory applications would not have been thrown away.
281. Now, at this stage it is important to draw your Lordship's attention to a letter, not included, I think, in Mr Village's bundle, but which is found at page 26 of the bundle that Mr Buxton handed up a moment ago, and it is a letter of 14th February of this year from Stephenson Harwood.
282. MR JUSTICE TURNER: Sorry, page?
283. MR McCRACKEN: 26, my Lord, of Mr Buxton's bundle. I hope your Lordship has it. It is 14th February 2002, and it is marked "Without prejudice (save as to costs)."
284. MR JUSTICE TURNER: Yes.
285. MR McCRACKEN: My Lord, if your Lordship turns to page 26, there are three numbered paragraphs at the foot of the page, and the college expresses this view, three lines down in paragraph 1: "The college would have terminated its preparations to the making of that application immediately upon receiving the information from the Secretary of State," which it eventually received on 19th December 2001. So what Mr Village's clients are saying there is that, once they got the answer to the information that they had sought from the Secretary of State, they would not have pursued their application to strike out or for security of costs, but, of course, the reason they did not have that information until the day before the hearing actually took place of the interlocutory applications is because of their own failure to comply with the requirement that there should be fourteen days' notice of an application to strike out, and their unwillingness to listen to what my client had to say about the wisdom of proceeding on that date.
286. In relation to the concerns expressed by Mr Village about the time that was spent - perhaps the sixpence-ha'penny - a thruppence worth of that sixpence-ha'penny may be explained by looking at pages 12 and 13 of Mr Buxton's bundle. It is apparent from his letter of 1st February --
287. MR JUSTICE TURNER: Wait one moment.
288. MR McCRACKEN: I am sorry, my Lord. It is a letter from him of 1st February, to Stephenson Harwood. It starts on page 12 of his bundle. Again it is headed "Without prejudice (save as to costs)." Perhaps just a couple of points that I would direct your Lordship's attention to.
289. MR JUSTICE TURNER: Yes.
290. MR McCRACKEN: On page 13 (the second page), the second paragraph makes it clear that Mr Buxton was proposing an agreement whereby the third defendants and the Secretary of State would pay Mr Buxton's costs of a full basis but without any uplift, in other words without the 100% uplift.
291. In the penultimate paragraph your Lordship will see that Mr Buxton was agreeing to the consent order. In other words, 1st February was the date when he was happy to settle, as it were, on the basis of the terms that were available so far as the substantive order was concerned.
292. MR JUSTICE TURNER: Yes.
293. MR McCRACKEN: The fifth point, my Lord, is that, so far as Mr Village's suggestion that the order has been quashed, as it were, on a new basis that was not within the original pleadings, if your Lordship turns to Bundle A, which is the original court documents --
294. MR JUSTICE TURNER: The original claimant's bundle?
295. MR McCRACKEN: It is actually Stephenson Harwood's Bundle A for their interlocutory applications. It has got a blue cover with an 'A' on it, or my version has a blue cover with an 'A'.
296. MR JUSTICE TURNER: Well, I have ...
297. MR McCRACKEN: I think it may be that one, my Lord, yes.
298. MR JUSTICE TURNER: Yes.
299. MR McCRACKEN: My Lord, page 2, paragraph 5.1 of the grounds for challenge, there is a broad pleading that "the Secretary of State failed to comply with the requirements" --
300. MR JUSTICE TURNER: Just one moment. Page 2?
301. MR McCRACKEN: Paragraph 5.1, my Lord.
302. MR JUSTICE TURNER: "...failed to comply with the requirements."
303. MR McCRACKEN: Yes. Then paragraph 11. I do not think you have been taken to paragraph 11, which is important, on page 4: "The Secretary of State" --
304. MR JUSTICE TURNER: Well, the funny thing is, I lined it when you first referred it to me and when Mr Village referred me to it.
305. MR McCRACKEN: Then your Lordship has been taken to it, and twice. In that case, I can - perhaps adopting Mr Village's words - express a little bit of a surprise that he has put some of his submissions in the way that he has, because it is very clear that, in paragraph 11, one of the pleadings is that "there was no consideration in the Environmental Statement in the decision letter of the Inspector's report." So, so far as the pleadings were concerned, they do appear to have encompassed the very point that is now the subject of the concession.
306. My Lord, the sixth point is this: so far as the application to strike out, Mr Village conceded at the beginning of the day of the interlocutory hearings that he could not succeed on the strike-out, and, therefore, he abandoned it. But, in my submission, where somebody abandons a claim right at the outset in the way that Mr Village did, those are the very circumstances where it is most appropriate to make an exemption to the general rule that the losing party pays the costs of the winning party.
307. The seventh point, my Lord, is the suggestion, by Mr Village, that either the second defendant or the first defendant are really as much responsible for the time that the court had to spend and the energy that the parties had to spend on the interlocutory applications. This is a submission which can only be made forensically; it has no grounding, in reality.
308. Mr Bedford's client's position was one of neutrality: they were not seeking to prevent our application from being successful; on the other hand, they were trying to make life difficult for Mr Village's clients. They were in a genuinely neutral position, and in those circumstances, had Mr Village's clients not been objecting, there is no reason to suppose that Mr Bedford's clients would have made us come to court and fight for the extension of time.
309. So far as the Council is concerned, their position is not one perhaps that will attract much praise for courage, but they should, at least, have the reward of their discretion, which is that they just did not want to get involved and did not want to expose themselves to costs. Technically, they did not consent to our application for extension. There is no indication that, had Mr Village not been battling, that they would themselves have come along and actually put forward arguments against us. So, in my submission, the appropriate defendant to pay our costs is the third defendant, who is, in substance and reality, the one who made us come to court.
310. My Lord, I have said I had made eight points; I find that I only have seven points now. I hope that --
311. MR JUSTICE TURNER: I will bear that with the fortitude required of me.
312. MR VILLAGE: My Lord, reverting, as it were, to the agenda, the first question relates to the costs of the college incurred in dealing with the claim both before 11th December and after 14th January.
313. My Lord, Mr Bedford, himself, effectively answers why it is that my clients should have their costs: they had a wholly separate interest to that of the Secretary of State. My Lord, the liability in this case (the fault) lies at the door of the Secretary of State (the first defendant).
314. MR JUSTICE TURNER: In the old days, that would have been called the causa sine qua non, what I think what we remain in court is in seeking to argue that that was the causa causans.
315. MR VILLAGE: Well, it was the causa causans, my Lord. But, in my submission, there is no reason at all why another defendant should not similarly obtain its costs through a fault of another party to proceedings, which is precisely the situation in this case. The fault is, it is not a -- one has to look at the gravity of the fault, the fault effectively, and I hope - not addressing a jury - but the fault is an astonishing blunder by the Secretary of State, which, in my experience, I have never come across.
316. My Lord, we plainly had a separate interest to be protected and have had to be involved in the proceedings in drawing up the order since 14th January.
317. Could I just show you some of the difficulties that we have had since that date? If we turn to the third defendant's bundle, put in this morning, it is on, my Lord, 228. The draft consent order was sent by the Secretary of State to the parties on 22nd January, under cover of letter of 22nd January (page 233). What then happened was that Mr Buxton (page 234) started querying it. The third paragraph on page 234:
"More substantively we are concerned that the particulars set, whether in the form originally drafted by you or proposed amended by the college, do not deal properly with the deficiencies in the environmental assessment process."
318. Then it goes on to identify a whole host of new points never made before.
319. Page 235:
"The Secretary of State's decision as to how the matter should proceed following the quashing of his decision is likely to be affected by his views on these points. As you know, the way the claim developed is that some of these points were not originally pleaded, so that, if the matter were to progress, it would be necessary to make appropriate amendments."
320. So, my Lord, of course, whilst they did see the light of day in some witness statements, they were pleaded. "If we are to proceed" - it goes on - "by way of a consent order, it will be necessary to make substantial amendments to the particulars to reflect these points."
"We cannot advise our clients to dispose of the matter merely on the terms of the consent order as presently drafted."
321. The reply from the Secretary of State (236) is:
"... these points were not originally pleaded, and that it is necessary to make substantial amendments to the draft consent order" --
322. MR JUSTICE TURNER: Well, that is merely a recitation of what Mr Buxton has been saying.
323. MR VILLAGE: Yes.
"As you rightly acknowledge, the matters which you now wish to be included in the draft consent order are entirely absent from your client's particulars of claim. Quite apart from this serious omission, I do not consider it either appropriate or necessary for the consent order to include reference to the same."
"Please confirm" - at the end "as a matter of urgency that you agree the revised draft consent order."
324. We also write on 28th January. We associated ourselves with the comments of the Treasury Solicitor.
325. What we then have from Richard Buxton, on 1st February, is effectively some points on costs, and --
326. MR JUSTICE TURNER: Forgive me, but where are you heading at the moment?
327. MR VILLAGE: I am just indicating that there were a number of costs, a substantial number of costs incurred since 14th January.
328. MR JUSTICE TURNER: Well, these may be described as 'letter writing costs'.
329. MR VILLAGE: My Lord, yes, they may be. They would accurately be described as 'letter writing costs'. Advice was taken, in terms of the draft order of consent and so on, so they were, I think, there was some advice --
330. MR JUSTICE TURNER: Has there finally been agreement as to the terms of that consent ...
331. MR VILLAGE: No.
332. MR JUSTICE TURNER: ... subject to the court's order?
333. MR VILLAGE: No.
334. MR JUSTICE TURNER: So we have further argument to come on that.
335. MR VILLAGE: No, my Lord, there is no further argument to come. I am just identifying these are the costs that Mr Buxton describes as a 'wrap-up costs' which - we say - are, so far as the third defendants are concerned, he seeks those against the first defendant because of his liability under the terms of the fault that he has accepted in the decision-making process.
336. MR JUSTICE TURNER: Forgive me, Mr Village, but what is the sort of magnitude of what we are discussing at the moment?
337. MR VILLAGE: My Lord, I have got some indications. My Lord, we think that they amount to some £3,140, but that is just since 14th January.
338. MR JUSTICE TURNER: How many letters ...
339. MR VILLAGE: My Lord...
340. MR JUSTICE TURNER: ...in and out, as they used to be described?
341. MR VILLAGE: Would you like to see?
342. MR JUSTICE TURNER: I would just like an answer to my question: how many letters in and how many letters out?
343. MR VILLAGE: My Lord, I do not have the number of letters written. What I am told is that it identifies the numbers of hours spent by solicitors and others.
344. MR JUSTICE TURNER: Well, give me an hours figure? Principal solicitor? Assistant solicitor?
345. MR VILLAGE: Attendances on clients: actual attendance, 24 minutes; anticipated time, 30 minutes. Telephone attendance on the claimant: 1-hour-42 minutes; anticipated further time, 30 minutes. Attended on counsel: 1-hour-18-minutes; anticipated time 30 minutes. Work done on documents: solicitor, two hours; trainee solicitor, 1 hour; cost draftsman, 30 minutes. Anticipated time for preparation for hearing on 19th February, two hours; trainee solicitors, 2 hours, including travelling and waiting. Counsel fees --
346. MR JUSTICE TURNER: Do not embarrass yourself about that.
347. MR VILLAGE: Proportion given. So my Lord -- and a fairly small proportion, I think. So, my Lord, we are not asking -- these are not theoretical. I know they are not tiny; they are significant costs.
348. So, my Lord, in relation to Mr Bedford's points, we do not accept that we did not have a separate interest, and we, therefore, seek a costs order against his client both before 11th December and after 14th January. As he, I think, accepts, by what he submitted to you, that my clients would be entitled to their success -- their costs in successfully defeating a challenge, where the Secretary of State was also represented, if separate interests could be identified - that is the Bolton case in the House of Lords, my Lord - we say that, clearly, there is, where the Secretary of State and the third defendant are not ad idem, there clearly was a separate interest in the case.
349. MR JUSTICE TURNER: I can see an argument for you recovering costs against the Secretary of State of investigating and coming to a conclusion whether or not you should resist the claimant's claim on the basis that it was due to shortcomings in the original decision in the decision letter which put you in that position, but having once past the point what would have been called a locus poenitentiae, then a different result.
350. MR VILLAGE: Well, that is why I take them to 11th December, because at that stage we embarked on a different course, and those are the subject of separate submissions. But after 14th January, we say that those costs thereafter fall into a similar category as the ones before, given that they are, effectively, costs wrapping up the terms of the order. And for whatever reason Mr Buxton would not agree, as my Lord has seen the terms of the order, was effectively seeking to get costs agreed as a price of us then entering into the consent order, and then, more recently, the Secretary of State, for whatever reason, decided he was not going to sign the consent order, but it all necessitated coming in front of my Lord to actually get the order quashing the decision.
351. MR JUSTICE TURNER: Yes.
352. MR VILLAGE: My Lord, the second -- the next matter was, I think the third item on the agenda was the costs of the summary judgment and the strike-out. The point made against me is, "Well, this is a premature application without having checked all the facts."
353. My Lord, I have specifically confined the costs, not -- they are not too wide-ranging in general; they are costs since 11th December. The reason they are confined from 11th December is because it is from that date that the Secretary of State had the opportunity to tell us "Yes" or "No": did he have regard to - not a matter of law - was it in fact read, did he have regard to the Environmental Statement? The Secretary of State chose not to answer that.
354. We wrote again on 12th December, and Mr Bedford says, "Oh well, they then received a response six days later (18th December)." That is simply wrong. In fact, it was wrong in this -- seriously wrong, because the reply that we received was not to the 12th December letter, or indeed the 11th December letter; the reply we received was to a further request made for information made on 18th December, when we heard - and were shocked to hear - that the Secretary of State was proposing to submit to judgment. So it is completely wrong to suggest that there was a response given in response -- response given in our letter of 12th December; the response that was to a request for information made on 18th December.
355. Mr Bedford also seeks to say that, of course, his client had to take instructions. My Lord, it would have been the easiest thing in the world to say, "Hang on, college, do not make your application yet. I have got to take instructions." He did not say that, the writer did not say that. Of course, Mr Buxton wrote to us, I think on 15th December, saying, "Look, why don't you get this adjourned?" We had not had any -- there was no suggestion --
356. MR JUSTICE TURNER: I suppose it might be said against you that you decided, somewhat precipitately, to issue these applications not knowing the full facts.
357. MR VILLAGE: Well, my Lord, we decided to issue the proceedings because, first of all, what was agreed to be - and has been agreed to have been throughout these proceedings - urgency.
358. Now it is said that, "Well, you could have just waited for the matters to be expedited." In this case, we actually know what the expedition meant; it meant a hearing in March, so a considerable wait for my clients. There was great urgency which everyone accepted. That is the first submission I would make.
359. But, secondly, in so far as the litigation should be cards face up on the table, we simply identify the point which seemed to us to go to the very heart of the case, which was: did or did he not have regard to the Environmental Statement?
360. Now, as to that, my Lord, it is a very simple question - "Yes" or "No" - did he read it? We never actually got a completely straight answer to that. But, my Lord, what we did get was sufficient for us to realise that a case for summary judgment or strike-out would not succeed, and there was no reason why that could not have been given on 11th December, when he immediately wrote back to us pursuant to our request.
361. MR JUSTICE TURNER: Supposing he had written back, as, on one view, he ought to have written back, "I need time to take instructions"?
362. MR VILLAGE: Well, that would have alerted us to a potential problem, and I do not know what view my clients would have taken, but he did not. We simply did not know.
363. We wrote back on the 12th saying, "Come on, the court is going to ask you this." In the CPR world (post-Woolf reform world) parties to litigation should not effectively hide behind non-existence and legal tags such as functus officio, when, in truth --
364. MR JUSTICE TURNER: Well, it is illegitimate anyway post-Woolf.
365. MR VILLAGE: My Lord, yes.
366. MR JUSTICE TURNER: But that is not a point of substance.
367. MR VILLAGE: My Lord, what I say is, why, after 11th December, clearly this was a point that had to be dealt with, and we required a response. We got one immediately on 11th December. It was not saying, "Please let me take instructions"; it was, "This is our response." We plied on the 12th. We did not get a response to the letter of the 12th. The next thing that happened was, there was a submission to the judgment, and we then made the request for information.
368. MR JUSTICE TURNER: Just remind me of the date when the Treasury Solicitor indicated that he would submit to judgment?
369. MR VILLAGE: 18th December.
370. MR JUSTICE TURNER: The writing was on the wall by then.
371. MR VILLAGE: The writing was on the wall by then, and so, therefore, we immediately made the request for information formally to make our own judgment, and we got the response the following day.
372. May I just mention this, my Lord? It is said by my learned friend, "Oh well, you know, we did very well to get the response within six days." Well, I have explained that it was not a response in six days; it was a response actually in one day to our request made on 18th December. But may I just remind my Lord of the time-scales, the tight time-scales there are in cases of this kind, in rules of Supreme Court Order 94, rule 3?
373. MR JUSTICE TURNER: I think we have referred to this already this morning, well, some of us have.
374. MR VILLAGE: We have, my Lord, but not this particular paragraph. The response --
375. MR JUSTICE TURNER: Just one moment. Yes?
376. MR VILLAGE: The response, under the Order 94, rule 3, by the Secretary of State (or respondent) has to be filed in the Crown Office 21 days after the service of the applicant's written statement or affidavit. So, generally speaking, my Lord, the onus really is for the Secretary of State to move very fast and decide what his case is.
377. MR JUSTICE TURNER: Yes. And the ordinary period of notice for an application for summary judgment is what?
378. MR VILLAGE: My Lord...
379. MR JUSTICE TURNER: Mr McCracken knows.
380. MR VILLAGE: It is said to be fourteen days, my Lord. But I have to say that, if this point was not taken (that is to say the lack of notice) by the claimant or anyone on the claimant's behalf at the time --
381. MR JUSTICE TURNER: Mr McCracken has been complaining about it ever since.
382. MR VILLAGE: He has been complaining about it ever since, but Mr McCracken has, no one else has - not his solicitor, not Mr Buxton, who is not shy.
383. MR JUSTICE TURNER: Well, he may have thought that it did not lie very well in his mouth.
384. MR VILLAGE: Well, my Lord, he may have thought, but it certainly was not a matter that --
385. MR JUSTICE TURNER: And he might have been right if he thought that.
386. MR VILLAGE: It may well be, my Lord, that if it does not lie in his mouth, it does not lie in my learned friend's mouth on his behalf. But can I, finally --
387. MR JUSTICE TURNER: The point is that, if you waited your fourteen days between issue of your notice and the application coming on for hearing, the fourteen days would comfortably have taken into account receipt of a definitive answer from the Secretary of State?
388. MR VILLAGE: Well, my Lord, it would not have done, because it was, of course, as correspondence: 11 December letter; reply 11th December from the Treasury Solicitor; we respond on 12th December; no answer - never an answer - to that letter, we have never received one. It was only until the request for further information was precipitated by the Secretary of State's indication of submission to judgment on 18th December.
389. MR JUSTICE TURNER: Yes.
390. MR VILLAGE: My learned friend Mr McCracken's submissions, my Lord, he refers to a letter of Mr Buxton saying, "Well, your claim is clearly unmeritorious." My Lord, could I just ask you to turn to the pleadings, which are in Bundle A?
391. MR JUSTICE TURNER: Yes.
392. MR VILLAGE: Paragraph 5 identifies the basis upon which it is said the Secretary of State's decision (inaudible) grant was unlawful, but the factual basis for it is set out in paragraph 8: "In the present case," page 5, "the local planning authority (Canterbury City Council) advises it considered the proposals to the EIA development, though, after discussion with the developer, matters were left on the unlawful basis that an informal Environment Statement would be provided. This was not treated in law by the local planning authority as An Environment statement under the Environmental Impact Assessment regime." So it is for that reason that the submission is made, or the plea is made at paragraph 11 that the Secretary of State has not complied with the requirements of the regulations; there is no consideration of an Environmental Statement. It was precisely that point that my clients attacked in the application for summary judgment and strike-out. It was a completely erroneous point.
393. MR JUSTICE TURNER: I am not sure that you can take that very far, Mr Village. If you read on:
"The Secretary of State had the opportunity to cure this error, but he failed to do so."
394. And he did both: have the opportunity and failed to do so.
395. MR VILLAGE: Yes. But it was clearly predicated on the basis of the error being a failure to produce an environmental statement at all. I mean, we knew that, firstly, an Environmental Statement had been produced by my clients, secondly, it had been sent to the Secretary of State. So we knew that there was no question of the Secretary of State having to correct it, because he already had it.
396. MR JUSTICE TURNER: In those circumstances, you were only left with one conceivable hypothesis.
397. MR VILLAGE: He had not read it.
398. MR JUSTICE TURNER: Yes.
399. MR VILLAGE: And that is what we asked of the Treasury Solicitor, and we got a brush-off.
400. MR JUSTICE TURNER: That is why you may be entitled to some costs. The question at issue at the moment is: how much?
401. MR VILLAGE: My Lord, then could I, just finally, I think, my Lord, in respect of the costs of the claimant's application for an extension of time, I say no more, other than to observe that it is not for one party to agree a waiver of the rules. If that party does agree a waiver of the rules and the other parties do not accept it, then the matter has to come before the court for determination.
402. In this case, there was no agreement by any defendant to waive the rules in relation to the extension of time. The fact that my clients are here and have spent considerable costs themselves in being represented, perhaps makes it less fair and less likely that the court should exercise its discretion in making them pay all the costs of the extension of time given that there were other parties who similarly would not grant their consent.
403. My Lord, those are my submissions.
404. MR JUSTICE TURNER: Yes, I will give my ruling at 2.15.
(The short adjournment.)
405. MR JUSTICE TURNER: Following the disposal of the interlocutory applications and, in the event, the substantive application made by the claimants, there are now applications for costs.
406. It is a matter of singular regret that proceedings, which were in their nature interlocutory, generated no less than seven or eight lever arch files of documents of one kind or another. It only emerged after a day of argument, on 18th December, that the reality of the position was that there should have been before the court a formal application by the claimant for extensions of time for service of the proceedings on the various defendants, as well as a separate application for extension of time for service of the relevant evidence.
407. After a further half day's argument, I came to the conclusion that the nature of the applications before the court which, as advanced by the third defendants, consisted principally of an application for security for costs, coupled with the applications for summary judgment and a strike-out of the claimant's application, the matter was, therefore, adjourned, the claimants being given the opportunity of putting their house in order by issuing, in a formal sense, an application, or applications, for extension of time for the purposes already noted.
408. At the conclusion of that day's submissions, assisted (as they were) by submissions on behalf of the Secretary of State, the result was, to my mind, clear, albeit I took time to formulate the reasons for my decision.
409. For the purposes of this ruling as to costs, I need not repeat the history set out in the reasons for judgment. The matter may be taken up at the point of 11th December in a letter from the third defendant's solicitors to the Treasury Solicitor, instructed, of course, on behalf of the Secretary of State.
410. In that letter, the solicitors wrote (where material):
"Please note that the application in full consists of an application for a strike-out/summary judgment and the third defendant's costs of the application or (in the alternative and in the event that the former application should fail) an application for an expedited hearing of the substantive claim and for security of costs in respect of the third defendant's costs of defending this claim, and for the costs of the application.
You will be aware that the claimant's claims against the defendants, as it is presently pleaded, is based on the proposition that the third defendant failed to submit an Environmental Statement in support of its planning application no. CA/99/1106/CAN. This proposition is, of course, wholly incorrect. We have been in correspondence with the claimant's legal representatives over the course of 7th-10th December 2001 and have sent them evidence (consisting inter alia of a copy of the third defendant's; non-technical summary and of a copy of the contents page of its Environmental Statement) that demonstrates unequivocally that the above proposition is wholly incorrect."
411. I interrupt my reading of that letter merely to underline the contents of the last sentence just read. Reverting to the letter:
"It would appear from the aforementioned correspondence that the claimant's legal representatives now seek to claim that the Environmental Statement submitted by the third defendant did not conform to the requirements [as I will briefly express] of the 1999 Regulations and/or the Secretary of State, in reaching his decision contained in the decision letter dated 26th September 2001, failed to take the third defendant's environmental statement into account in reaching his decision to grant permission to the planning application no. CA/99/1106/CAN.
So far as the latter point is concerned, the claimant's representatives have referred to the fact (which we do not dispute) that the Secretary of State did not expressly mention the third defendant's Environmental Statement in the course of the decision letter.
Nevertheless, we are concerned that the first and most obvious question for the judge to address to us is the straightforward question, to which there is a 'Yes' or 'No' answer, as to whether the Secretary of State had regard to the Environmental Statement whilst deliberating upon his decision of 26th September 2001 or not.
Our case is that the Secretary of State must be regarded as having taken the Environmental Statement into account, in as much as that statement, together with supporting documentation and (the planning application no. CA/99/1106/CAN) were all comprised and a single volume which had had before him..."
412. It must be "which he had had before him".
"...when making the decision in question. If, however, we are wrong in that regard, then we shall have to rethink our position.
Clearly if [and I think a word is missing] it were the case that the Secretary of State did not have the Environmental Statement before him and/or did not in any event have regard thereto when making his decision (on the relevant planning application) then our case would be weaker than we have hitherto conceived it (although we should continue to maintain that the claimant is out of time to bring such a claim before the court.
Hence it is very important that we should have this information, in order to enable us to decide how to conduct our defence to the claim and the steps we should take with respect to our proposed application.
We therefore request you to give an answer (preferably in writing) to either one or both of the following two questions:
(1) Did the Secretary of State have a copy of the third defendant's Environmental Statement in front of him when he made his decision to grant permission to planning application no. CA/99/1106/CAN?
(2) Did the Secretary of State 'have regard to' or take into account the said Environmental Statement in making the said decision?
We would respectfully suggest that a failure on your part to provide us with an answer to this question, and hence with information which is essential to our assessment of the strength or weakness of our case, could well lead to our incurring costs (notably, in association with the proposed strike-out application) unnecessarily, which we would not otherwise have incurred. We make this letter upon a 'without prejudice, save as to costs' basis for the reason. In short, we reserve the right show [the word 'to' is omitted] this letter to court if and when the question of costs on the substantive claim arises for consideration and to make the foregoing point."
413. Leaving out an immaterial paragraph, the letter concludes:
"If you feel it necessary to discuss this matter further, please feel free to contact our Martin Wells on the above direct line. You will be aware, however, that it is essential that we should receive the information we have requested quickly, as we are due to make our application for strike-out today."
414. On the same date, the Treasury Solicitor responded:
"I note the content of your letter and I have taken instructions. I can confirm that the Secretary of State received a copy of the third defendant's Environmental Statement prior to the Inquiry to consider the application. I am unable to comment further upon the Secretary of State's decision in this matter, as he is now functus officio.
Whether the Secretary of State had regard to or took into account the said Environmental Statement in making the decision can be established from a consideration of the facts and matters set out in the Secretary of State's decision letter and in the Inspector's report as referred to in that decision."
415. That letter is both unfortunate, in one respect, and also contains, on the other, the information which was necessary for the third defendants to know an intelligent reading of the decision letter would support that which the third defendant's solicitors had written in their letter of the same date in the fifth paragraph, last two sentences.
416. It is perfectly true (and as true as it is regrettable) that the Secretary of State did not explicitly state that which became his position in the first substantive paragraph of his letter of 11th December. As I say, however, coupled with an intelligent reading of the documents referred to in the second substantive paragraph of that letter, and indeed the third defendant's own appreciation of the position, as set out in their letter to which the Treasury Solicitor's letter of 11th December was a response, the position was, in my judgment, clear enough. It was not, however, until the response to a request for further information and clarification that the matter was explicit stated on the Treasury Solicitor's part (on behalf of the Secretary of State).
417. By a letter dated 12th December, the third defendant's solicitors wrote to the claimant's solicitor, saying (among other things):
"We write to advise you that our application to strike out the claim form or for summary judgment will be on Thursday 20th December 2001.
Please find ... ... application and four draft orders: one for summary judgment and costs, one for strike out and costs, one for security of costs, one for expedited hearing and costs."
418. On 13th December, the claimant's solicitor wrote to the third defendants giving their consent for the substantive application to be expedited, but resisting the orders for security for costs, stating, in his opinion, "It is a hopeless application and completely without justification."
419. That letter provoked a response from the third defendant's solicitors which reveals a surprising, regrettable, and wholly inappropriate response to the claimant's solicitors, and is one which, in my judgment, indicates that the last concept which was present to the mind of the third defendant's solicitors were considerations of the overriding objective contained in Part 1 of the Civil Procedure Rules.
420. In the third paragraph of their letter of 13th December, the third defendant's solicitors wrote:
"We are not interested in your views as to the merits of our application for security for costs, nor are we interested in your views as to our requests for our costs of the application. We anticipate that the counsel instructed by you will make submissions on these points at the appropriate time and the appropriate place."
421. It was on 18th December (five days later) that the Treasury Solicitor wrote:
"I am writing to inform you that, following advice, the first defendant is now disposed to consent to judgment on the grounds set out in paragraph 5(1) of the grounds in support of the claimant's application, ie that the Secretary of State failed to comply with the requirements of the Environmental Impact Assessment regime. I am instructed to confirm that the first defendant will be responsible for your client's cost of the proceedings to today's date, subject to detailed assessment if not agreed."
422. The rest of the letter I need not read. I should have said, as it is the fact, that was a letter addressed to the claimant's solicitors.
423. It was on 20th December, it will be recalled, that the matter was first listed for hearing by the court. On that occasion - I speak from memory - a cost schedule, on behalf of the third defendants, had been prepared which showed claimed costs in excess of £10,000.
424. The overriding objective of the Civil Procedure Rules is that the court should be enabled to deal with cases justly. Dealing with cases justly includes, so far as practicable:
(c) dealing with a case in ways which are proportionate --
(ii) to the important of the case;
(iii) to the complexity of the issues;
(iv) to the final financial position of each party."
425. As is well known by part 1.2:
"The court is required to give effect to the overriding objective."
426. It is a matter of record that, immediately following the hearing before me on 14th January, the third defendants decided that they would consent to judgment, as had the first defendant at an earlier stage. It will be recalled by those who appeared before me on 14th January that, although there was no investigation into the substantive merits of the claimant's claim, it was said on behalf of the third defendants that, notwithstanding the concession made by the Secretary of State that he had not had regard to the Environmental Impact Assessment regime, they, nevertheless, proposed to resist the claimant's claim on its merits.
427. The position is, thus, that, before 11th December, the third defendants knew - and if they did not know, they ought reasonably to have known inferentially - that which was subsequently expressly admitted on behalf of the Secretary of State.
428. I have already expressed regret about certain aspects of the conduct of these proceedings on the part of the third defendants; I must also express regret and surprise at the inadequacies of the letter written by the Treasury Solicitor "on instructions" which led to him not expressly admitting that which was at the very heart of the case: the question whether or not the Secretary of State had considered the Environmental Impact regime.
429. Trying to stand back from all these matters, the fact is now plainly established, and, in my judgment, was plain for all to see, from 11th December at the latest, subject to the question of the timelessness of the claimant's application, the substantive merits of it were all one way once the factual basis of the claim had been properly pleaded.
430. As to that, reference to the grounds in support of the claim shows that, by paragraph 5 of that document, it was the claimant's claim:
"The Secretary of State's decision to grant planning permission was unlawful as:
1. He failed to comply with the requirements of the Environmental Assessment regime.
2. He failed to take into account material consideration as he considered the funding arrangements should not be taken into account in this case."
431. It is unnecessary to consider 2 any further. But by paragraph 8 of that document, it was asserted:
"In the present case the local planning authority (Canterbury City Council) advises that it considered the proposals to be EIA developed. Though, after discussion with the developers, matters were left on the unlawful basis that an informal Environmental Statement would be provided. This was not treated in law by the local planning authority as an Environmental Statement under the Environmental Assessment regime."
432. As a factual averment, that was wrong. As a legal averment, it was, arguably, correct, in that the Secretary of State did not consider the Environmental Assessment information which had been made available to him, and so it was argued in Ground 9 of the claim form that the Secretary of State had the opportunity to cure this error of law but failed to do so.
433. In paragraph 11 of the claim form it was said:
"The Secretary of State had not complied with the requirements of the Regulations. There was no consideration of an Environmental Statement, or indeed the so-called informal Environmental Statement in his decision letter or in the Inspector's report, nor is it listed in the Inquiry documents."
434. It was plain for all to see that the Secretary of State had not complied with the requirements of the Regulations; that emerged from the decision letter itself. His letter of 11th December, although, as I have said, in non-explicit terms, makes the position (which the third defendants had already appreciated) as clear as may be.
435. In introducing his submissions, in relation to the persons by whom the costs in this sorry episode should be paid, Mr Village (on behalf of the third defendants) produced what has come to be known as 'his agenda' for the court's benefit. Thus:
1. Costs of the claimant's application attributable to the claim under section 288 of the Act of 1990.
2. Costs of the third defendants in dealing with the claim generally, including costs since 14th January. By way of exposition of that item, those costs consist of a number of letters and attendances occasioned by attempts to arrive at a compromise in relation to the costs and ultimate terms upon which the court should enter judgment in the substantive proceedings
3. Costs incurred by the third defendants in issuing their summons for summary judgment and strike out (which were not, in the event, pursued).
4. Costs of the claimant's application for extension of time.
5. Costs in respect of the application by the college for security for costs. That last item can be disposed of as quickly as Mr Village's submission in relation to it, because he did not seek those costs.
436. That the first and third defendants have now both agreed that there should be a judgment in favour of the claimants - in terms which I have yet to consider - means that, so far as the claimants are concerned, the general proposition, that having succeeded in their claim for relief, they should be entitled to those costs, is an unassailable position. The claimants, thus, are entitled to the costs of these proceedings, subject to what I shall have to say hereafter.
437. Secondly, the costs of the college in dealing with the claim generally. The error - for such it was - on the part of the Secretary of State certainly led to these proceedings, certainly led to the third defendants incurring costs in deciding how they should respond to the claim made by the claimant. The question at issue is: how far those costs should go.
438. In my judgment, those costs should go up to and including 11th December and, at this stage, no further, for the reason that, by that date, at the latest, the third defendants knew the basis upon which the Secretary of State had erred by their decision taken on 15th January that they, too, would consent to judgment. The submission that they had substantive merits advanced, as it was, before me on 14th January can be assigned to forensic posturing in order to maintain a semblance of respectability once the third defendants knew, or as good as knew, that the court would extend time.
439. In those circumstances, it was inevitable, but for the third defendant's subsequent decision to indicate that they would submit to judgment, that the matter would proceed.
440. Should the third defendants thus be entitled to recover any costs in the period from 11th December up to today's date, including - as it must - the costs of the hearing on 14th January?
441. The third defendants incurred costs on their applications issued on 11th December in full knowledge of the relevant facts. Full knowledge of those circumstances would not have suggested that there was any answer to the claimant's claim. Albeit it was the Secretary of State's original error which led to the initiation of proceedings, I cannot apportion to the Secretary of State responsibility for costs which the third defendant decided to incur in the battery of applications which they issued on the very date upon which they as good as knew what the true position in relation to the substantive issue was.
442. The next question is whether the third defendants should be entitled to recover as against the Secretary of State the costs incurred in issuing the applications for summary judgment and strike-out. The answer must be "No," and for the reasons already identified.
443. The fourth element of costs relates to the claimant's application for extension of time. The necessity for that application to extend time was entirely attributable to shortcomings on the part of the claimant and/or alternatively her solicitor.
444. As already indicated in the reasons for judgment, no satisfactory or cogent explanation for the fact that the proceedings were served late, the evidence was served late, no satisfactory explanation has been forthcoming. Excuses have been proffered falling well short of explanation.
445. In the judgment, the claimants should not recover the costs of their applications in that respect, and up to the stage at which the third defendants determined that they would oppose that application, they should be entitled to their costs in relation to the application for extension of time.
446. Once the third defendants had appreciated, or should have appreciated, that the claimants were going to succeed (as it must be assumed in these circumstances they should have done), the costs of the hearing of that application for extension of time should classically follow the event. There will be a mutual set-off between the claimant's costs of the hearing in relation to the extension of time in relation to the third defendant's costs of receiving and considering their response to that application.
447. The fifth item has already fallen by the way, and requires no separate adjudication.
448. I trust that I have dealt with all the issues of costs which arise. I will ask that counsel prepare a minute of order for costs, or orders for costs, which follow as a result of this ruling, and submit them to the Associate, for my approval, in due course.
449. MR McCRACKEN: My Lord, I wonder, bearing in mind the responsibility that falls upon us, whether I, as one of the three who will have the responsibility for submitting that minute, could just seek clarification on one matter. I think I understood your Lordship to be directing that the third defendant should pay our costs of resisting the third defendant's application for strike-out/summary judgment and security for costs?
450. MR JUSTICE TURNER: Yes.
451. MR McCRACKEN: I am obliged, my Lord.
452. MR JUSTICE TURNER: Yes.
453. MR VILLAGE: My Lord, just in relation to the order first, is it your Lordship's wish that we prepare the minute today for submission?
454. MR JUSTICE TURNER: At the convenience of counsel, but within seven days, please?
455. MR VILLAGE: And in relation to the order, would my Lord make a formal order quashing the decision of the Secretary of State?
456. MR JUSTICE TURNER: I do, on the ground of failure to comply with the Environmental Impact Assessment regulations.
457. Mr Bedford, I raised with you on the previous occasion the question of time within which the Secretary of State proposed to act. I understood - I hope my memory serves me correctly - that, on that occasion, you were without relevant instructions. You must, I assume, have had the opportunity to take instructions on that point, secure in the knowledge that I was likely to ask the same question today. What is the answer?
458. MR BEDFORD: Your Lordship has made assumptions. Regrettably, I am not in a position to advance the matter further.
459. MR JUSTICE TURNER: Well, I think this is highly regrettable.
460. MR BEDFORD: My Lord, can I explain the position, which is substantially the position as I explained it on the last occasion? The procedure that is followed now rests with the Secretary of State, in terms of administrative procedures, and can take different routes, the different routes being that it may be possible, in some circumstances, to redetermine the appeal merely on receipt of further representations from the parties. In other circumstances, it is necessary to contemplate either a second inquiry or a reopening of the inquiry and proceed in light of what transpires from that inquiry.
461. The decision as to which administrative procedure is to be followed is not made in the abstract; it is made in the first instance having invited representations from the parties as to their views as to the way forward. Those views are then taken into account by the Secretary of State, and it is on the basis of that consideration that a decision is then made as to the way to proceed.
462. In those circumstances, the Secretary of State does not, in advance, indicate how he intends to proceed, because he leaves it for the parties first of all to make their representations to him, rather than to prejudge that without knowing what their representations would be.
463. MR JUSTICE TURNER: I think I could ask you perfectly fairly within what time-scale the Secretary of State would take the first of those decisions?
464. MR BEDFORD: My Lord, I have no specific instructions. But, clearly those who instruct me - my Lord, I can say that, on the last occasion, in addition to those from the Treasury Solicitor, a representative from the relevant part of the Department was present - those who instruct me are perfectly well aware both of the importance of making a redetermination and of the time-scale issues, and the most I can say without specific instructions, is that it will be done as soon as possible, and I obviously will add my own comments to those instructing me, in the light of your Lordship's concerns, to ensure that it is not only as soon as possible, but it is absolutely as soon as possible. I cannot take it any more further than that. But the Secretary of State is clearly aware of the importance of the issue and of the concern that has been expressed. Therefore, the matter will be dealt with as quickly as it can be. But, subject to needing to ensure, as I say, that those --
465. MR JUSTICE TURNER: That, I understand. I think, really, what I am searching for, from you, is some indication that this case will be accorded priority to, so that the damage inflicted by the erroneous decision, potentially on the third defendants, is limited.
466. MR BEDFORD: Well, clearly without instructions, I cannot give any undertaking in relation to priority, because that will depend, obviously, on competing considerations. But clearly, the importance that is attached to this individual application is well understood. But I do not think that I can really put it any higher or more helpfully than that.
467. MR JUSTICE TURNER: No.
468. MR BEDFORD: My Lord, can I mention two matters? My Lord, in terms of your Lordship's judgment, at the --
469. MR JUSTICE TURNER: Judgment or ruling?
470. MR BEDFORD: Sorry, the ruling - I apologise - the ruling on costs. Your Lordship referred to the hearing of the first full day of argument on 18th December.
471. MR JUSTICE TURNER: It was plainly an error for the 20th. I am grateful to you for reminding me. I corrected it later.
472. MR BEDFORD: Indeed your Lordship did. My Lord, more substantively, in relation to one aspect of your Lordship's ruling on costs, which was in relation to the ruling that the first defendant pay the third defendant's costs up to 11th December of last year, my Lord, in the circumstances, I do ask for permission to appeal in relation to that ruling.
473. My Lord, in short point, it does raise a wider point than the facts of this case. The reason given by your Lordship was that there was an error clearly by the decision-maker at the outset, and that that error caused the third defendant to incur costs deciding what its position was going to be in relation to the challenge and, in the event, it follows, what thereafter transpired.
474. My Lord, the Secretary of State would be concerned if, as a matter of general practice, the view were to be that, wherever there was an error in a decision letter, that other parties who, in the light of knowing of the challenge, take legal advice and decide what they are going to do. If, in the event, the challenge gets home, they can look to the Secretary of State for costs that they have incurred.
475. MR JUSTICE TURNER: If that were the case that I had decided the matter as one of general principle, then I might be persuadable. I have decided this on the facts of the instant case.
476. MR BEDFORD: Well, my Lord, that a helpful clarification. My Lord, notwithstanding that, since those who instruct me may wish to continue the matter further, I do formally ask for permission to appeal in relation to that matter, but I welcome your Lordship's clarification.
477. MR JUSTICE TURNER: Thank you. Mr Village?
478. MR VILLAGE: My Lord, two matters arise out of that. First, I wonder whether Mr Bedford can give an assurance that, if he is to appeal my Lord's judgment and ruling, or ruling in relation to costs, that that will not prevent the redetermination?
479. MR JUSTICE TURNER: The expeditious redetermination.
480. MR VILLAGE: The expedition redetermination. We are very concerned that this has not received the attention it deserves already from the Secretary of State.
481. MR JUSTICE TURNER: I see Mr Bedford nodding, but I am going to give him the opportunity of rising to his feet and giving that assurance.
482. MR VILLAGE: The second matter --
483. MR JUSTICE TURNER: Just ...
484. MR VILLAGE: My Lord, yes. Clearly, the issue on costs is a quite separate issue to administrative procedures following from the quashing of the (inaudible).
485. MR VILLAGE: The second matter, my Lord, is that, may I remind my Lord, that, during the course of argument, he expressed the view that you would be - you may wish to write to the Rules Committee in relation to the provisions of order RSC 94, rule 2 which, effectively, requires the service of the claim form on (as was this case) the Secretary of State and the local authority, but did not require the service on the affected third party, namely the college.
486. MR JUSTICE TURNER: Mr Village, I am most grateful to you for remind me of that. What I am going to ask you to do is to submit to me in draft the letter you would hope I would write.
487. MR VILLAGE: I would be very obliged to. I would be much obliged to do that, my Lord.
488. MR McCRACKEN: My Lord, I wonder if I could ask that your Lordship contemplate incorporating in the order of the court a direction that the attention of the Rules Committee be drawn to the point that Mr Village has just referred to, so that the concerns of the court be recorded in a form which can be the subject of consideration by the House of Lords in a case which is before them in two weeks' time relating to other provisions of the rules but which are related -- which are connected to this provision?
489. MR JUSTICE TURNER: I am afraid you will are have to speak more directly, Mr McCracken.
490. MR McCRACKEN: Well, the point is simply this, to be entirely, I hope, clear about it: in two weeks' time, the House of Lords are considering the compatibility of the requirement that judicial review challenges should be made promptly and in any event within three months. Amongst the submissions that will be made to the House of Lords will be that the requirement for promptness is not compatible with the principle of certainty. Part of a factor which will be relevant to the House of Lords in considering that is the extent to which the Rules Committee have really been looking at the rules relating to statutory challenges and judicial review.
491. MR JUSTICE TURNER: But promptitude in three months is judicial review, not statutory appeal.
492. MR McCRACKEN: Indeed, my Lord. But the failure of the Rules Committee to consider this point indicates that this area of the rules is an area which has not been approached with the same degree of thoroughness that one associates with other areas of the rules, and, therefore, I am thinking that it might be helpful for their Lordships to know that there is serious disquiet about other related aspects of the rules.
493. MR JUSTICE TURNER: It seems, at the moment, Mr McCracken, that their Lordships' House would be quite capable of hearing submissions on that without any form of ruling from me.
494. MR McCRACKEN: Perform a judgment on the point, my Lord, yes. So be it.
495. Can I indicate that I am interested in the letter that your Lordship sends to the Rules Committee?
496. MR JUSTICE TURNER: Well, no doubt you and Mr Village can cooperate together, and if you let me have a copy within ten working days?
497. MR McCRACKEN: If your Lordship felt able to let us see a copy of the letter that your Lordship sends, we obviously would very much appreciate that.
498. MR JUSTICE TURNER: I will, as a matter of formality and courtesy.
499. MR McCRACKEN: I am very much obliged to your Lordship.
500. MR JUSTICE TURNER: Thank you very much.