Case No: C1/2008/1849
Neutral Citation Number:  EWCA Civ 1632
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Thursday, 6th November 2008
THE MASTER OF THE ROLLS
(SIR ANTHONY CLARKE)
LORD JUSTICE WALLER
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The Queen on the Application of ELEY
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THE SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT
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(DAR Transcript of
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Ms N Lieven QC (instructed by Treasury Solicitors) appeared on behalf of the Applicant.
Ms E Dixon (instructed by Messrs Richard Buxton) appeared on behalf of the Respondent.
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Sir Anthony Clarke, MR:
1. This is the renewed application for permission to appeal against an order of Collins J made on 1 July 2008, in which he made a protective costs order ("PCO") in favour of the claimant in the sum of £3,500. Permission was refused on paper by my Lord, Waller LJ. No application was made to set aside Collins J's order at an oral hearing by either party. The claimant's case is a challenge to a development proposal under section 288 of the Town and Country Planning Act 1990: the issue in that substantive matter is whether the decision was wrong in law. Unlike the ordinary judicial review application there is no necessity to seek permission to make the challenge. The claimant is an objector to Watford Borough Council's proposal to build eleven houses on a plot of land. One of the issues in the challenge is an alleged failure to disclose in good time relevant information in respect of the wildlife on the site, namely badgers, and that the inspector failed to consider the potential impact on that wildlife. The appellants argue in their paragraph 14.4A statement that the material was disclosed and that the only arguable issue is in relation to the inspector's decision in respect of admissibility.
2. Ms Lieven has emphasised this morning that this is not a case about disclosure, because there was disclosure. The inspector had a discretion whether or not to accept the material. He decided not to, in the exercise of his discretion. The sole issue, she says, is whether that was an error of law. The claimant's litigation is funded under a CFA. She is not eligible for legal aid, even though she has a low income, because she has equity in her house. Both parties made submissions in writing to Collins J, who was considering only the question whether a PCO should be granted. It was the case for the Secretary of State and, I think, the council that if a PCO was made in favour of the claimant, capping the claimant's liability for costs, a costs capping order should also be made by way of balance in favour of the Secretary of State.
3. The judge gave his decision in writing shortly as follows:
"I accept that the issue of the extent to which a party to a planning appeal has a duty to disclose material which may be adverse to his appeal is one of general importance, particular in the context of environmental protection. Further, the no personal interest condition in Corner House is in my view unsustainable. To have locus standi or a person aggrieved requires some interest. I note the claimant's financial situation. I very much doubt whether, if she loses, the Rotten [by which I think he meant Bolton] principle would justify more than one set of costs, subject to the statement of Innes Grey. I note too that the Secretary of State suggests her costs will not amount to more than £10,000. In all the circumstances, I am prepared to approve a Protected Costs Order but I think £2500 is a little too low. I will direct £3500."
4. It just happens that, on the same day that the judge gave judgment in this case, this court handed down judgment in the case R (Compton) v Wiltshire Primary Care Trust  EWCA Civ 749 ("Compton"). The court comprised Waller LJ, Smith LJ and Buxton LJ. Buxton LJ dissented at least in part. In this case my Lord, Waller LJ gave these four reasons for refusing permission on paper:
"1. This is an environmental case to which the Aarhus convention applies.
2. The principles in Corner House are not statutory provisions (see paragraph 23 and 74 of Compton) and the fact that there is some private interest should not rule out a PCO.
3. The judge was entitled to take the view that he did as to general importance.
4. It would be disproportionate to bring to the Court of Appeal this very limited PCO."
5. Yesterday this court, comprising Maurice Kay LJ, Stanley Burnton LJ and myself, handed down judgment in a case called R (Buglife -- The Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corpn  EWCA Civ 1209 ("Buglife"). It just happens that Emma Dixon is both junior counsel for Buglife and also counsel for the claimant and respondent in this case. There has been some development of the relevant principles since the decision in R (Corner House Research) v Secretary of State for Trade & Industry  1 WLR 2600 ("Corner House"), but the principles appear to me to be reasonably clear in the light of Corner House, Compton and Buglife.
6. In Compton and Buglife it was made clear that, subject to the slight variations which appear in those cases, the correct approach is to follow the underlying principles in Corner House. In Buglife we made it clear that the procedure set out in Corner House and approved in Compton should be followed.
7. The Secretary of State's grounds may be summarised in this way. First, the judge failed to follow the Corner House criteria. He was plainly wrong to conclude that this was a case of general public importance and plainly wrong to conclude that the public interest required that the issues should be resolved. Secondly, the judge failed to explain why any issue in the case is of general public importance, and failed to explain why the issue raised by the claimant was one which the public interest required should be resolved. Ms Lieven submits on behalf of the Secretary of State that there are compelling reasons for this court to set down further clear principles for PCO's in the environmental context. She submits that it is not clear to judges at first instance how the first two principles in Corner House in particular -- that is, the test relating to public importance -- should be applied by judges of first instance. She further submits that the case raises two important principles, the first being whether the judge's approach to the test of general public importance was plainly wrong. She says it concerns only one outlier badger set and, even from an environmental perspective, that is at the very bottom end of a possible scale, and she submits that the judge misunderstood the factual position on the basis that it appears from his reasons that he thought that it was a case about disclosure, whereas it was in fact a case about whether the inspector had exercised his discretion correctly. The second important point of principle she adverts to is the judge's approach to the criterion of no personal interest. She submits that these issues are of great importance to the Secretary of State, that there is a real prospect of success and that issues of wider public importance arise.
8. In summary, I have reached these conclusions. First, the principles set out in paragraph 74 in Corner House remain valid, subject to the comment in Compton and, to some extent, Buglife, but they are not to be construed as a statute. The test of general public importance is a broad one, as Waller LJ pointed out in paragraph 24 of Compton. That paragraph concludes with this sentence:
"It is a question of degree and a question which Corner House would expect judges to be able to resolve."
9. In paragraph 87 of her judgment Smith LJ makes it clear that, whether the tests relating to the public interest are satisfied, involves a consideration of all the circumstances of the case; that involves a balance of where on the spectrum of public importance the issues rank on the one hand and the interest of the claimant ranks on the other. Does the claimant have solely a personal interest or does she have some other interest of a public nature? The cases are infinitely variable and it is a matter for judges at first instance to decide where on the spectrum each case lies. Those principles are, I think, affirmed in the judgment in Buglife. It was thus a matter for the judge to decide whether the first two tests in paragraph 74 of Corner House were satisfied. To my mind, the question whether the judge was right to reach the conclusion he did does not raise a question which it is appropriate to bring to this court on the facts of this case. The principal argument advanced is that the judge was plainly wrong, which is a submission that derives from the facts of the particular case. I am not myself persuaded that there is a real prospect of showing that the judge was wrong in principle, in the sense that he applied the wrong principle.
10. As to the point that the judge erred in principle when he said: "further the no personal interest condition in Corner House is in my view unsustainable", it seems to me that he was only saying that he could not say that, because the claimant had a personal interest, the PCO should be refused. Although I appreciate that this is not a judicial review case as such, a person seeking judicial review has in every case to have some personal interest before the application can be made at all. The nature and extent of a claimant's personal interest is simply one of the factors to be taken into account in deciding whether, in all the circumstances, applying the Corner House principles, it would be just to make a PCO and, if so, whether it would be just to cap the other side's costs by way of some form of balance. I detect no error of principle in the judge's approach to the personal interest -- what he calls the "personal interest condition".
11. Next I should refer to the process that was adopted in this case. The Secretary of State did not follow the process as suggested in Corner House and Compton and now followed in Buglife. That process is designed to ensure that issues relating to PCOs are kept within as small a compass as possible in order to avoid what can be the very considerable costs of satellite litigation. What in essence should have happened here was that the Secretary of State should have sought an oral hearing at first instance in order to challenge the reasoning of the judge, in which the various points that are now advanced could have been put shortly to the judge, who would hear short argument from both sides. The correct procedure is summarised in paragraph 29 to 31 of Buglife, which in effect follows the approach suggested in Corner House and Compton.
12. I am not persuaded by Ms Lieven's argument that this case raises points of real importance which should be considered by this court without having the matter properly dealt with, albeit shortly, by a judge after an inter partes hearing.
13. For all these reasons I am not persuaded that this is a proper case for this court to consider. There may be points which may need further debate in due course as matters progress, but I entirely agree with the point made by Waller LJ in writing when he expressed the view that an appeal in this case would be disproportionate. I would only add this. One of the grounds of complaint is that, although the Secretary of State submitted to the judge in writing that there should be a balancing PCO -- a balancing cap on the Secretary of State's liability for costs, the judge does not refer to that submission and did not make a balancing order. The inference I would draw is not that he did not consider it, but that he decided that it was not appropriate to make the order. He was, after all, giving very short reasons. Ms Lieven quite properly recognises that, if that were the only point in the case, the matter should have been taken back to the judge. It appears to me that what should now happen, however, is that this case should now be heard on its merits. I understand that it is presently listed for 5 February. It appears to me that that is where the parties should now go.
14. I would refuse the renewed application.
Lord Justice Waller:
15. I entirely agree.
Order: Application refused