Neutral Citation Number:  EWHC 193 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Wednesday, 11 January 2006
B E F O R E:
MR JUSTICE BEAN
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THE QUEEN ON THE APPLICATION OF TINN
SECRETARY OF STATE FOR TRANSPORT
CAMBRIDGESHIRE COUNTY COUNCIL
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Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
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MR P BROWN (instructed by Richard Buxton, Cambridge) appeared on behalf of the CLAIMANT
MR D FORSDICK (instructed by the Treasury Solicitor, London) appeared on behalf of the DEFENDANT
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J U D G M E N T
(Approved by the Court)
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1. MR JUSTICE BEAN: The claimants are residents of Offord Cluny in Cambridgeshire. Offord Cluny is about two and a half miles south-southwest of Huntingdon. Another village, Offord D'Arcy, is just to the south of Offord Cluny. The two are known together as the Offords. A crow flying from Offord Cluny to Huntingdon would do so broadly along the line of the main east coast railway line and would pass over an area of higher ground known as Offord Hill, about one mile after leaving the village of Offord Cluny. The A14 trunk road is a key west-east route in the area. There has been a widespread view for many years that it is inadequate.
2. A preliminary appraisal of the court in 1991 examined a number of options and recommended that two routes be taken forward. Both involved bypassing Huntingdon together with Grampton and Godmanchester on the south side. The red route passed to the north of Offord Hill, the green route to the south. However the matter was not taken further during the Government review of trunk road projects in the late 1990s.
3. In January 2002 the Government Office for the East of England commissioned the Cambridge-to-Huntingdon Multi-Modal Study, CHUMMS. After extensive public consultation the final report of CHUMMS was published in August 2001. It recommended, inter alia, the construction of a new three-lane dual carriageway to the south of Huntingdon. A diagram entitled the "Preferred Plan" showed a route marked by a thick dotted line passing to the north of Offord Hill and of an area known as the Buckden landfill site. There was a rubric stating that the precise alignment was to be the subject of further consultation. The text of the report states:
"It should be noted that the exact route cannot be determined until this design and consultation work has been carried out."
4. In the course of October 2001 the Preferred Plan was supported by the regional planning body, the East of England Local Government Conference, and the Regional Assembly. In a letter of 13 December 2001 the then Minister for Transport, John Spellar MP, accepted the recommendation of the regional planning body. He noted:
"The preferred plan includes a map showing an approximate line for a southern bypass of Godmanchester, Huntingdon and Brampton".
He also stated:
"By endorsing further work on the Preferred Plan I am not pre-empting any of the usual statutory and other processes through which transport projects have to be developed, including opportunities for public consultation and, where necessary, a public inquiry."
5. On 1 April 2003 the Secretary of State announced that the proposal to provide a new route from Fenstanton to Ellington, including a southern bypass of Huntingdon, had been approved. The announcement stated:
"The Highways Agency will now be developing the scheme to the stage where the public can be consulted on the preferred route"
"The next step for the scheme is for the Highways Agency to have a public consultation leading to the announcement of a preferred route."
6. Following this announcement a number of reports were produced: an Initial Route Options Report (IROR) in October 2003, an Environmental Scoping Report (ESR) also in October 2003, a Preliminary Services Study Report (PSSR) in February 2004, an Environmental Assessment Report (EAR) in May 2004, a Technical Appraisal Report (TAR) in October 2004, and a stage two Scheme Assessment Report (SAR) also October 2004. None of these was in the public domain prior to disclosure in this litigation, save for the SAR which was published in March 2005.
7. The IROR proposed further consideration of three options: a blue route and a purple route, each going north of Offord Hill, and an orange route going south of Offord Hill, with an elevated section passing over the Great Ouse and the East Coast Railway line. The EAR suggested public consultation on route options before publication of an SAR and the announcement of a preferred route.
8. The purpose of the EAR was stated to be to identify the environmental advantages, disadvantages and constraints associated with each of these route options and to allow the public to comment on their implementation leading to the solution at the selection of a preferred route.
9. These documents, which as I have said were not made public, envisaged a number of options while proceeding on the basis that there would be a southern bypass of Huntingdon. By contrast the PSSR recommended that the orange route alone be taken forward for further study.
10. In February 2004 the Highways Agency and officers of Cambridgeshire County Council made joint presentations to elected members of the county council, Cambridge City Council, South Cambridgeshire District Council and Huntingdon District Council to explain the development of the scheme so far and, of particular relevance for present purposes, with two possible alignments under consideration at Offord Hill and the Buckden landfill site.
11. Following these presentations several district councils requested meetings between the Highways Agency and their parish councils. As a result, during the summer of 2004 Mr Povey of the Highways Agency met representatives of the parish councils of Fenstanton, Hilton, Hemingford Abbott, Hemingford Gray and Houghton and Wyton, and addressed public meetings at Brampton and Buckden. No request was made on behalf of the Offords.
12. The TAR and the PSSR recommended that the blue and purple routes be rejected but the orange route be designated as the preferred route, and that only the orange route be taken forward to public consultation. A section of the TAR headed "Consultations with Public Bodies" stated:
"Consultations with statutory authorities, local councillors and other interested parties have been undertaken in advance of the formal Public Consultation exercise, to obtain the views of key stakeholders on the proposed route options."
The councils which had been the subject of the meetings with Mr Povey to which I have referred were listed in the report. All of these councils except Coringham and Hilton supported the orange route.
13. Since none of these reports was in the public domain the claimants and the Offord Cluny Parish Council did not realise that a route south of Offord Hill was being recommended as the preferred route, until April 2005 when the Highways Agency published the SAR together with the consultation leaflet. The leaflet invited comments by 30 June 2005. It contained a plan showing a proposed alignment essentially the same as the orange route going south of Offord Hill and including a viaduct 30 metres high and 1.2 km over the Great Ouse, and the railway line.
14. On 17 May 2005 the claimants' solicitors wrote to the Highways Agency complaining that, while the CHUMMS report had stated that the precise alignment would be the subject of further consultation, the consultation in fact taking place was limited to the orange route. A further letter of 14 June 2005 argued that there was a legitimate expectation having regard to the CHUMMS report that any consultation carried out by the Highways Agency would include the Preferred Plan - that is a route going north of Offord Hill.
15. The Highways Agency did not respond until 6 July 2005. After referring to the CHUMMS report the letter continued:
"As you say, the CHUMMS report stated that the precise alignment would be the subject of further consultation and that is now happening. The Highways Agency does not consult the public on alternatives, which it is not prepared to implement.
The opportunity for a public inquiry into the proposals will arise at a later stage, when detailed proposals are published in the form of draft Orders under the Highways Act. It is then that the formal objections may be made which, if unresolved, may lead to a public inquiry before [an] independent inspector."
16. An application for permission to seek judicial review was lodged on 9 August 2005. By order of 23 November 2005 Davis J granted permission, reserving any issue of delay to the substantive hearing.
17. In the statement of facts and grounds settled by Mr Paul Brown of Counsel, the claimants argue that by reason of the history as set out above the claimants had a legitimate expectation that:
"(a) the alignment of the proposed new carriageway (including the choice as between different alignments) would be the subject of public consultation; and
(b) that consultation would be based upon the alignment shown in the Preferred Plan (as set out in the CHUMMS Report) and/or the Blue and Purple Routes as identified in the Atkins Report; alternatively (and at the very least) that the Preferred Plan and/or the Blue & Purple Routes would be included in any public consultation which was carried out."
The pleading went on to allege that, in breach of this legitimate expectation,
"(1) The Defendant has not consulted on the choice of possible routes for the new road, but has limited the consultation which is being carried out to consultation on the details of one particular alignment (the new route).
(2) As appears from the Highways Agency's letter of 6th July 2005, the Defendant has (without the public consultation which was promised in the CHUMMS Report) already taken a decision in principle that it is 'not prepared' to build the scheme on the alignment shown on the Preferred Plan, ie that the Preferred Plan has been ruled out."
18. In R (Bibi) v Newham London Borough Council  1 WLR 239 the Court of Appeal held that where it was alleged that a public authority had, whether by practice or promise, created a legitimate expectation that a person would be granted a substantive or procedural benefit, the court should consider (1) to what the relevant authority has in fact committed itself, this being "a question of analysing the evidence" which "poses no jurisprudential problems"; (2) whether the authority had acted or proposed to act unlawfully in relation to that commitment and, if so (3) what the court should do. In R (Abdi) v the Secretary of State for the Home Department  EWCA Civ 163 at paragraph 68, Laws LJ said that the theme running through the legitimate expectation cases may be expressed thus:
"Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so."
19. Ordinarily a legitimate expectation should be founded on a representation which is clear, unambiguous and devoid of relevant qualification: see the well-known judgment of Bingham LJ (as he then was) in R v Inland Revenue Commissioners ex parte MFK Underwriting Agencies Ltd  1 WLR 1545 at 1569.
20. But in R (Zequir) v Secretary of State for the Home Department  UKHL 3 at paragraph 44, Lord Hoffmann said:
"It is well established that conduct by an officer of state equivalent to a breach of contract or breach of representation may be an abuse of power for which judicial review is the appropriate remedy: see Lord Templeman in R v Inland Revenue Commissioners, Ex P Preston  AC 835, 866-867. This particular form of the more general concept of abuse of power has been characterised as the denial of a legitimate expectation. In considering the expectations which may legitimately arise from statements to taxpayers by the Inland Revenue, Bingham LJ said that they must be 'clear, unambiguous and devoid of relevant qualification': see R v Inland Revenue Commissioners, Ex p MFK Underwriting Agents Ltd. Mr Gill said that while it might be appropriate in the case of dealings between the Revenue and sophisticated tax advisers to insist upon a high degree of clarity in the alleged representation, this need not necessarily be required in other cases. Kosovar refugees cannot be expected to check the small print. In principle I agree that an alleged representation must be construed in the context in which it is made. The question is not whether it would have founded an estoppel in private law but the broader question of whether, as Brown LJ said in R v Inland Revenue Commissioners Ex P Unilever Plc  STC 681, 695B, a public authority acting contrary to the representation would be acting 'with conspicuous unfairness' and in that sense abusing its power."
21. Mr Brown pointed to the following documents which were in the public domain before 2005 which he submitted founded his client's legitimate expectation. First, the preferred plan in the CHUMMS report showing a route passing to the north of Offord Hill and stating that the precise alignment of the carriageway would be the subject of further consultation and the text of the report saying that the exact route could not be determined until consultation had been carried out. Secondly, the Minister of State's letter of December 2001 in which he stated that the Government have accepted the regional planning body's recommendations supporting the CHUMMS report. Thirdly, the Secretary of State's announcement of 1 April 2003 that:
"the next step for the scheme is for the Highways Agency to have a public consultation leading to the announcement of a preferred route."
22. I do not consider that these documents, whether individually or collectively, gave rise to a legitimate expectation either that the Secretary of State would consult on more than one route or that the preferred planned route in every last detail would be the subject of or included in the consultation.
23. As to the CHUMMS report, the rubric on the diagram properly construed means that there will be further consultation before a final decision is made as to the precise alignment of that carriageway, and so there was in 2005. The passage in the CHUMMS report text is to like effect. The Minister of State's letter of December 2001 contains the qualification that the preferred plan map shows only an approximate line for the southern bypass of Godmanchester, Huntingdon and Brampton. The Secretary of State's announcement of April 2003 means no more than it says. Even now, the preferred route announcement has yet to be made. I deal later in the judgment with the issue of whether the 2005 consultation took place at a time when the proposals were in any sense at a formative stage.
24. Mr Brown also relied on passages in the reports prepared by the Highways Agency consultants for internal consumption. He cited R (Rashid) v Secretary of State for the Home Department  EWCA Civ 744, in which the claimant was held entitled to the benefit of an aspect of immigration policy of which at the relevant time he had been unaware. But I accept the submission of Mr Forsdick for the defendants that where the Secretary of State has set out in one or more public statements what he intends to do, a claimant cannot legitimately rely on phrases in documents not in the public domain and of which he was at the time unaware, to add to or change that to which the Secretary of State has publicly committed himself. Nothing in the Rashid case appears to me to suggest the contrary.
25. It is stretching language beyond what is reasonable to say that in this case the Secretary of State had a "policy" that there would be a round of consultation before making any change in the details of the proposed preferred route or narrowing the options to one followed by a further round of consultation on that route before a preferred route announcement. In any event, I do not consider that the passages in the internal reports on which Mr Brown relied do amount to clear, unambiguous and unqualified statements to that effect. I therefore conclude that the legitimate expectation argument falls at the first fence.
26. I turn to the separate issue of whether the 2005 consultation took place while the proposals were at a formative stage. While placing legitimate expectation at the forefront of this argument, Mr Brown submitted that the consultation of April to June 2005 was inadequate because the decision-maker's mind was already made up.
27. In R (Medway) Council and Others v Secretary of State for Transport, Gatwick Airport  JBC 583, the Department for Transport had initiated non-statutory consultation on the future development of air transport in South East England by the publication of a consultative document. The options described in that document included the expansion of Heathrow and Stansted and the construction of a possible new airport in north Kent, but not extra runway capacity at Gatwick. The claimants, who were local authorities and individuals opposed to the expansion of Stansted or the creation of a north Kent airport, sought judicial review of the exclusion of expansion at Gatwick from the options consulted upon. Maurice Kay J (as he then was) said:
"26. In my judgment, subject to other issues such as those raised by the other grounds of challenge in this case, the Secretary of State was entitled to proceed in that way. Other things being equal, it was permissible for him to narrow the range of options within which he would consult and eventually decide. Consultation is not negotiation. It is a process within which a decision-maker, at a formative stage in the decision-making process, invites representations on one or more possible courses of action. In the words of Lord Woolf MR in Ex p Coughlan  QB 213 at para 112, the decision maker's obligation:
'is to let those who have potential interests in the subject-matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than that.'
I conclude that, absent any other vitiating feature, the Secretary of State did not act unlawfully simply by defining the parameters so as to exclude Gatwick or by holding to that position. That was not an unlawful fettering of his discretion or closing of his mind."
28. The claimants' challenge does not relate to how many options must be put forward for consultation, as their solicitor Mr Buxton makes clear in paragraph 13 of his witness statement. They rely, however, on the reference in paragraph 26 of Maurice Kay J's judgment to the decision-making process still being at a formative stage. In paragraph 28 of Medway, Maurice Kay J considered it
"axiomatic that consultation, whether it is a matter of obligation or undertaken voluntarily, requires fairness."
- a proposition which he said was in the end not disputed in that case and which has not been disputed in the present case. He went on in paragraph 29:
"What, then, is the unfairness which is alleged in the present case? It is submitted that, one way or another, Gatwick will have to be considered in the future and that is obvious. For example, in the event of a future planning application in relation to Cliffe, Medway/Kent, as objectors, would seek to promote Gatwick as an alternative but, at that stage, the metaphorical dice would be loaded against they. They would be arguing against Government policy enshrined in the White Paper.
30. It would be 'very difficult if not impossible' to persuade an Inspector, or even more so, the Government itself, to go against such weighty policy. On the other hand, if they were enabled to make their representations in the course of the present consultation process that would provide the only opportunity for them to be considered on a level playing field. Similar arguments are advanced on behalf of Mead/Fossett in relation to Standsted and, more obliquely, on behalf of Essex. In a nutshell, therefore, the alleged unfairnesses is in being prevented from making representations about Gatwick at a time and stage when the consideration of such representations is not constrained by adopted Government policy.
32. ... It is common ground that the issue of Gatwick will probably re-emerge, if only as a proffered alternative solution. The question really becomes this: knowing that the Claimants will probably and legitimately wish to advocate Gatwick as an alternative solution at a later stage in the decision-making process, is it procedurally unfair of the Secretary of State to operate the consultation process in such a way that the Claimants lose their only real opportunity to present their case on Gatwick without there being in place a Government policy which, realistically, will present them with an insurmountable hurdle? In my judgment, when one considers the decision-making process as a whole, the answer is that to operate the consultation process in that way is indeed procedurally unfair. Accordingly, this ground of challenge succeeds."
29. It is important to note the narrow basis on which the claimants' fairness challenge in the Gatwick case succeeded. Whether and where to expand airport capacity in South East England is clearly a matter of Government policy. So to a lesser extent is whether the A14 in Cambridgeshire should be improved and, if so, whether there should be a bypass to the north or the south of Huntingdon. But whether a southern bypass of Huntingdon should go to the north or south of Offord Hill, while a very important issue for residents of the Offords, is not: see per Lord Diplock in Bushell v Secretary of State for the Environment  AC 75 at 98C.
30. In R (Montpeliers & Trevors Association) v City of Westminster  EWHC 16 Munby J was considering a far more parochial issue. The defendant authority had exercised its powers under section 9 of the Road Traffic Regulation Act 1984 to make an order authorising, for an 18-month period, the installation of barriers preventing the use of two residential squares by through traffic except vehicles owned by residents with permits operating the barriers. An internal report outlined several alternative options but recommended consultation only on those options which involved removing the barriers. The City of Westminster's cabinet member with responsibility for transport accepted the recommendations, thus in effect ordering the removal of the barriers. Munby J, after castigating the defendants for their "utterly lamentable" conduct of the litigation, their "inexcusable" breaches of court rules and for having treated the court and the claimants "in a cavalier and almost contemptuous fashion", upheld challenges based on failure to consult properly, unfairness and breach of legitimate expectation.
31. In paragraph 21 of his judgment he said that in both non-statutory and statutory consultation by a local authority the following principles apply:
"(ii) Consultation must be undertaken when proposals are still at a formative stage, must give sufficient reasons to permit the consultee to make a meaningful response, must allow adequate time for consideration and response, and the results of the consultation must be conscientiously taken into account in finalising any proposals: see R (Wainwright) v Richmond upon Thames London Borough Council  EWCA Civ 2062."
This paragraph is plainly good law, since it quotes almost verbatim from the judgment of Clarke LJ in Wainwright.
32. But in public law context is everything. The defendants' decision announcing a preferred route has yet to be made. There is no dispute that in the context of major highway schemes single route consultation is not unusual; and it has not been suggested to be ipso facto unlawful. The requirement to consult while the proposals are at a formative stage cannot mean that there must be a first round of consultation on whether to reduce the options consulted upon to one, and then a second round of consultation on that one. The claimants and the Offord Cluny Parish Council had the opportunity to make their views known following publication of the CHUMMS report, for example by supporting the preferred plan and advancing arguments as to why it would be right for the route of any bypass to go north of Offord Hill. They also had and took the opportunity during the 2005 consultation to criticise the orange route and propose an alternative. Finally, if the Secretary of State adheres to the recommendation of the orange route, it is almost inevitable that compulsory purchase and/or road closure procedures would generate a public inquiry at which their objections can be voiced and developed.
33. My only concern was with what may be called the "road show" undertaken by Mr Povey in the spring and summer of 2004. It is not mentioned in the statement of facts and grounds nor in Mr Brown's two skeleton arguments, although in oral submissions he described it as one-sided and unfair. I do not, however, consider that it was unlawful for the Highways Agency to meet members of the county council and district councils in the area and to offer through them to meet parish councils and local groups if so requested.
34. In the result, I find that the claimants have not made out any of their grounds of challenge. The defendants' argument that the application should be dismissed on the grounds of delay is accordingly academic. The application for judicial review must be dismissed.
35. MR FORSDICK: I am grateful, my Lord. In those circumstances, my Lord, I seek an order for costs. A costs schedule has been shown to me in parts; it has been the subject of email correspondence this morning. There is an on-going dispute as to -- clearly the sums are out of kilter with what is normally claimed in one-day judicial reviews, therefore I am asking for it to go off to detailed assessment.
36. MR JUSTICE BEAN: Ms Busch, are you content with that?
37. MS BUSCH: Yes, my Lord, if an order for costs is actually made. We do have submissions to make both with regards costs, and so at the permission stage that costs -- start of the hearing that there should be no order for costs at both stages. As to the permission hearing, the point there is simply first of all permission was granted, so in that respect the claimant had been successful at that stage; and in the general run of events a claimant would not have the costs of the permission hearing ordered against them, particularly in circumstances where permission is actually granted.
38. MR JUSTICE BEAN: Is that right, Ms Busch? The respondents attended on the permission application I imagine because interim relief was sought.
39. MS BUSCH: Well, I was instructed there was no application for interim relief.
40. MR JUSTICE BEAN: I see.
41. MR FORSDICK: To be fair we attended partly because it had been adjourned to open court and partly because we were concerned to ensure that every stage thereafter was expedited significantly.
42. MR JUSTICE BEAN: So it was a matter of supporting the application that if the case was to go to a full hearing it should be heard as quickly as possible.
43. MR FORSDICK: Yes.
44. MR JUSTICE BEAN: Yes, I see. Thank you.
45. MS BUSCH: And perhaps the related point was that - again having proceeded on the basis of instructions not having formerly been involved in this case - the claimants were anxious that a permission hearing and substantive hearing should be dealt with in a single session. That also would have produced a saving of costs and I understand that was not -- I believe that suggestion was not responded to by the claimants, certainly not agreed to by them.
46. MR JUSTICE BEAN: I suspect, even if they had, the court would have said that they would not give the full day that would be necessary, except by order of a judge who had known enough about the case to conclude that it should go forward. But I take your point about the defendant's attendance being in effect voluntary.
47. MS BUSCH: Thank you. As to the substantive hearing itself, we rely to an extent on the conduct of the defendants in the present proceedings and in particular upon the failure to respond to the first letter written by Mr Buxton, to which you referred in the course of your judgment. And also failing to respond to the letter for claim as matters which are relevant to take into account in exercising your discretion as to costs.
48. But the main point, my Lord, upon which my submission that the appropriate order in this case is that there should be no order as to costs, is in effect public interest argument. That is to say the individual claimants in this case plainly had interest themselves in the outcome, but more important consideration in my submission is the fact that they were effectively acting on behalf of not merely their interests but firstly the broader interests of other members of the area who are affected by the development; and yet more importantly, but still a broader public interest, in ensuring that decisions made by public authorities with respect to the environment are made in a transparent and fair manner.
49. Now plainly, my Lord, if I am up against claims on the (inaudible) grounds of challenge. But in my submission that does not affect the general point that persons such as the claimants should be able to air quite plainly genuinely legitimate and arguable concerns about decision-making processes that will affect the abroad environment in the courts without necessarily facing potentially oppressive costs bill, that is plainly consistent with -- I do not want to take my Lord to authorities as such, but it is consistent with the legislation from -- European legislation, which obviously encourages environmental decision-making to be both transparent and fair and also made in accordance with a process in which the public can participate without suffering prejudice.
50. So, my Lord, in all of those circumstances, and given a related point about the relative power and resources available to the claimants on the one hand and the defendant government department on the other, I do submit the appropriate order in this case as regards to the substantive hearing is no order as to costs. Those are my submissions.
51. MR JUSTICE BEAN: Mr Forsdick?
52. MR FORSDICK: My Lord, I accept that on the permission the attendance of the Secretary of State at the permission stage was voluntary in the sense -- in the case law. My Lord, just for my Lord's information, we did not consent to the rolled-up hearing because we could not get a slot in the court. In reference to the conduct of the defendant, there was delay in response to the letter before claim, but the grounds of opposition that have been put in in time within this claim set out the broad framework which I then pursued before your Lordship. So even if there was any prejudice to the court, I say at the earliest stage if I am not responding to the letter before claim, any such prejudice is remedied by the points of acknowledgment of service. And in terms of the knockout -- any costs of public interest point as I understand it - and this is not a point I have had an opportunity to research this afternoon - but as I understand it the starting point is that costs should follow the event, and they should only not do so if the Corner House principles are met. And my learned friend has to explain in detail how the principles in that case are met; and, as I understand it, she has to do so in advance of the hearing so as to put the Secretary of State on notice that it is a public interest case where costs may not follow the event. As I understand it, the general process is that one makes an application to the court at the stage of permission application.
53. Now I cannot give my Lord chapter and verse on that because I did not realise the point was going to be raised until a little while before I came into court. But my learned friend simply has not explained how Corner House principles would be met in any event.
54. MR JUSTICE BEAN: Do the notes to Part 54 give us any help?
55. MR FORSDICK: I am afraid I have only brought over the 2004 up-to-date version, which is a big failure on my part... (After a pause) My Lord, those instructing me just handed me a note as to protective costs orders in judicial review proceedings which is the Corner House, and that is effectively what is being sought today - and Dyson J's most exceptional circumstances directions are upheld by the Court of Appeal. The criterion was that the court should must be satisfied that it had sufficient appreciation of the claimants' merits to conclude it was in the public interest to make the order, real as opposed to fanciful prospect of success ---
56. MR JUSTICE BEAN: Is that in relation to pre-emptive orders?
57. MR FORSDICK: Yes, I am not suggesting ---
58. MR JUSTICE BEAN: Well you rightly say no pre-emptive order was made, but Ms Busch is not relying on that. She is saying nevertheless there should be no order as to costs because of disparity of resources and the need to see that decisions about the environment are made in a fair manner. So I think that is the point you have to deal with.
59. MR FORSDICK: My Lord, if that point is going to be pursued I would ask that it be pursued in a more argued way than simply by being raised at this stage. It is a point of principle which clearly those behind me would be concerned about. And I say as a matter of general principle costs follow the event unless there is an exceptionally good reason why not; and there is nothing in the law, European law or the Human Rights Law, that requires people to come to court for free if they are not entitled to CLS funding. So I respectfully submit that if my learned friend wishes to pursue this point she should be asked to do so through a written submission to my Lord and myself being given an opportunity to respond.
60. MS BUSCH: I fully take my learned friend's points as to that. I do say it is in itself an important point and certainly those behind me would be more than willing to proceed on that basis.
61. MR JUSTICE BEAN: I think that would be sensible. Mr Forsdick is entitled to complain that he cannot be expected to respond to this on the hoof, and if you would like to cite chapter and verse then of course I will read chapter and verse and he must have an opportunity to respond.
62. I will invite submissions on costs from your side, Ms Busch, within seven days and Mr Forsdick within a further seven days and then I will give a decision in writing on costs.
63. MS BUSCH: I am very grateful my Lord, thank you. I also have an application to make for permission to appeal. We do say that this is a case in which it is appropriate to grant permission, that the appeal both would have reasonable prospects of success and the reasons why it should be allowed to go to the Court of Appeal. I rely in particular on two issues, the first issue concerning the significance with respect to legitimate expectation of -- the documents in this case were not in the public domain and whether or not they could be relied on as contributing to -- and this a legitimate expectation. I say first of all that is an important point of principle which would be appropriate for the Court of Appeal to consider; and secondly that there is evidently argument and the case would have realistic prospects of success. And then the second issue which I -- the same points concerns that the question of whether or not the environmental impact report that is produced ought itself to have been put into the public domain before consultation or whether it was permissible for the defendant to retain it as an internal document. As I say again that is an arguable point.
64. MR JUSTICE BEAN: It may have been arguable but I do not think it was argued.
65. MS BUSCH: I beg your pardon, my Lord. I believe it was in the skeleton argument. Whether or not it was dealt with in oral submissions I am not in a position to say, but certainly the first point is as I say one that it would be highly appropriate for the Court of Appeal to consider.
66. MR JUSTICE BEAN: Do take instructions, Ms Busch. Do not feel inhibited.
67. MS BUSCH: My Lord, I am helpfully reminded that in so far as the second point is concerned even if it was not argued that the court nevertheless has a duty to consider it, being a point -- environmental law deriving from European Directives in the case of (inaudible).
68. MR JUSTICE BEAN: Ms Bush, can you with Mr Buxton's assistance direct me to the passage in Mr Brown's skeleton arguments which argues this point?
69. MS BUSCH: My Lord, the point is alluded to in paragraph 39 of the skeleton argument. In particular it said at the beginning: "It is apparent..." The last sentence. So on these two bases I respectfully request that permission to appeal should be granted.
70. MR FORSDICK: My Lord, I do not really intend to make any detailed submissions save to the point on the ES and duty to apply European law was raised as accurate matters but background. It was not used as a self-standing legal ground of challenge. Unless I can assist my Lord?
71. MR JUSTICE BEAN: No. Ms Busch, I am not prepared to grant leave to appeal. The point which you have just made about the European Directive was not made by Mr Paul Brown in his extensive and persuasive oral submissions and, even taking a magnifying glass to paragraph 39 of his skeleton argument, I do not think I find it there.
72. As to the main ground of founding a legitimate expectation on documents not in the public domain, I think even if such a point can be established in principle, this case is very fact-specific and I must leave it to the Court of Appeal, if your clients see fit to make an application to them, to decide whether they wish to take the case.
73. MS BUSCH: My Lord, so far as the last matter is concerned may I ask first that the transcript of your Lordship's judgment be expedited, and, secondly, that you might give 14 days after receipt of the transcript within which to apply for permission to the Court of Appeal if so advised.
74. MR JUSTICE BEAN: Mr Forsdick, do you oppose that?
75. MR FORSDICK: I do not oppose it, but I do not understand that this court has the jurisdiction to grant what is being requested. As I understand it, the Court of Appeal has stated that they (inaudible) extend time for compliance with the rules. I may be wrong on that but that was my understanding from a previous case. Perhaps my Lord could grant it and if it is not effective then my learned friend will have to speed up.
76. MR JUSTICE BEAN: I will just take a moment to see if I can find the answer. (Reading from the White Book) "The appellant's notice must be filed within such period as may be directed by the lower court, or, if no such direction is given, 14 days after the decision" - Rule 52.4.2. So I will say that the claimants may have until 14 days after the dispatch by the court office or my clerk of a transcript within which to file an appellant's notice seeking permission to appeal to the Court of Appeal. I order an expedited transcript.