Neutral Citation Number:  EWHC Admin 1075
IN THE HIGH COURT OF JUSTICE CO/2812/2000
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Monday, 10th December 2001
B e f o r e:
MR JUSTICE NEWMAN
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THE QUEEN ON THE APPLICATION OF
ST EDMUNDSBURY BOROUGH COUNCIL
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(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
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Official Shorthand Writers to the Court)
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MR R McCRACKEN (instructed by Richard Buxton, 40 Clarendon Street, Cambridge CB1 1JX) appeared on behalf of the Claimant.
MISS G CARRINGTON (instructed by St Edmundsbury Borough Council, Legal Services, Borough Offices, Angel Hill, Bury St Edmunds, Suffolk IP33 1XB) appeared on behalf of the Respondent.
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J U D G M E N T
(As Approved by the Court)
Monday, 10th December 2001
J U D G M E N T
1. MR JUSTICE NEWMAN: In this application for judicial review the applicant desires to withdraw and therefore seeks an order permitting withdrawal of the proceedings, but she asks that she be permitted to withdraw on terms that the respondent/defendant council, St Edmundsbury Council, should pay the costs.
2. The chronology, which it will be necessary for me to refer to in this judgment on the issue of costs, extends from the action taken by the Council to grant conditional planning permission to Greene King plc on 11th July of last year, through to 5th April of this year, when the planning committee revisited the Greene King matter, and by its decision then undoubtedly rendered any further judicial review proceedings academic.
3. The matter I have to resolve or the issues I have to resolve by reference to the facts concern the shifting positions and stances taken between those two dates. It can be said, and Mr McCracken in my judgment was correct when he submits this on the material before the Court, that it was not until the applicant was possessed of the report from the planning committee meeting on 5th April 2001 that it became clear that some of the grounds upon which the judicial review proceedings had been based, those proceedings being issued on 5th August of last year, had been recognised as being well based. Thus, I must trawl between those two dates in order to see, in accordance with Civil Procedure Rules Part 44.3, how this issue of costs should be resolved. My attention of course has been drawn to the Civil Procedure Rule and counsel have helpfully provided me with such cases as bear upon the application of the very general rule and how the discretion of the court should be approached.
4. I do not intend to lengthen the judgment by reciting the rule in extenso. It confers the discretion and it requires, in deciding what order, if any, to make, that the court have regard to all the circumstances, including the conduct of all the parties and whether a party succeeded on part of its case even if he has not been wholly successful and so forth. The conduct of the parties includes conduct before as well as during the proceedings, and in particular the extent to which the parties followed any relevant pre-action protocol. It includes, too, the manner in which a party has pursued or defended his case on a particular allegation or issue according to the cases.
5. In a judgment dated 21st December 2000, Scott Baker J had occasion to look at a number of earlier cases to see how, in judicial review proceedings, issues as to costs should be resolved, he considered the matter and extracted a number of very general principles, which are in his judgment in the transcript. They are loyally set out in the notes in Volume 1 of Civil Procedure Autumn 2001 Edition, page 797 running through to the top of page 798.
6. Those principles are not in issue. The applicability of them to the particular facts of this case is not direct. This is not a case in which, in my judgment, the relevant considerations are particularly reflected or thrown up by the general approach. It is not in dispute that in a discretion case, in connection with costs, the result is to be determined by the particular facts of the case, having regard to the fundamental objective, which is to do justice between the parties.
7. One has to say that the jurisprudence of this particular court contains an obvious recognition that, so far as a public authority is concerned, there is a general public interest in that authority being in a position to respond to a threat of a claim for judicial review, or with the issue of judicial review and the nature of the claims in the proceedings so that it can avoid the threat of the proceedings, without the expense of proceedings and the consequent delay, by an expeditious and common-sense route of unravelling the differences between the public authority and the applicant.
8. As Simon Brown J (as he then was) states in the case of R v Liverpool City Council, ex parte Newman and others  5 ALR 669, there may be any number of ways in which a public authority faced with a threatened or actual challenge might respond. He ventured two examples. The local authority, which recognises a high likelihood of a successful challenge, and then acts to preempt the challenge, for example by agreeing to make a fresh decision, could by such action open itself to pay all the costs. By way of other example, a respondent sensibly deciding to short circuit the proceedings, to avoid expense or inconvenience or uncertainty, without accepting the likelihood of success, he suggested should not be deterred by taking such a course, and if the court was to make the authority liable for costs, it might deter the course being taken.
9. It is, of course, a feature of challenges to the decisions of authorities that decisions under challenge can simply be reconsidered and the challenges can be rendered academic. Indeed it may be that in a particular case the offer of reconsideration will be as much as could have been achieved in the proceedings themselves.
10. That is probably enough by way of background by reference to the law and the cases, save for one particular point which has been made on behalf of the Council by Miss Carrington, namely this is a case in which there has been no letter before action. As a result, she founds quite an important part of her submissions on that starting point and submits that consequences should flow from that. The consequences, she submits, are really plain under the Civil Procedure Rules. Failure on the part of a litigant, before issue of proceedings, to serve a proper, fully-argued letter before action should give rise to a liability in costs.
11. The consideration, of course, in this court which is material and operates in conjunction with that, is the requirement that anybody challenging a decision must so do promptly, and in any event within three months: see the decision of the Court of Appeal in planning matters embodied In the Matter of an Application by Robert and Sonia Burkett  JPL 775.
12. With that, I now turn to the facts. On 19th May 2000 the planning committee of the St Edmundsbury Borough Council resolved to grant planning permission, on an application made by Greene King plc. It related to an access road running between Cullum Road in Bury St Edmunds in Suffolk and the brewery site of Greene King. The proposed road would cut across an area of open land forming part of the River Linnit flood plain. It would have required a bridge over the river and in an area designated as a Local Wildlife Site. It was meadowland with notable wildlife.
13. In particular, the complaint and concern of the applicant was that the environmental statement which Greene King had prepared was inadequate. It was inadequate in a number of respects, but in particular it failed to deal with the burrows of water voles, with any sufficient degree of certainty, or make provision for the possibility that such habitats would be disturbed. Also a similar complaint could be directed at its treatment so far as great crested newts were concerned. The resolution of the planning committee on 19th May was, of course, subject to the decision of the full committee of the Council as to whether or not planning consent should be granted, and that did not occur until 11th July of last year. So far as the applicant was concerned, correspondence was entered into after the decision of the full Council.
14. On 17th July 2000 Richard Buxton, solicitor for the applicant, wrote, saying that there were serious concerns about the way the decision had been reached. Counsel's advice was being sought and they would hope to contact again shortly if judicial review proceedings were in prospect. The initial position was that they were. The letter was almost, if I might say, a courtesy letter, insofar as it was giving notice that these matters were under consideration. It did not, of course, set out any grounds. But it received a pretty early response from the Borough Council, expressing concerns that there may have been faults in the decision making or that there was a belief that there were. The letter of 3rd August went on to state:
"As the decision has not yet been issued, it may be possible for us to take steps to rectify those alleged faults if we are made aware of them. If the situation is capable of resolution without resort to Judicial Review, then this is an avenue which should be explored."
15. Nobody coming to that correspondence could be of any view other than this was a completely reasonable response on the part of the Borough Council to what at that date had merely been an intimation of the possibility of judicial review. It was a letter, according to the statement of Miss Bowe, the legal officer for the defendant, driven by a desire on her part, on behalf of the Council, to avoid judicial review proceedings, the Council having suffered at the hands of previous proceedings to the tune of a bill of costs of £27,000.
16. Obviously, by 3rd August there was a need for the Council to know what the grounds were going to be. Identification of the alleged defects was required. As I have said, there is a countervailing consideration, which is at play in matters such as these, and that is the obligation on the part of the applicant to move with promptitude. So on 5th August the Council's letter was replied to, but on that day also these judicial review proceedings were commenced by way of an application for permission.
17. It is convenient if I pause to consider the complaint Miss Carrington makes about the absence of a letter before action. Well, a letter before action there had been, but a letter before action disclosing the grounds there had not been. By 3rd August the Council were, as I have indicated, acting perfectly reasonably and nor were they at that stage, as I conclude, in any way particularly inconvenienced by not knowing what the grounds were. They were anxious to know them so that they could resolve the matter without resort to judicial review. The countervailing position was that the applicant was up against time running from the decision, because if the decisions was to be regarded as a decision reached in May, the applicant was already in difficulty. So Mr Buxton was grateful for the tone of the response and stated:
"On the other hand, ever mindful of the dangers of not actually issuing a challenge in time, I have lodged an application on a protective basis. A copy is enclosed..."
18. I am unable to accede to any suggestion that the applicant, by her solicitor, at this time was behaving unreasonably in issuing the papers in order to make a claim for permission to lodge a claim. It was expressly stated to be on a protective basis. In my judgment, a sensible course to take having regard to the principles at play. By the time they received the papers, of course the Council were then in a position to know what the grounds were, and if they desired to resolve it without resort to judicial review, then they had the information to come to such a decision.
19. Of course, the matter once into the court system had to be considered on paper, and it was considered on paper by Keene J (as he then was) on 25th October last year. He was obviously mindful of the correspondence, and in particular the letter of 5th August, and the matter was adjourned into open court for the respondents to appear. The next letter of significance, which adds to the decision of Keene J is a letter of 26th September 2000, addressed to the Court from the Borough Council. As I indicated in the course of argument to Miss Carrington, I have difficulty in understanding now what this letter should be interpreted as saying. It is a letter which asks the Court Office to bring the matter to the attention of the judge who is to consider the question of permission. It states:
"The applicant's solicitor is aware that planning permission has not yet been issued. He acknowledges this in his witness statement. However, the grounds of challenge refer in part to alleged breaches in the planning process, whereas these 'omissions' are steps which have not yet taken place simply (and correctly) because planning permission has not yet been issued."
20. I accept the interpretation of the thrust of that from Miss Carrington, and that it is directed to the reasons challenge which was contained in the papers. Because the decision had not yet been issued and the planning permission had not been issued, the reasons were not yet available. That is what that paragraph is saying. Therefore, this application, so far as it is posited upon that ground, is premature. The letter then goes on to say:
"The other grounds of challenge are, in our view, capable of being considered and, if appropriate, acted upon before the issue of planning permission. For these reasons we have asked the applicant's solicitor to request that the Judicial Review proceedings be held in abeyance whilst the Council takes independent professional advice on these matters."
21. That is a paragraph in respect of which, again, I accept the interpretation given by Miss Carrington. It is directed to what one might describe as the environmental aspects of the challenge. The request is that judicial review proceedings be held in abeyance, leaving the matter open, I assume, to the judge, when looking at the matter on paper, to decide whether or not to adjourn the application for permission or to grant permission but put a stay on the grant of permission until developments occur.
22. As it happens, as we know and I have already cited, Keene J took the other course (it is a convenient one), and adjourned the application for oral hearing in order for the information to be given then. The last paragraph, which I will not read in extenso, then leaves it to the judge to determine the timeliness of the application, namely whether judicial review should have been sought in relation to the May decision and not the July one.
23. It seems to me that at this time it would have been rather more helpful if the position of the Council could have been made clearer, but I do not wish to be taken to be deciding this part or this stage of matters purely on the construction of the style of the letter in question. It is sufficient that at this stage the Council were obviously seriously considering taking professional advice on the environmental aspects of the challenge which it was suggested could lead to the judicial review proceedings being unnecessary.
24. The court took that bait, if I may say that, about Keene J's interim decision, by saying, well, let it go to open court and let us know what the position is then. But In a letter of even date to Mr Buxton, the position was a little more robustly stated. It stated:
"Independent professional advice is being sought regarding these other matters [that is the environmental ones] and that advice will be taken into account before any final decision on the application is made."
So the Council is there saying we have not yet made a decision, but we are taking steps with a view to making a decision; in the meantime, we suggest, because we are taking up this position, that the proceedings should be in abeyance. Well, as I say, they were, in effect, in abeyance for some time because it took the usual period of time for the papers to get before the single judge. In the meantime, I only point out that it is plain that Greene King had solicitors acting and were aware of the proceedings.
25. Thereafter, the question of the hearing date for the oral hearing arose, and the hearing was set for 14th December. On 6th December the Council wrote to Mr Buxton:
"The Council's current position is that, having now received and considered a consultant's report into the environmental information provided with the Greene King planning application, we have decided that the application will be referred back to Planning Committee for further consideration.
In the meantime, the planning consent which the Committee previously resolved to grant will not be issued.
It remains open to Greene King to take the matter to Appeal on the basis of non-determination, but we are not aware at present that they are intending to do this."
So these points emerge from that letter: the clear statement, according to this letter "we have decided that the application will be referred back to Planning Committee for further consideration", and the position being that Greene King could take the matter to the Secretary of State on the basis of non-determination in the light of the intimation of judicial review proceedings. One should not speculate, but had that course been taken, I would have thought the judicial review proceedings would have been a very weighty consideration for the Secretary of State to have in mind. The letter that produced a response of Mr Buxton, on 11th December:
"(a) What resolution the committee will be invited to consider. Please advise what this will be.
(b) What analysis and recommendations from Officers will be before the committee. Please send us a copy of the committee report.
(c) What the environmental consultant's report says. Please send us a copy."
That letter produced what can only be regarded as a somewhat confusing response. The letter of 12th December from the Council in response stated:
"What will happen is that officers will meet representatives of Greene King plc in early January to discuss the Consultants' report and the recommendations made therein regarding the Environmental Statement. Thereafter it will be for Greene King to decide in what way to respond to those recommendations and the matter will be brought back to Committee when Greene King have taken whatever steps they feel are appropriate.
Pending that return to Committee, the planning permission will not be issued.
As I indicated in my last letter to you, Greene King could decide that they do not wish to add to their environmental information, but instead, take the matter to appeal for non-determination.
I consider that your application for Judicial Review could achieve no more than the Council is already offering to undertake. Should you proceed, the Council would strongly resist any application for costs."
26. That, I conclude, was an overstatement of the position. It was simply not right to suggest that no more could be achieved in judicial review proceedings than had been undertaken. One has some doubt and hesitation in placing too much weight on the word "undertake", because it is apparent from this letter, and even more apparent from subsequent letters, that if they were simply undertaking to act in response to what Greene King wanted to do, by way of making further representations or giving further consideration to environmental matters at another hearing, it was not much of an undertaking on behalf of the Council. True it is the Council were locked in a position where potentially they could be at the suit of Greene King as well the applicant.
27. But in my judgment, if the Council thought that all that could come out of the judicial review then before the court for permission, was that, if permission was granted, the review itself would only lead to the state of play on 12th December, it was wrong. The grounds, if established, could lead to the decision to grant planning permission reached by the Council in full committee in July, confirming that which had been reached by the committee in May, being flawed for the environmental reasons given ultimately in the report which came before the committee in April of 2001. The decision would be quashed, and there would be a direction for reconsideration. At this stage the applicant had neither an undertaking to quash nor an undertaking that there would be reconsideration.
28. That this was the true position can be confirmed if one now jumps forward. On 14th December the permission application was adjourned again, and I go forward to 12th February 2001, when the Council wrote again:
"I understand that the adjourned Hearing in this matter has been set down for 22nd February.
The Council holds to its view that there is no point in this Judicial Review proceeding because Messrs Greene King are considering their position following receipt of a Consultant's report prepared on behalf of the Borough Council. Should Greene King submit further environmental information in response to that report, the matter would be taken back to Planning Committee. In the meantime, Planning Consent remains unissued.
I have taken the precaution of instructing [counsel] to attend Court on 22nd February, should this matter proceed but I hope you could agree to withdrawing your client's application, because it is, as the Council has always said, premature."
29. Well, there the head of legal services was firing as many arrows in relation to the attack which she could, but on the essential matter it is perfectly plain that the position being adopted by the Council was that it was for Greene King to decide whether it was going to go back to committee, and, if it did, it would obviously go back to committee. That was not what the applicant was seeking from the judicial review proceedings. It was asking for the relief I have already referred to.
30. There was a response to that on 19th February, and the time point was taken and reference was made to Burkett , the case to which I have already referred, this being a decision before the adjourned hearing. It stated:
"The Council still considers that your application for Judicial Review is entirely academic and that you should either adjourn the present application indefinitely or withdraw your claim. However, appreciating your concern regarding the implications of the Burkett case we undertake that, if you adjourn or withdraw as we suggest and later seek to revive your case with reference to the Planning Committee's resolution on the 19th May, whether through a new application or by resuming the current one, we would not take any point on time.
With this comfort, we see no reason why you should continue to progress the present application and hope to hear from you as soon as possible in this regard."
31. Well, that was indeed some form of comfort, but it was not, to any certain extent, an acceptance or substantial concession on behalf of the Council. The position really remained very uncertain. All they were saying was, we will not take the time point if you want to bring this back again. One asks, well, why should the applicant at this stage agree to withdraw the claim or adjourn it indefinitely on some promise that in the future you can start it up all over again? What is the point of that? And why, at the threshold, as they were on the 22nd of February, of being able to obtain the grant of permission, should they not go ahead with it? And so they did. The application was heard by Scott Baker J, counsel on both sides appeared, and the position taken by the Council was to make no submission on the merits but to seek an adjournment of the permission application in the light of the circumstances then prevailing.
32. The learned judge did not accede to that. He granted permission. Mr McCracken rightly points out that, in granting permission, the learned judge must have been satisfied as to the arguability of the grounds. The Council chose not to advance submissions on the arguability of the grounds, and it must have been well known to counsel at that time that if the judge granted permission, it would be upon the basis that he was satisfied that there were arguable grounds for judicial review. They made no concession. True it is. That is why, no doubt, on 1st March 2001 the Council wrote, through their head of legal services:
"I note that, in granting permission, His lordship froze the Judicial Review process until late April.
The Council does not concede that the Applicant has an arguable case; should its position later be vindicated, representations will be made regarding costs."
The matter, in my judgment, had passed that stage. There were, as the learned judge is to be taken to have held hold, arguable grounds for the judicial review. Next we reach a stage in April, as I have already said, when the matter becomes truly academic.
33. Miss Carrington, as I have indicated, made various submissions. In deference to her argument I shall summarise them. Firstly, she says there was no proper letter before action and that this must have a cost consequence. Secondly, she submits the Council expressed its willingness to address the matters which had been raised. Thirdly, that once proceedings were issued, they did not make any concession, but they indicated that the matter would be referred back to committee. Fourthly, that the Council took independent professional advice in the light of the challenges which were made. Fifthly, that the Council were hopeful that the application would be proved to be unnecessary and that it was a matter for Greene King and the information from Greene King which was made available and which they required for a response. She submits that, sixthly, on the hearing before Scott Baker J, there was no application, no argument on the merits, and that it was the applicant's insistence that should be focused upon at that hearing.
34. She submits that applying the principles and having regard to conduct, this is a case in which there should be no order as to costs; alternatively, some other form of order which reflects the conduct, which is other than that which is requested by Mr McCracken on behalf of the applicant, which is that the Council should pay the applicant's costs, which are estimated as being in the region of £17,000.
35. Mr McCracken submits that, apart from the matters to which I have already drawn attention in the sequence and chronology of events, this is a case in which this Court should form a broad view of the merits of the matter and put that into the balance. Further, one can be satisfied that a broad view of the merits in this case is borne out by the subsequent course of matters at the hearing in April, all pointing to this being an application which had a high probability or some significant prospect of success. It was not just arguable. He submits that this is not a case in which the Council has acted in a way to avoid costs, and nor has it acted in a way to take up a reasonable position in the context of this litigation, reasonable in the sense that it sufficiently recognised the interests of the applicant in the proceedings, the applicant's interest in having to issue proceedings, and the reasonableness of the applicant's response to what the Council was offering.
36. I accept his submissions, and indeed it is implicit in what I have done by way of survey of fact that I have concluded the Council did not make its position sufficiently clear. Indeed, on one view the Council manifestly changed its position. I do not think that the applicant or the applicant's solicitors were ever in a position to understand what it was that the Council were intending to do. In a sense the Council were, in my judgment, probably dancing on the fence, dancing on the fence in the hope that they might avoid having to become involved in judicial review because of the posture or stance it had taken and avoiding Greene King taking proceedings against it by acceding to or coming to some form of accommodation in the planning application.
37. In my submission, there were a number of occasions, including in particular the failure to make plain what its intention was, and then in adopting the position it did on 22nd February when the matter was before Scott Baker J, where the Council misjudged the proper approach to be taken. I am satisfied, having regard to the course of the conduct of the parties in this matter, and having regard to the justice of the case, that this application for judicial review and the application for permission which preceded it was one which was taken in a sufficiently timely way for the applicant not to be criticised, was taken in a way which, in my judgment, was practical and necessary; and having regard to the understandable but nevertheless at some point ambivalent position that the Council adopted, I am satisfied that it was a very important step for them to have made the application, and even more than that, that it was an important application to maintain.
38. The grant of permission being in February in my judgment cannot be simply viewed as having had no consequences upon the subsequent course of events. It is unnecessary for me to conclude directly, but in my judgment the way in which this matter was pursued was timely, sensible and tactically advantageous. The submissions of Miss Carrington do not persuade me to reach any other conclusion than that the applicant is entitled to the costs of these judicial review proceedings.
MR McCRACKEN: My Lord, I am very much obliged, and I would ask therefore for an order that the claimant be permitted to withdraw the claim, that the claimant have costs of the proceedings, including the costs reserved by Scott Baker J at the permission stage. I think notwithstanding the judgment that your Lordship has delivered, I think I need formally to ask for a legal aid assessment as well, and therefore I do formally ask for that, although it may be somewhat academic.
MR JUSTICE NEWMAN: Yes.
MR McCRACKEN: I am very much obliged to your Lordship.
MR JUSTICE NEWMAN: Yes. Is it an assessment case or what? How are we going to deal with it?
MISS CARRINGTON: We have not been served with a schedule in the CPR form.
MR JUSTICE NEWMAN: No.
MR McCRACKEN: No. This is a matter that Mr Buxton and I had some discussion about. Because my client is legally aided, we cannot serve a schedule. Otherwise, we would have served a schedule. So unfortunately, it is a matter that in respect of which the quantum will need to be assessed by the usual means, if agreement cannot be reached.
MR JUSTICE NEWMAN: All right. Thank you. You cannot resist that, I take it?
MISS CARRINGTON: My Lord, in principle, no. I have two applications. The first is, leafing my way through the White Book, trying to find out what the position is these days with regard to appeals against costs orders, it used to be the position you could only appeal them if you had a point of law, and very briefly I say I have two. The first concerns the proper approach to cases where no or no proper letter for action has been sent; and the second concerns the application of the Boxall and Newman principles in relation to this particular case.
So I raise that now at this stage in case I need permission, which I think I probably do.
MR JUSTICE NEWMAN: Do you want to say anything?
MR McCRACKEN: My Lord, no.
MR JUSTICE NEWMAN: You must take your chance in the Court of Appeal. I do not consider that any point of law emerges in this case. Thank you both very much.