Ware v Neath Port Talbot County Borough Council

Transcript date:

Tuesday, February 3, 2009



Court of Appeal

Judgement type:

Part 52.17 re-opening application


Sir Paul Kennedy

Case No: C1/2007/0789 (A)

Neutral Citation Number: [2009] EWCA Civ 246

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 3rd February 2009



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Mr D Wolfe (instructed by Messrs Richard Buxton) appeared on behalf of the Appellant.

Mr R Mallalieu (instructed by Neath Port Talbot County Borough Council) appeared on behalf of the Appellant.

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(As Approved by the Court)

Crown Copyright© 
Sir Paul Kennedy:

1. This is an application to reopen the decision of the Court of Appeal in relation to the issue of costs The applicant, Mrs Ware, is or was at the material time the secretary of Cilfrew Residents' Association, Cilfrew being a village in South Wales. She was concerned about the legal propriety of the decision of the planning committee of Neath Port Talbot County Borough Council made on 19 September 2006, when by a narrow majority approval was given to an application by the National Grid to develop a pressure reduction station on land to the north of Cilfrew. Mrs Ware believed that certain councillors had been wrongly advised by council officials as to the propriety of their taking part in the discussion and in the decision, and that as a result they did not take part and the vote went narrowly in a way which was not the way that she would have wished it to go.

2. On 4 October 2006 she sought judicial review of the county council, the target being the activities of the council officials. On 30 March 2007 she succeeded in the Administrative Court. The judge quashed the planning consents and required the council to pay Mrs Ware's costs. The council then appealed; but before the appeal was heard the planning committee on 15 May 2007 gave fresh consents. On 27 November 2007, when the appeal was called on, Mr Wolfe on behalf of the respondent submitted that in the light of the fresh consents the appeal was now academic. Mr Porten QC for the council disagreed. He pointed out that the judgment was critical of the council officials, and if it remained in place that criticism stood. In the event the Court of Appeal, consisting of Mummery, Dyson and Wall LJs, decided to hear the appeal and allowed it on 18 December 2007.

3. As usual, the order then was that costs should follow the event; in other words, the council recovered its costs of the appeal and of the proceedings below. It is material to observe that, for some of the time at least, Mrs Ware had the benefit of public funding, and that has caused some difficulty. There was to be a hearing on 21 April 2008 before Master O'Hare, but on 1 April 2008 that hearing was vacated with liberty to apply. And on 9 April 2008 the council, having obtained some costs from the Legal Services Commission, produced a fresh bill of costs seeking the sum of ₤17,850.80. There was further exchange between the parties, and on 15 October 2008 Mrs Ware made the application which brings the matter before me, seeking to reopen the order of 18 December 2007 in relation to costs, some ten months after it was made.

4. It is not altogether clear from the papers, or indeed from the submission of Mr Wolfe made today, as to why this application should have been made, and certainly why it should have been made at this time. Part of the complaint seems to be that the council's claim was too large. That is plainly a matter for taxation, if it be appropriate. Part of the claim seems to be that this could fall within the ambit of the Arhaus Convention, and that in the circumstances no order for costs at all should have been made. It is said that there is another division of the Court of Appeal at the moment considering that Convention in relation to another case.

5. That may be, but on the face of it, it is impossible for me to see how the Arhaus Convention has any application to the sort of litigation which I have briefly outlined. What I have to consider are the provisions of the Civil Procedure Rules Part 52 Rule 17. The relevant part reads thus:

"(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless -

(a) it is necessary to do so in order to avoid real injustice;

(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and

(c) there is no alternative effective remedy."

6. I cannot for my part see anything which persuades me that at this stage it is necessary to reopen the decision in relation to costs in order to avoid real injustice. If at some stage an order for costs is sought to be enforced against Mrs Ware personally, and she is not able to comply with it, then of course there are remedies open to her, as Mr Wolfe recognised, not involving bringing the matter before this court. The circumstances do not seem to me to be exceptional, making it appropriate to reopen the appeal; and as far as I can see from the complaints which she has, there are other effective remedies.

7. This is to my mind a completely misconceived application at this stage. What concerns me is that if Mrs Ware were a privately-funded litigant, she has been encouraged to make an application, it would seem, in respect of which costs are likely to fall on her; and I regard that as a matter of real concern.

8. So far as I am concerned, this application has no merit and it is refused.

Order: Application refused.