Neutral Citation Number:  EWHC Admin 905
IN THE HIGH COURT OF JUSTICE CO/1543/2001
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Thursday, 18th October 2001
B e f o r e:
MR JUSTICE OUSELEY
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Application for Permission
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Computeraided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 0207421 4040/0207404 1400
Fax No: 0207831 8838
(Official Shorthand Writers to the Court)
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MR R HARWOOD (instructed by Richard Buxton, 40 Clarendon Street, Cambridge, CB1 1JX) appeared on behalf of the applicant
MR R TAYLOR (instructed by Oxford City Council Legal Services, The Town Hall, PO Box 1191, Oxford, OX1 4YS) appeared on behalf of the respondent
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J U D G M E N T
(As approved by the Court)
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1. MR JUSTICE OUSELEY: There is before the court a renewed application for permission to apply for judicial review which has been ordered to be heard at the same time as the substantive application should permission be granted.
2. The claimant in these proceedings is a resident of Oxford who lives close to Headington Road and is also the Chairman of a local residents' association. On 26th January 2000 the defendant, the Oxford City Council, granted planning permission and listed building consent for works of refurbishment to a listed building known as Hill Top House within the Headington Hill Conservation Area, and for the erection of a development comprising five mews houses in the grounds of Hill Top House. It is the grant of planning permission which is challenged.
3. The essential ground of challenge raised by the claimant is that the City Council, in determining the planning permission, failed to have regard to a material consideration. That material consideration was the policy statement of English Heritage entitled "Enabling Development and the Conservation of Heritage Assets". This was said to be a material consideration because the mews houses were put forward as enabling development in relation to the refurbishment of Hill Top House because they would assist in financing the extensive works of refurbishment.
4. It is important to note at the outset that whilst the word "enabling" may be used by planners in a loose sense to connote a financial link between one development and another, for the purposes of English Heritage's policy "enabling development" has an additional requirement: it has to be development which is not acceptable in its own right. If it is acceptable development in its own right, the fact that it may bring about the financial means whereby some other desirable development can be achieved is but an additional benefit. However, consideration of the English Heritage policy only arises where the financially rewarding development is not itself acceptable in planning terms.
5. Accordingly, so far as the merits of the argument are concerned, the issue was whether the City Council had concluded and approached the planning permission on the basis that it found the mews houses themselves to be unacceptable and only acceptable because of the financial impact which that development would have on the refurbishment of Hill Top House. If, on the other hand, the local authority concluded that the development of the mews houses was acceptable in its own right, there would be no need for them to consider the English Heritage policy. It was common ground that the English Heritage policy statement was not considered by the Council when dealing with the planning permission.
6. I have sketched out the background to the issue and I propose to deal with the merits of the point first, but I do bear in mind, and I shall deal with, the fact that this is, in essence, an application for permission.
7. The issue turns on relatively exiguous material. True it is that the applicants for planning permission provided generalised financial information and referred to the mews development as enabling development, but that does not, of itself, bring the English Heritage policy statement into play, because it was never contended by the applicant that their development was in some way unacceptable.
8. The matter first came before the City Council's planning committee in September 2000 and, although officers pointed out that the mews had been brought forward especially "as a means of enabling the whole development to be financially viable", it is quite clear from their assessment of the development of the mews as being something which was not in itself objectionable, but rather something which could be in itself supported in planning terms, that they too were not using the word "enabling" in the specific way in which it is used in the English Heritage policy document. The conclusions of the officers' report was:
"Officers welcomed this package of proposals, which allows for the refurbishment and putting into full use a listed building whose condition has given serious rise for concern over a long period. Costings of the enabling mews development, which officers consider acceptable in itself and in relation to the listed building, its setting, and the conservation area have been requested and those are likely to be available for update at Planning Committee."
9. The recommendation was considered by members but they resolved, on 27th September 2000, that the application:
"... be deferred for the Head of Planning Control and Conservation to seek amendments to the design, density, proposed materials and siting given the close proximity to the listed building of the terraced block of mews houses and to review the adequacy of the access road to the development (which is often parked with vehicles) and the level of proposed car parking, which would be below the Local Plan standards."
10. In a letter of 6th October 2000 the Head of Planning Control wrote to the developers' planning consultants, saying:
"Members wish to see amendments made to the design, density, materials and siting of the mews development in relation to the listed Hill Top House building. Members were also concerned at the adequacy of the access road ... and with regard to the level of proposed car parking ..."
11. The matter came back before the planning committee on 6th December 2000. The officers' report dealt with the agents' position. It stated that the developer's agents did not propose to amend the submitted scheme in any way because:
"... as they point out, the 5 mews units are necessary as enabling development, to provide for the cost of repairing and furnishing the listed Hill Top House to be met ... The agents have provided a basic financial breakdown that estimates the associated costs of repair and refurbishment of Hill Top House as being in the region of £1,145,000 and that without the 5 new build mews units, this cost cannot possibly be met simply from the resale value of the refurbished flats in Hill Top House itself. They estimate a loss of around £260,000 would accrue, without the new building units involved.
5. They further set out that the finished scheme will produce 5 units, suitable for family accommodation in Hill Top House and that the proposed mews development has in their opinion been designed to respect and complement the listed building, yet add an interesting and imaginative small new development in a style that would respect the character and appearance of the main house, using materials that would weather well and relate to buildings on the site as well as on neighbouring sites."
12. They then dealt with the car parking and access matters and then concluded that the "long and troubled history" of the building supported the view that unless enabling development was supported, the problematic history would start over again shortly. The officers' conclusions were as follows:
"Officers stand by their previous assessment of the development (see in particular paragraph 16 [of their earlier report, which, in essence I have quoted already]. In brief, they consider that this package of proposals allows for the sensitive refurbishment of the Hill Top House Listed Building, bringing it back to a good standard of residential use in so doing. The enabling mews development is considered to be well designed in itself and relates well to the setting of the listed building."
13. The members resolved, according to the minutes, simply that the application be approved subject to various conditions. Planning permission was eventually issued on 26th January 2000.
14. Mr Harwood, for the claimant, submits that the appropriate inference to be drawn from the material is that the councillors were concerned about the design, density, materials and siting, and indeed objected to it. The reason why they sought amendments can only have been that they concluded that what they had in front of them was unacceptable; otherwise they would have granted permission. They sought amendments to make the unacceptable acceptable. Accordingly, when the matter came back before them in December 2000 and the application was approved, the appropriate inference to draw is that they were persuaded to grant permission by the further financial information that had been provided which had led to the developers refusing any further amendment. Effectively, the councillors were left with no real room for manoeuvre. The objection to the design and so on remained, but they could not give effect to that for financial reasons. If that were the appropriate inference to draw, it would follow that they ought to have had regard, but failed to do so, to the English Heritage policy.
15. Mr Taylor, for the City Council, submits that the appropriate inference to draw is that the members had no concluded view in relation to the merits of the design in September 2000, although they clearly thought that things ought to be improved, and that they were persuaded by the continued views of their officers as to the acceptability of the mews development to go along with it, and accordingly did not take the view that the mews were justified only for their financial impact. If that analysis is correct, then there was no need for the English Heritage policy to be considered. He submits that the relevance of the financial material was that it showed an added benefit from the development, rather than the material to overcome an objection to it. In essence, he submitted that it was for the claimant to show that the thought process that had been undertaken brought the English Heritage policy into play and that the design and so on of the mews houses was found to be unacceptable, and had been found to be acceptable in December only because of the financial advantage it brought in terms of enabling the refurbishment of Hill Top House to go ahead.
16. I say at once that it is plain that that is at least an arguable case that has been put forward by Mr Harwood on its merits, and it is a matter that could have been made more straightforward to deal with if there had been a witness statement or material from the City Council which set out more explicitly what the basis for the decision was. As it is, the court has to draw an inference bearing in mind that it does not have the benefit of that statement.
17. I have eventually been persuaded that the submission of Mr Taylor is right, that it is not just for the claimant to show that the members found the design unacceptable in September 2000 and continued to find it unacceptable in 2000, allowing the financial considerations to override the desired deficiency. I accept Mr Taylor's submission that they have not succeeded in so doing. In my judgment, the position of the Council members in September 2000 can be seen as a degree of unhappiness and concern about the design, density, materials and so on, but one in respect of which no concluded view had been reached. If it had been the case that a concluded view as to the lack of acceptability in the design and so on of the mews had been reached, I would have expected that to have resulted in a refusal rather than in a desire to negotiate and see what changes could be made.
18. I take the view as well that the provision of financial material, which may well have been done as a matter of further caution by the developers, does not of itself show that the councillors must have been regarding the development as objectionable. The material could, as I have said, been provided as a matter of caution by the developers and seen by the members not as the factor which outweighed the objections to planning permission, but merely as a further benefit. But, crucially, I take the view that if the members had in the end reached the view that the officers' advice was to be rejected, namely the advice that the mews houses were acceptable in their own right, and that it was only the financial circumstances that caused the permission to be granted, that would have been apparent in the resolution, and I do not accept that I should draw as the more probable inference that they retained and elevated to the level of an objection the concerns which they had on an earlier occasion about design. I take the view that the appropriate inference to draw is rather than that they were persuaded by the financial matters being made more explicit, that they were persuaded by the persistence of their officers in saying that the development was quite acceptable and they could find no justification for disagreeing with that assessment as to the acceptability of the mews.
19. For those reasons, were I to grant permission, I would refuse the application on its merits. However, there is a significant matter of delay and want of promptness which I propose to deal with.
20. The resolution to grant permission was passed on 6th December 2000. Planning permission itself was issued on 26th January 2001. The application was made to this court on 18th April 2001. If the resolution is the correct starting point, then there has been a lapse of more than three months between the resolution and the commencement of proceedings. The present state of the law is that there is no reason why the point at which grounds first arose for challenging the actions of the authority should not be the point at which it resolves upon a particular course, which inevitably leads to the unlawful later act. It is my judgment that the approach that is set out by the Court of Appeal in The Queen v London Borough of Hammersmith and Fulham ex parte Burkett  JPL 775, in particular at pages 779 to 780, is correct. Even if I had been of the view that 26th January was the appropriate date for concluding that grounds first arose, the lapse of time from 26th January to 18th April is very nearly three months, and I would have concluded that there was a want of promptness.
21. Whilst I accept entirely that what is prompt in any particular case may very well be affected by the effect that a decision or a challenge to a decision has on other persons involved, I consider that for a period of nearly three months to elapse in relation to a planning permission in circumstances in which, as I shall recount, the claimant had a good deal of knowledge as to what was happening, shows that there has been a want of promptness.
22. Mr Harwood seeks an extension of time under either head, and I shall deal with matters under that head, although it is possible that some of them might also go to the question of promptness or undue delay.
23. First, it is plain that the claimant has been involved in dealing with this particular development because he has made a number of representations on it. Secondly, whilst I accept that it was not until 23rd January that he heard of the resolution, and that he did not know that the current state of the law is that the three months runs from the resolution, the lapse of time between the resolution and 23rd January meant, in my judgment, that he ought to act very promptly thereafter. It was, even from 23rd January, nearly three months before proceedings were begun. Even if one allows some time for the claimant to ascertain precisely the position, or to attempt to persuade Oxford City Council to reconsider, the period that elapsed after discovering the resolution until the commencement of proceedings, is so great that I do not consider that the attempts to persuade Oxford City Council warrant anything like the extension of time that would be required.
24. It is true, and a significant point in relation to his knowledge, that on 12th February 2001 he received a letter dated 18th January 2001 from the City Council formally notifying him of the resolution and stating that shortly after the date of that letter the planning permission would be issued. The fact that he did not get that until nearly three weeks later means that he should have acted swiftly after receiving it, rather than wondering whether planning permission had been granted.
25. He also relies for his extension of time on the argument that he did not know until he was told by planning advisors on 19th March when planning permission had precisely been granted. He had spoken to planning advisors on or about 12th February who had told him that the three month period ran from the grant of planning permission. I do not regard what they told him as a basis for an extension of time; what they told him was a basis for getting on with finding out about things very quickly and, in particular, making far more direct enquiries in the light of the letter dated 18th January as to when permission had actually been granted.
26. He also submits that there was no substantive response received to various letters which he wrote up until 4th April. That is, in one sense, true, but it is not true if it conveys the impression that there was no communication at all. First of all, towards the end of January there was a prolonged telephone conservation between a planning officer, Mr Mellor, and the claimant relating to this matter. There was the communication dated 18th January 2001, which would have put anybody on notice that the actual permission would have been issued very shortly. Although it is regrettable that the City Council did not reply earlier to the letters, as they themselves recognised, I do not consider that there is anything in the letters which they wrote which can be regarded as lulling the claimant into a false sense of security. It is correct, I accept, that on 13th February the claimant wrote to the City Council clearly under the misapprehension that the formal decision had not yet been taken. That is the same letter in which the claimant threatened judicial review. I do not consider, however, that a failure by Oxford City Council to disabuse the claimant of his error is a sufficient basis for an extension of time; rather, once again, it emphasises the contrary to me, namely that the claimant had plenty of opportunity to be alerted by his own experience to what was happening and to the need to take professional advice from a lawyer as to what was the situation was.
27. For those reasons, I do not consider that the applications were made either promptly or, in respect of the one that was made outside, as I would judge it, the three month period (if one takes the resolution as the date) without undue delay, and I am not prepared, for the reasons which I have given, to extend time.
28. I should just add that in this case, perhaps unusually, Mr Harwood rightly points out that the developers, although objecting to the application for permission, do not assert that they have suffered or would suffer any particular prejudice if relief were to be granted. I accept that that is a factor to bear in mind, although it seems to me inevitable that there would be some degree of prejudice suffered by any developer if the permission they had been granted is thrown back into the melting pot, but, nonetheless, the fact that there has not been any great degree of prejudice expressed, or any specific prejudice relied on, does not, in my judgment, entitle Mr Young to an extension of sometime in view of all the other circumstances relating to delay.
29. Accordingly, I refuse permission to move for judicial review on the grounds of undue delay, or alternatively a want of promptness, and I refuse to extend time for so doing. Had the matter proceeded before me on its merits, this plainly arguable case would nonetheless have been dismissed.
MR TAYLOR: My Lord, in those circumstances I would make an application for the Council's costs. Your Lordship should have a schedule of costs, which I hope has been handed up. The schedule shows a grand total of £6,287.65. I should say that I submit that it is appropriate that the Council should get its costs notwithstanding that your Lordship has, in effect, dealt with this matter as a permission hearing alone, in particular in relation to delay. Obviously the way in which it was listed required the Council to be present to deal with the substantive matter, in any event, and, in my submission, the matters relating to delay
MR JUSTICE OUSELEY: Yes, just deal with the principle first. Mr Harwood, is there anything you want to say about the principle of making an order?
MR HARWOOD: My Lord, in principle they are entitled to costs in respect of today, but we say not on the earlier hearing.
MR JUSTICE OUSELEY: Right. Let us look at the detail of the costs. I think, first of all, Mr Harwood, you say that there are certain costs in relation to the hearing on 6th August 2001 which they should not get.
MR HARWOOD: Yes, my Lord. That was simply a permission hearing in the normal course of events and they should not receive their costs in relation to that. It may be helpful, my Lord, to go through the schedule because we have a number of issues.
MR JUSTICE OUSELEY: Yes. I have a letter dated 15th October from your instructing solicitor.
MR HARWOOD: My Lord, I will work through the schedule as it stands.
MR JUSTICE OUSELEY: Yes.
MR HARWOOD: Attendance on the client of 2 hours seems reasonable. Attendance on others of 6 hours, it is not made clear who those "others" are, it may well be Mr Young. My Lord, that is on the high side for any of these sort of matters, so that should be reduced. Work done on documents, acceptable. My Lord, phones. Well, if they are on the phone they must be attending either on a client or attending on others. That seems to be a straightforward duplication. The next matter is 14.5 hours of works "not covered above". My Lord, they should not be able to recover for costs which they have not been able to explain. My Lord, these costs schedules break down into categories of attendance on various identified persons and documents and so on, but they are asking for 14 hours without explanation. The attendance at the hearing on 6th August should not be allowed because, my Lord, that was simply a permission hearing. Attendance at the hearing today is acceptable. In terms of counsel's fees, my Lord, I would say, with respect to my learned friend, those are somewhat on the high side. The first element includes an unbroken down figure for the hearing on 6th August and then the brief hearing for today. So, my Lord, I would suggest that those be roughly halved. The travelling expenses would appear to include both the 6th August hearing and today's hearing, so, my Lord, those should be halved as well. The final element on the schedule is a claim for VAT. My Lord, that is not allowable because the authority can recover their VAT. My Lord, that should not be part of the assessment either.
MR TAYLOR: My Lord, I understand, indeed I am instructed, that in respect of attendance on others and phones and "other works not covered above", those matters relate to a considerable amount of time that officers have had to put in in dealing with Mr Young himself, and addressing a large volume of correspondence that has been put in in relation to this matter subsequent to the claim being put forward. Mr Young continued to attempt to try and get the Council to change its mind in terms of granting the planning permission after the claim had been put in, and he was at that point a litigant in person. In relation to attendance at the hearing on 6th August
MR JUSTICE OUSELEY: What about "other works not covered above"?
MR TAYLOR: My instructions are that that relates to time spent addressing matters raised by Mr Young, getting documents for him, et cetera. In relation to the attendance on 6th August, in my submission it was perfectly appropriate for the Council to attend on that date, indeed, to participate in the permission process, in particular in order to put forward its views about matters relating to delay, and also to explain the situation with relation to the substantive point and the proper interpretation of the minutes, which your Lordship has already relied upon. As I understand it, there is no objection in relation to attendance today.
In relation to my fees, well, all I can say is I was called in 1990, and if your Lordship considers that the level of those fees for somebody of that call is not justified, then so be it.
In relation to VAT, I am afraid I have not been able to ascertain the position with regard to the appropriateness of claiming VAT, not being a VAT specialist myself, but I understand that it is actually normally claimed for, and indeed there is a box on the standard costs schedule form for VAT on counsel's fees.
MR JUSTICE OUSELEY: My experience is that practice varies enormously about whether people ask for it or not. I tend to say if you do not ask for it you will not get it and not have the issue fought out.
MR TAYLOR: My Lord, I should just add, I have been corrected, and indeed told off for exceeding my instructions in relation to the VAT point, and we are not going to pursue the claim for VAT any further.
MR JUSTICE OUSELEY: Do you want to reply on anything? I think, Mr Harwood, the biggest single block is Mr Taylor's fees. You have made your point about the permission hearing, but the level of them, he is an 11 year call man, what are you?
MR HARWOOD: My Lord, I am an 8 year call man and my fees total just over £ 2,000 for both hearings, so about twothirds of Mr Taylor's fees on those. The point I would make is that from the explanation we have been given in terms of the "other works not covered above" and so on, it seems the Council is trying to impose on Mr Young the costs of running a planning department and answering questions and so on from members of the public. They have not really come forward with a satisfactory explanation on that point.
MR JUSTICE OUSELEY: So far as the costs are concerned, dealing with the larger items, the VAT will be disallowed. So far as Mr Taylor's fees are concerned, I bear in mind, first of all, looking at the amount, that the disparity between his and Mr Harwood's, whilst they, no doubt, have some component of clerking expertise within them, do also reflect a three year difference which would justify a considerable narrowing of the gap, and I do not think that the fee of £2,000 for the hearing today is so excessive that I should reduce it.
The point made in relation to the hearing on 6th August, which applies to attendance as well and the travelling fees, is that as it is a permission hearing the fees should be disallowed. I do not accept that as a general proposition. It seems to me that on a permission hearing it is a matter for judgment as to whether the costs of a potential or an actual defendant appearing should be paid by the claimant. This was, of course, a renewed oral hearing, the refusal of permission by Moses J raised both merits and delay issues, and I consider that it is appropriate for the defendant to be represented in those circumstances, where the claimant decides to continue to pursue the matter, because it is legitimate for the defendant to seek to uphold that decision and to provide assistance to the court. So I do not accept the submission that the permission hearing should go.
So far as the want of specificity in relation to other works and attendance on others, Mr Harwood submits that there should be a significant discount from those because they are the costs of dealing with Mr Young not as a litigant, but as a member of the public enquiring about planning matters related to this but unconnected with the litigation. There has been no suggestion that they related to other matters which Mr Young and the City Council have between them. Whilst I understand a wariness that Mr Harwood expresses about the question of whether the costs of dealing with Mr Young, the local resident, as opposed to Mr Young, the litigant, being included, I bear in mind that Mr Young was, for a good part of this, a litigant in person, and I find nothing odd in the amount of time that has been spent to suggest that the Council were dealing with him other than as the litigant in relation to these matters. Indeed, it would have been as a litigant in relation to these matters that he would have wanted to discuss these matters with the Council. The suggestion that there is duplication in the time required on the phones with the attendance on others is, in my judgment, simply not made out. I therefore, subject to the deduction of VAT, will make an order that Mr Young pay the defendant's costs in the sum of £5,743.40.
MR HARWOOD: My Lord, can I ask for permission to appeal. In terms of the refusal to apply for judicial review I do not need to ask your Lordship for permission at this stage.
MR JUSTICE OUSELEY: No, that is effectively the order, is it not?
MR HARWOOD: Yes, my Lord, but permission to appeal in respect of your Lordship's judgment on costs in terms of your Lordship's judgment that whether costs are awarded in favour of the defendant at a permission hearing is, as your Lordship put it, essentially a matter of judgment for the court, given the ruling of the practice direction which is that costs should not generally be awarded
MR JUSTICE OUSELEY: Well, if there is further material you want to draw to my attention on that, I am quite happy to revisit that part of my order.
MR HARWOOD: My Lord, it is dealt with in the practice direction to CPR rule 54, towards the end of the practice direction. My Lord, it is paragraph 8.6, which is at the top of
MR JUSTICE OUSELEY: I see.
MR HARWOOD: Page 1044, where a defendant or any party does attend a hearing, and your Lordship will see over the page that is a permission hearing, the court will not generally make an order for costs against the claimant.
MR JUSTICE OUSELEY: Do you want to say anything about that?
MR TAYLOR: My Lord, I think you already gave your reasons as to why it was appropriate.
MR JUSTICE OUSELEY: Yes, but I did not have my attention drawn to that passage, which indicates not so much a free hand, but as a hand to be exercised exceptionally. Perhaps you assume I had that at the forefront of my mind, I did not.
MR TAYLOR: With that in the forefront of your mind, my Lord, I think, for the reasons that you have already given, that this is an appropriate case for costs to be awarded to a defendant, indeed to this particular defendant given the refusal by Moses J in relation to the merits, and the point I already made that it was appropriate for the Council to come along and explain its position on those matters at the permission stage.
MR JUSTICE OUSELEY: In relation to the costs order, my attention has been drawn no doubt it was assumed that I had it in the forefront of my mind, I am afraid I did not to the provision in relation to costs in the practice direction not generally being ordered against the claimant in respect of a defendant at a permission hearing. It is, of course, not suggested that that, as I understand it, applies in relation to today's hearing, which is a permission hearing. It relates to the permission hearing insofar as concerns the hearing on 6th August. I say it does not concern this hearing not merely because that is not the way I understand Mr Harwood is putting it, but plainly where the permission hearing is to be followed, if permission is granted, by the substantive hearing, those costs in circumstances in which the general rule applies clearly make no sense. But I accept that the circumstances which I had referred to, namely the advantage to the court, the fact that a claimant was persisting in the light of a refusal on paper, and that there were issues of merits and time to be dealt with, that previously influenced me to say that the claimant should pay the costs are not ones which are in some way unusual or exceptional. Those are likely to be the generality of circumstances which apply on a permission hearing. Permission will have been refused on paper for some reason. It is likely to be merits, delay, or a combination of the two, and there was nothing, in my judgment, so unusual about this case as to mean that those factors which had persuaded me, on a free hand, should be so weighty, when, as a matter of approach, my hands are, as I now realise, not so free.
Accordingly, I will deduct from the costs the sums of money which relate to the hearing on 6th August. Now that, I think, is discernable as to the attendance at the hearing, the sums of £26 and £324. It goes to part of Mr Taylor's fees, but I am not sure the whole of it, because that is marked advice/documents/hearing.
MR TAYLOR: My Lord, I am just taking instructions. I am afraid I cannot remember what my brief fee was for that day. Excluding VAT it was £400, my Lord.
MR JUSTICE OUSELEY: For attendance?
MR TAYLOR: For attendance.
MR JUSTICE OUSELEY: So that is £710, so I will take off £400. So the figure is £5,743 minus £750
MR HARWOOD: My Lord, there is also half the travelling expenses, which are below counsel's fees, to deduct presumably.
MR JUSTICE OUSELEY: I have deducted the attendance at the hearing, which includes half an hour attendance and 6 hours travelling.
MR HARWOOD: My Lord, the travelling expenses would appear to be rail fares or the equivalent at £64.
MR JUSTICE OUSELEY: What are they, Mr Taylor? The other expenses, to what extent do those relate to 6th August?
MR TAYLOR: I am instructed that that figure should be halved.
MR JUSTICE OUSELEY: Right. £782 then comes off. Is there another point?
MR HARWOOD: My Lord, there is one other point, I am being prompted, regarding the costs before the permission hearing. Your Lordship may be familiar with Collins J's decision, Leach , which relates to the summary grounds of response being recoverable, but my learned friend has not the costs do not differentiate between the cost of preparing the summary grounds and documents and so forth. So, my Lord, there is maybe that extra element pre the permission hearing, which ;
MR JUSTICE OUSELEY: What Collins J decided, first of all, was there was jurisdiction to grant costs in relation to that, but as I recollect, the particular circumstances in which that arose were circumstances in which the case ended, if you like, with the acknowledgement of service and the costs up to that date, and the real issue was as to the exercise of discretion in relation to a case which stops at that stage. Where the case has gone very nearly the whole hog and effectively the whole argument has been heard, I do not think that there is any suggestion, is there, that as a matter of practice or generality costs only start running after permission has been granted. An enormous amount of work is often done before that.
MR HARWOOD: My Lord, costs relate to three stages. There is the question of Leach , the costs of getting to the summary grounds, the authority deciding its stance and then setting it out in summary form. There is then the costs up to the permission hearing which the practice direction says are generally not recoverable. Then, my Lord, there are the costs after that point which will be recoverable on the normal basis. But, my Lord, it would be wrong for it to be assumed that the costs are recoverable other than the costs of the actual permission hearing itself. There is that sort of element beforehand.
MR JUSTICE OUSELEY: The practice direction does not actually do other than deal with the costs of attendance, does it? That is specifically what it is directed as, is it not?
MR HARWOOD: My Lord, the practice direction is in the wide sense of permission and it is the costs of getting up to that point. The decision of Collins J in Leach was on the basis that the defendant was obliged under the rules to prepare its summary grounds and so on, and because of the obligation of the rules should be entitled, which are those costs regardless of what subsequently happened in proceedings.
MR JUSTICE OUSELEY: But the case did end there, did it not?
MR HARWOOD: From recollection, it did.
MR JUSTICE OUSELEY: Otherwise we are in this curious position where you are having to argue that the judicial discretion should be exercised in favour of a successful defendant only after the stage at which permission has been granted and all the costs up to that stage are not recoverable, but that, in my judgment, is not right. The rules require for the benefit of the parties and the court that there be a response through an acknowledgement of service. It is perfectly obvious that there would be a good deal of work necessarily undertaken. It may be undertaken before permission is granted, but it will be valuable in resisting the relief. The real point that is being struck at by 8.6 of the practice direction is, if you like, the discretion that is exercised by a defendant who says "well, I am going to turn up, I do not have to turn up, I am permitted to turn up, I will turn up". About that the claimant can do nothing. He cannot bar him from attendance. So there may be circumstances in which the claimant, pursuing a case that might just be refused permission, suddenly finds somebody turning up for a defendant who made absolutely no contribution to the case at all, the judge has done at all, if you like, then lands the unsuccessful claimant with a bill of costs. I see that as being a rather different situation.
MR HARWOOD: My Lord, we are not questioning the decision in Leach in terms of the costs which were required by the rules to be incurred, but the essence of what the practice direction is seeking to do is to go back to what used to be seen as the situation on judicial review, which is that the permission stage was there as a filter and that ordinarily it would not be contested and the claimants could get their case considered by a court without being at risk of heavy costs against them, and it is only in the more recent years that the practice developed of considerable battles, as your Lordship will be well aware, at the permission stage. What the practice direction is seeking to do is to avoid the situation where if defendants or interested parties put in considerable efforts at the pre permission stage that the claimant then gets landed with those costs.
MR JUSTICE OUSELEY: Yes. I can see a distinction between a claimant finding himself landed with costs when a defendant has chosen to turn up, and a claimant landed with costs when a defendant has done what the rules require him to do in relation to an acknowledgement of service and has incurred costs which, once the matter has gone to a substantive hearing, as in effect this has, has been valuable in dealing with that matter. The idea that costs incurred before the grant of permission but which are nonetheless relevant to the post permission stage should not be recovered seems to me to be quite unfair.
MR HARWOOD: My Lord, we are not querying costs which are required by the rules.
MR JUSTICE OUSELEY: Which are the costs that you say inside this application pre whatever it was, 6th August, that should not be recovered. You are saying the costs of drawing up their acknowledgement of service?
MR HARWOOD: No, my Lord, we are saying the costs of the acknowledgement of service and summary grounds can be recovered.
MR JUSTICE OUSELEY: So what is the bit that cannot, given that I accepted your point in relation to the hearing itself.
MR HARWOOD: As my learned friend's fees were doing other than the summary grounds, and, my Lord, the work which was done by the solicitors in advance of the permission hearing. Most of these costs seem to be, in terms of the solicitors' time spent, matters before the permission.
MR JUSTICE OUSELEY: Yes, I entirely accept, Mr Harwood, that there were costs incurred before the 6th August hearing and those costs would have been getting the papers together, generally getting started on dealing with the case, but you have to identify for me, before you even get to first base, some costs that were attributable exclusively to the hearing. If you cannot do that, and those costs that have been incurred because of today, in order for them to respond to it, I cannot see how you are going to get anywhere.
MR HARWOOD: My Lord, the way we are putting it is (inaudible) attacking the costs of the summary grounds and it is not the extras particularly with the way the costs schedule is assembled.
MR JUSTICE OUSELEY: I can see the point you are making.
MR TAYLOR: My Lord, can I just assist, in particular to correct a mistake I made earlier. I have my fee note up to 6th August and in relation to the appearance on 6th August, I mentioned the brief fee of £400, but there was also £250 for drafting a skeleton argument at that stage. That obviously needs to come off.
MR HARWOOD: I am obliged.
MR JUSTICE OUSELEY: Thank you very much.
MR TAYLOR: The remaining £450 in the fee note, £400 related to drafting the defendant's summary grounds for contesting the claim and £50 for drafting the acknowledgement of service. All of those matters then
MR JUSTICE OUSELEY: I anticipated the whisper from Mr Buxton, the solicitors then come in. You need not trouble yourself with that. I am against that submission. The £250 will come off, which means that the costs ordered to be paid by my calculations are £4,711.40.
I would just say briefly that Mr Harwood has submitted that the only costs which can be recovered before the grant of permission, and for these purposes I think he will probably accept that 6th August 2001 is a reasonable starting point, are the costs incurred by the defendant in preparing its acknowledgement of service and the grounds of resistance. He submits that that is the logical consequence of a sensible and purposive reading of the practice direction in relation to costs at permission hearings. I do not agree. The costs at a permission hearing are subject to the particular rule, in my judgment, because whether a defendant is represented or not is a matter over which the claimant has no control and in respect of which the rules make no requirement. It is a matter of choice by the defendant. It is not thought appropriate as a general rule that that choice exercised by the defendant should lead to a significant costs burden caused by the attendance of counsel and solicitors on an occasion where a matter is being filtered out only. But that seems to me to be irrelevant to the question of whether costs incurred before the permission hearing, in addition to the acknowledgement of service and grounds of defence, should be paid. Those costs, if the claim is ultimately unsuccessful, will, unless there is clear evidence to the contrary, have been incurred as part of the successful resistance to the claim. Very often a lot of the preliminary work, investigation and analysis will precede the summary grounds and the acknowledgement of service, and will be invaluable in the subsequent preparation of witness statements. It would be very odd if the happenstance of when that work was done should mean that it was recoverable or not. I can see no advantage, in terms of the administration of justice or in fairness to any party, that would require this work to be done only after permission had been granted if it were to be recoverable in costs. This would simply be to substitute a timing point for the substantive point. There has been no suggestion that the work done before 6th August in this case was not work that would have been required to have been done at some point in order for the Council properly to prepare for this hearing.
For those reasons that further refinement to Mr Harwood's costs arguments I reject.