This article was first published by Lexis®PSL on 29/07/2019

Planning analysis: In refusing permission to apply for statutory review, the Court of Appeal held that there was no limit to the number of parties to which claimants could be liable to in costs and that the court was correct not to limit further the Aarhus cap on the basis that the claim failed at the permission stage. Nevertheless, successful defendants and/or interested parties may only recover reasonable and proportionate costs. Written by Howard Leithead, barrister at No5 Chambers.

Campaign to Protect Rural England—Kent Branch v Secretary of State for Communities and Local Government and others [2019] EWCA Civ 1230

What are the practical implications of this case?

Defendants and interested parties who file an acknowledgement of service (AoS) and summary grounds in response in judicial or statutory review cases will welcome the clarification of the Court of Appeal that there is no limit on the number of parties to which claimants may be liable to in costs. They will further be encouraged by the court having held that the existence of the Aarhus cap does not, in itself, justify a further reduction in the costs of successful defendants and/or interested parties if the claim fails at the permission stage.

However, defendants and interested parties should take heed of the court’s warning that only costs that are reasonable and proportionate will be recoverable. In particular, they should note the example given by the court that the costs entirely duplicatory sets of summary grounds produced by a party that is clearly not the principal defendant may not be recoverable. Defendants and interested parties should therefore seek to anticipate the arguments raised by other parties and it may be appropriate for there to be some discussion between potential parties before filing AoSs and summary grounds in an attempt to avoid duplication.

Claimants will want to give careful thought to which parties should be served with copies of the claim form and be alive to the possibility of seeking to reduce costs awards on the basis that the costs sought are not reasonable and/or proportionate.

Finally, potential parties should note the indication given by the court in footnote 3 to the judgment (para 26) that it is becoming much too common for parties to submit materials concerning the introduction of a new rule or practice direction of the Civil Procedural Rules. Such material will only be relevant, or even admissible, in a very rare case where there is a dispute about the meaning of a particular rule.

What was the background?

Maidstone Borough Council (the council) had adopted the Maidstone Borough Local Plan (the plan) on 25 October 2017 following a finding that it was ‘sound’ (within the meaning of section 20(5) of the Planning and Compulsory Purchase Act 2004 by the inspector appointed by the Secretary of State for Communities and Local Government (SSCLG). The plan included a policy that allocated a large site for mixed employment floor space (the site). Roxhill Developments Ltd (Roxhill) were the promoters of the site.

Campaign for Rural England—Kent Branch (CPRE Kent) had sought statutory review of the council’s decision to adopt the plan. The SSCLG was named as first respondent and the council as second respondent by CPRE Kent, and Roxhill was named as the interested party. CPRE Kent served all three with copies of the claim form, in which it requested that costs be limited to £10,000 in accordance with the Aarhus costs rules under CPR 45. The SSCLG, the Council and Roxhill each filed an AoS together with summary grounds.

On 31 January 2018, Lang J refused CPRE Kent permission to apply for statutory review and ordered it to pay the costs of the SSCLG, the council and Roxhill. The amounts that CPRE Kent were ordered to pay varied and totalled £10,000.

CPRE Kent challenged the amounts of costs awarded. Its objections fell into two main areas:

  • the award of more than one set of costs, and
  • the quantum of the costs ordered, mainly that it was wrong for the costs at the permission stage to have been awarded up to the level of the Aarhus cap

After HHJ Evans-Gordon (sitting as a deputy High Court Judge) affirmed the decision of Lang J on 20 April 2018, CPRE Kent appealed to the Court of Appeal.

What did the court decide?

The Court of Appeal dismissed CPRE Kent’s appeal. The judgment focused on two key issues arising out of CPRE Kent’s grounds. First, where permission to seek review (whether judicial or statutory) is refused, a claimant may be liable to more than one defendant and/or interested party to pay the costs of their preparing and filing AoS and summary grounds.

Defendants and/or interested parties do not need to demonstrate ‘exceptional’ or ‘special’ circumstances in order to recover these costs. However, only reasonable and proportionate costs are recoverable. As an example of costs that may not be recoverable, where there is an obvious lead defendant, and where the submissions of an additional defendant and/or interested party whose submissions do not assist the court, the court may decide that the costs of that additional defendant and/or interested party are not recoverable on the basis that they were not proportionate.

Second, the Aarhus cap was not applied by the court illegitimately. Interested parties come within the provisions of CPR 45. Where a claim fails at a permission stage, rather than after a subsequent hearing, the costs should not be limited to an amount below the level of the Aarhus cap on the basis that the claim failed at the permission stage. Thus, the existence of the cap does not justify a further a further reduction in the costs of successful defendants or interested parties below that which the court assesses as being reasonable and proportionate.

Case details

  • Court: Court of Appeal, Civil Division
  • Judge: David Richards, Hamblen and Coulson LJJ
  • Date of judgment: 15/07/2019