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katy-photoIntroduction

On 28 January 2021 the Supreme Court will hear the appeal in Campaign to Protect Rural England (Kent) (Appellant) v. Secretary of State for Communities and Local Government (Respondent). The case concerns two issues. First, the extent to which a court can make an adverse costs order in favour of more than one defendant or interested party in a planning case, where permission to apply for statutory or judicial review is refused. Second, how the capping mechanism in the Aarhus Convention costs regime properly applies to cases in which permission is refused.

Background

The case involved four parties: CPRE (the Claimant), the Secretary of State for Communities and Local Government (the first defendant), Maidstone Borough Council (the second defendant), and Roxhill, the developer for the relevant piece of land (the interested party).

In December 2017, the CPRE sought statutory review of the Council’s decision to adopt the Maidstone Borough Local Plan. The plan had been endorsed by the SSCLG and promoted by Roxhill. CPRE requested that its costs liability be limited to £10,000 in accordance with the Aarhus cap provisions in CPR 45.

Permission for statutory review was refused. It was accepted that the claim was subject to the Aarhus cap. Lang J ordered that the Claimant pay the costs of the Acknowledgement of Service (“AoS”) and summary grounds of both defendants and the interested party. The Claimant’s liability for the Roxhill’s costs was capped so that the global figure did not exceed the £10,000 cap.

The Claimant appealed on two grounds. First, it objected to being liable for more than one set of costs at the permission stage. Second, it argued that it was wrong in principle for costs at the permission stage to absorb the entirety of the Aarhus cap.

The Court of Appeal judgment[1]

Issue one: costs where permission is refused

Coulson LJ, with whom Hamblen LJ and David Richards LJ agreed, summarised the Court’s view on issue one at [37] by reference to three principles. First, when permission to seek review is refused, a claimant may be liable to more than one defendant and/or interested party for their costs of preparing and filing their AoS and summary grounds. Second, it is not necessary for the additional defendant(s) and/or interested party to show “exceptional” or “special” circumstances in order, in principle, to recover those costs. Third, to be recoverable, those costs must be reasonable and proportionate. Those principles applied to both judicial review and statutory review cases.

The principles set out in Bolton Metropolitan District Council and others v. Secretary of State for the Environment[2] continued to be relevant as an aspect of the proportionality assessment. Thus, the claimant would not necessarily be obliged to pay two sets of costs in a multi-defendant case if the second AoS and summary grounds merely replicated that of the principal defendant [25].

The Court also confirmed that the principles in R (on the application of Mount Cook Land Limited) v. Westminster City Council[3] were not limited to single-defendant cases, but constituted general guidance as to the costs consequences for defendants and interested parties where permission was refused. The Court also concluded that the Mount Cook principles were applicable to statutory review cases, accepting the submission that “it would be impractical and potentially unfair for different costs regimes to be applied to what are…very similar types of proceedings…the precise nature of the planning challenge in question should make no difference to the parties’ costs entitlement.”

Issue two: the Aarhus Cap

On the second issue, the Court held that Aarhus cap was a global figure, irrespective of the stage at which the costs assessment was undertaken. There was no justification for imposing a “further arbitrary cap” to reflect the early stage of the litigation [51]. The £10,000 cap was therefore not referable to the total costs of a claim that went all the way through to final hearing, of which the costs up to the permission stage could only reasonably be a proportion.

The Court of Appeal in CPRE arguably therefore took a different approach to the capping mechanism than that taken by the Court of Appeal in R (on the application of Elan-Cane) v. Secretary of State for the Home Department[4]. In Elan-Cane, the Court of Appeal considered whether the High Court had erred by imposing a partial reduction to the Defendant’s costs within the limit imposed by the agreed costs cap, rather than first making the reduction to costs, and then applying the cap. The Court of Appeal in Elan-Cane derived no assistance from CPRE, seemingly accepting the submission that the principles in CPRE had no application beyond Aarhus Convention cases (which Elan-Cane was not). It remains to be seen whether the Supreme Court will confine its judgment on the mechanics of the cap in CPRE to Aarhus Convention cases, or whether the judgment will read across more widely to other costs capping regimes.[5]

Katy Sheridan is a trainee at Matrix Chambers

 

 

[1] [2019] EWCA Civ 1230

[2] [1995] 1 WLR 1176

[3] [2003] EWCA Civ 1346; [2017] PTSR 1166

[4] [2020] EWCA Civ 363

[5] In Elan Cane, the costs cap was agreed between the parties at an early stage, in anticipation that a costs capping order was likely to be made under sections 88 – 89 of the Criminal Justice and Courts Act 2015. That costs capping regime may apply to judicial reviews which amount to public interest proceedings.