King's Lynn and West Norfolk Council v Bunning [2016] EWCA Civ 1037

Case No A2/2013/3803

[2016] EWCA Civ 1037

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

His Honour Judge Ralls QC

Sitting as a Deputy Judge of the High Court

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 26/10/2016

Before

LORD JUSTICE KITCHIN

LORD JUSTICE IRWIN

Between

KING'S LYNN AND WEST NORFOLK COUNCILClaimant/

MICHELLE PAULA BUNNINGDefendant/Appellant

Ms Saira Kabir Sheikh QC (instructed by Sharpe Pritchard LLP as agents for King's Lynn & West Norfolk Council) for the Claimant/Respondent

Ms Galina Ward (instructed by Duncan Lewis) for Defendant/Appellant

Hearing Hearing date: 18 October 2016

Judgment

Lord Justice Irwin :

[1]This is an appeal from a decision of HHJ Ralls QC, sitting as a High Court Judge on 25 November 2013. The appeal is confined to the Judge’s Order as to costs. Permission to appeal was refused on paper by Gloster LJ but permission was granted following oral renewal by Vos LJ on 27 February 2015.

The Facts

[2]The Respondent council obtained an order from Foskett J on 29 March 2012, restricting the use of a plot of land at St James, Wisbech, Cambridgeshire. In particular, the Order forbade the siting of mobile homes and caravans on the land, the use of the land for residential development, including the occupation of caravans and mobile homes, with various ancillary orders. The Order of Foskett J did not name any individuals.

[3]According to the affidavit of Neil Langley, Enforcement Team Leader within Environment and Planning for the Respondent Council, sworn on 19 July 2013, a copy of the Order of Foskett J was served on the Appellant, Ms Bunning, and on her partner and co-habitee, Mr Taylor, on 2 April 2012 by a Mr Curtis, Enforcement Officer for the council. Service on the Appellant was in issue.

[4]Mr Langley’s affidavit goes on to recite that he visited the site on 1 May 2013 and found that a touring caravan, mobile home and “residential paraphernalia” were present on the land. There had also been hard standing laid and fencing erected. All of those steps were a breach of the order. During his visit on that day, Mr Langley spoke to Mr Taylor. Mr Taylor confirmed to Mr Langley that he, his partner the Appellant, and their two children were residing on the land. Mr Taylor claimed that the Court Order had been lifted. Mr Langley stated that the council had received no such notification and handed Mr Taylor a further copy of the Order of Foskett J.

[5]According to the Affidavit, Mr Langley returned to the land with a colleague on 5 May. He took with him a letter of 3 May, confirming that the Court Order had not been lifted and advising Mr Taylor to comply with the Court Order by 14 May. Mr Taylor was not present so the letter and copy Court Order were posted through the letterbox. Photographs were taken on that date confirming the occupation of the land. Those photographs were subsequently produced before HHJ Ralls QC.

[6]Mr Langley further recites that on 8 May a letter addressed to the High Court was hand delivered to the council’s offices. A copy of the letter was produced before HHJ Ralls QC and he made reference to it in his judgment. The letter related to the alleged breach of the Court Order, and included the Appellant’s name as one of the authors of the letter. This had significance since Mr Taylor was functionally illiterate; a matter well-known to HHJ Ralls QC and which had led to a degree of delay in the course of the case.

[7]Mr Langley then set out how, on 15 May 2013, his colleagues Messrs Clarey and Williamson, enforcement officers, attended the site to check for compliance. They found the caravan, mobile home and “paraphernalia” remaining on the land. Mr Taylor and the Appellant were present and were served with a further letter, dated 15 May, confirming that a breach of the Court Order had been witnessed and that committal proceedings would commence. A copy of that letter was produced before HHJ Ralls QC.

[8]Mr Langley’s affidavit goes on to recite that a further visit was conducted on 10 July and matters remained unchanged.

[9]Mr Langley goes on to describe how, on 12 July 2013, he received information:

“confirming that Ms Bunning no longer resides on the land, however Mr Taylor does, despite a County Court Order made by District Judge Rutland on 11 July 2013 against John Taylor”

. A Copy of that Order was exhibited to the affidavit. The Appellant’s departure from the land was confirmed by Mr Taylor when Mr Langley again attended the site on 18 July. Apart from the departure of the Appellant, Mr Langley and his colleague found matters unchanged in relation to the site. In conversation, Mr Taylor confirmed his intention to continue to reside on the land. Mr Langley repeated to Mr Taylor that this would be a breach of the Order. Further photographs were taken of the site as evidence that there was no change and that occupation was continuing by Mr Taylor.

[10]On 19 July 2013, the Respondent council issued an application notice for contempt proceedings against the Appellant and Mr Taylor with a return date of 12 September 2013. The recital of breach read as follows:

“The Defendants have acted in breach of the Order in the following ways: (i) By having used the Land east of Gooses Lane and north of Long Lots, Marshland St James, Wisbech, PE14 8DT (“the Land”) or any part of it for the siting of mobile homes/caravans and by using the Land for residential development including the occupation of caravans/mobile homes for residential purposes, storage of vehicles, caravans and residential paraphernalia without express planning permission for such use having been granted and; (ii) By having from undertaken development on the Land as defined in section 55 of the Town and Country Planning Act 1990 without the express grant of planning permission including the laying of hardcore and creation of hard standing and access roads. John Taylor was in breach of the Order on 1st May 2013, 5th May 2013, 15th May 2013, 10 July 2013 and 18 July 2013 and remains in breach of the Order at the date of this application. Michelle Paula Bunning was in breach of the Order on 1st May 2013 and 15th May 2013.”

[11]The committal application was first listed before Dingemans J on 12 September 2013. A statement from the Appellant (then Respondent to the application) was filed and served on the previous day. The Appellant stated that she was unable to attend the hearing “due to injuries and depression caused by domestic violence suffered following injuries caused by … Mr Taylor”. A GP’s letter was served. The Appellant explained that she had instructed solicitors at around midday on 11 September. She had been aware of the matter for a period of time and conceded she had not “acted with due haste”. She had been “confused in relation to what is actually happening in this matter”. The Appellant explained that she was concerned to attend court alongside Mr Taylor and then she said:

“I have not directly been involved with the council until July 13 when I had to leave my former home because of domestic violence.”

[12]The Appellant explained how there had been a history of physical violence which had led to previous “court orders for protection”. She went on to say:

“As the claimant is aware I have removed myself and my possessions from the location in that dispute. I was aware that there was an issue in respect of the land, but didn’t appreciate this was as serious as it was. My partner simple (sic) said it was a planning issue and that it was being resolved. Until the bundle from the Court was served on me I had not seen the letter of 6 May …. The issues about me being on the land at various times with my children are complex. … I am now of course aware of the court order in March 2013 and for a number of months have been complying with the same, once I became aware.”

[13]The Appellant went on to state that her position had been very difficult, that she had been ill, and concluded:

“I apologise for not addressing the issues in this matter sooner; however my life is chaotic and I am struggling to deal with issues. I further believed that this issue was linked to my family matter and that this was resolved by the Court in July 2013. I didn’t appreciate that Duncan Lewis [her solicitors] were not assisting me in respect of this matter, and I only appreciate this today.”

[14]The Appellant made a further short statement, dated 12 September, indicating that she had:

“no property in or around the area known as Land east of Gooses Lane and north of Long Lots, Marshland St James, Wisbech … I do not intend to return to the land and I remain separated from my Co-defendant Mr Taylor.”

[15]At the hearing on 12 September before Dingemans J, Mr Taylor appeared unrepresented. The Appellant did not appear but was represented. In the course of submissions on the Appellant’s behalf, her solicitor stated: “I do not think it is a position that Ms Bunning is going to take that she was not living on the land at the time, simply that she just was not aware of the Court Order.” (Bundle, p51H) The principal submission on behalf of the Appellant was that it was inappropriate to proceed on the committal applications where no specific Order naming the Appellant as an individual had been obtained, that that was “an abuse of process”, if the matter was to proceed, the Appellant should be granted further time to prepare her case, given the difficulties of her personal life.

[16]In the course of his evidence before Dingemans J, Mr Taylor explained that he had nowhere else to go, that he was unable to read or write and that he wanted to use the land to raise cattle, an agricultural use. He also informed the Court that the Appellant was subject to a Probation Order in relation to “fraud”.

[17]Counsel for the Respondent council made clear that in relation to the Appellant, the council’s position was as follows:

“My earlier instructions and they are still my instructions were that the Council recognising all these problems that are going on between Ms Bunning and Mr Taylor, the obvious distress she is in and her children and so forth, the Council’s position, and communicated to Ms Bunning through Mr Tear, was that the Council would be content with a finding of contempt and no further penalty in relation to her. We could not just walk away with no finding because in due course should Ms Bunning decide that she could go back on the land, we would be starting from square one. That is all really the Council would be seeking for her.”

In relation to Mr Taylor, the Respondent sought only a suspended order.

[18]Dingemans J then adjourned the case so that both the Appellant and Mr Taylor could seek legal aid and be represented.

[19]Following the hearing before Dingemans J, the Appellant applied for legal aid. On 25 October 2013, Dingemans J directed that the papers be served on the Legal Aid Agency and that the Agency should be requested to attend the adjourned hearing of the Respondent’s application to assist the Court. That hearing took place before Blake J on 30 October 2013. At the conclusion of the hearing Blake J made an Order granting legal representation in favour of the Appellant. He subsequently gave his reasons for doing so and they are now reported in King’s Lynn and West Norfolk Borough Council v Bunning

[2015] 1 WLR 531

. The point at issue was a technical one arising from the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The question was whether “quasi-criminal” proceedings such as those brought against the Appellant fell to be regarded as criminal proceedings for the purpose of legal aid. The judge concluded that the current proceedings were “criminal proceedings within the meaning of … Section 14(h) of the 2012 Act and Regulation 9(v) of the General Regulations” (paragraph 31).

[20]The matter was relisted and came before HHJ Ralls QC on 18 November 2013 but it was adjourned once more following the provision of further evidence by the Respondents. The judge reserved the matter to himself to be heard a week later, on 25 November.

[21]On 8 November, Christopher Curtis swore an affidavit dealing with service on the Appellant in 2012. He deposed to serving on 18 April 2012 (a different date from that given earlier by Mr Langley, in his affidavit of 19 July 2013). This affidavit stated:

“8. I handed copies of a High Court Order, Exhibit CC1 to both Mr Taylor and Mrs Bunning. The copies of the High Court Order were each contained in an envelope. I asked Mr Taylor whether or not he could read and write, he stated he could not. I established that Mrs Bunning could read and write. 9. To ensure that Mr Taylor was fully aware of the content of the Order, I removed his copy from the envelope and I verbally explained the content to him, making it very clear that he needed to continue to comply, otherwise he would risk further action. Furthermore, I made it clear to Mrs Bunning that this also applied to her. I suggested that she may wish to read the Order on behalf of herself and Mr Taylor after I had left and to contact me if they had any questions.”

[22]All of the above facts were known to HHJ Ralls QC when he heard the matter on 25 November 2013. Amongst other things, he had available to him and had clearly read the transcript of proceedings before Dingemans J.

The Hearing on 25 November

[23]By the time of this hearing, the Respondent council reported that the Order they sought in relation to the Appellant was a declaration only. They no longer sought committal, suspended committal or any penalty. As

the judge stated in the course of the hearing:

“This is all historic and the Claimant does not seek any Order for committal of [the Appellant].”

[24]In the course of the hearing the judge made it clear that he was fully alive to the detail of the case. He took an active view of the realities of the situation. He considered that there was “some prima facie evidence that Ms Bunning is in breach of the Court Order”. However, he considered that, since the Appellant had left the site, a declaration would be of little practical use to the Respondent (Bundle, pp 19/91). There was little or no utility in such a declaration, and he declined to make such an Order. Unsurprisingly, the Appellant has raised no complaint about that outcome.

[25]The Appellant initially sought an order for wasted costs against the Respondent. However, in the face of the judge’s conclusion, that application was withdrawn. The Appellant’s solicitor, however, went on to apply for costs, essentially on the basis that the Appellant was always bound to succeed. The matter should not have proceeded this far. In oral submissions, the Appellant’s solicitor Mr Tear argued that the judge could not infer from the fact that(1) the Appellant’s name appeared as one of the authors of the letter dated 6 May, and

(2) the fact that Mr Taylor is illiterate, that this Appellant was an author of the letter. Mr Tear argued that no contempt could be proved “purely on inferences”.

[26]The judge rejected those contentions. In the course of his judgment he said:

“Mr Tear says that I should order the Council to pay costs on the basis these proceedings have been taken in an abusive fashion which he sets out in the skeleton argument and the council did not have prima facie evidence. I am afraid that I disagree with him. I think there was prima facie evidence and if that evidence was not answered by Ms Bunning, I think the Court could well have drawn the inference that she was in breach and may have taken a more severe view.”

[27]Having noted that the Respondents now sought only a declaration of the Appellant’s breach and noting that the Appellant’s circumstances had changed,

the judge said this:

“In the circumstances I can’t see any public interest for these proceedings to be continued, particularly in terms of the public expense. Ms Bunning, although she does not attend today or did not attend on the last occasion, is represented by her solicitor with the benefit of legal aid funding. I can understand why it is appropriate that she should have funding in a case like this where her liberty is at risk, but as things worked out on the facts of this case I can’t see that there is any point in the matter continuing … In pragmatic terms there is simply no point in doing it. This case needs to be stopped now. We should not go on simply wasting court time and public money pursuing money for wholly academic purposes. I intend then to make no order in relation to the application effectively to dismiss the application for the injunction against her and make no order for costs … I make no order for costs for the reasons I have already adumbrated, namely that I that there is a prima facie evidence against her. She has taken very little part in the proceedings and although there may be some force in the more technical arguments being advanced now on her behalf… it would be wrong since I caused the council to stop proceedings at this stage, to make any order against them. I am satisfied there will be no prejudice to Ms Bunning herself. She is, as I say, in receipt of legal aid funding and that is the end of the matter so far as she is concerned.”

The Arguments

[28]In essence, the Appellant advances two arguments. The first and principal proposition is that the Appellant was the successful party and costs should follow the event. She was successful because the outcome was the result she sought. Ms Ward says that the application to commit the Appellant was “flawed from the inception” and that it was wrong in principle, irrational and therefore appealable to make no order as to costs. Secondly, the Appellant argues that it was wrong in principle to pay regard to the fact that the Appellant was legally aided. It was inappropriate to take this approach on the basis that an award of costs would be a transfer from one public fund to another.

[29]The Respondent argues that it is too simplistic to say that the Appellant was a “successful” party. The matter had not been tried out. The judge took a pragmatic view and brought matters to a close.

[30]Moreover, before the judge could properly have made a costs order adverse to the Respondent council, he would have had to hear the evidence on service, and the evidence as to the potential utility of the case, at each successive stage of the proceedings. Indeed the judge acknowledged this in an exchange with Counsel for the Respondent:

“JUDGE RALLS: If Mr Tear is going to persuade me to do anything otherwise [than no order for costs] it will be to have a full hearing. In other words, there is no halfway house. If he persuades me that I am wrong then so be it, we will hear evidence and crack on with it. MS SHEIKH: I am grateful, my Lord, because I have submissions to make then on the culpability of Ms Bunning.”

[31]The Respondent emphasises the wide discretion under CPR part 44.2(1)(a) as to whether costs should be paid by one party to another. The Appellant is wrong in arguing that “detailed and strong reasonable reasons” (Appellant’s skeleton, paragraph 32) are required before a judge can properly decide that costs should not follow the event. The Respondent concedes that, generally speaking, the fact that a party is legally aided rather than privately funded should not affect that party’s right to recover costs, although the Respondent does rely on some dicta which leave open that possibility.

[32]Specifically, the Respondent refers to R (Boxall) v Waltham Forrest London Borough Council

(2000) 4 CCLR 258

, where Scott-Baker J said:

“I am satisfied that the fact that the Claimants are legally aided in the present case … is immaterial” (paragraph 13) and, in paragraph 22, stated: “It will ordinarily be irrelevant that the Claimant is legally aided.”

[33]Further, in R (M) v Mayor and Burgess of the London Borough of Croydon

[2012] 1 WLR 2607

, Lord Neuberger stated:

“…the basis upon which the successful party’s lawyers are funded, whether privately in the traditional way, under a ‘no win no fee’ basis, by the Community Legal Service, by a Law Centre, or on a pro bono arrangement, will rarely, if ever, make any difference to that party’s right to recover costs.”

The Respondent relies on that statement of principle as leaving open a degree of discretion, in an appropriate case, permitting the judge to take the legally aided status of a party or parties into account in the award of costs.

[34]Overall, the thrust of the Respondent’s submissions is that the judge’s decision must be viewed in the round and as reflecting all of the circumstances in the case. Viewed in that way his decision was perfectly proper.

Conclusions

[35]In the Boxall case, Scott-Baker J laid down guidelines in relation to compromised judicial review claims. His judgment was focussed upon that particular category of case, a point underpinned by the fifth principle set down in paragraph 22 of his judgment:

“In the absence of a good reason to make any other order the fall back is to make no order as to costs.”

That principle certainly does not apply to ordinary civil proceedings, nor to a case such as this: criminal proceedings heard in the High Court.

[36]Nevertheless, it does seem to me that two of the guidelines set out by Scott-Baker J are relevant to proceedings such as this: they are again set out in paragraph 22 of Boxall:

“(ii) it will ordinarily be irrelevant that the Claimant is legally aided; (iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional costs.”

[37]In the Croydon case, the Court of Appeal was again concerned with judicial review proceedings. In the course of his judgment, Lord Neuberger MR conducted a considerable review of authority on costs, particularly as bearing on costs in judicial review proceedings. In the course of his judgment, Lord Neuberger said this:

“57. A fifth argument, which also applies to ordinary civil cases, is based on a number of miscellaneous possible factual situations which arise in Administrative Court cases. They involve various failings on the part of the claimant, such as not having set out his case clearly in his letter before action, adding to his evidence well after the issue of proceedings, including a claim which does not succeed, or pursuing the claim in an unreasonable manner. In cases where such an argument is raised by the defendants, the court may well be persuaded either that it would be wrong to award the claimant any costs for the reasons canvassed by Chadwick LJ in BCT at para 24, or that the claimant should only receive a proportion of his costs. As in any civil litigation, a claimant who succeeds is only entitled to his costs in the absence of good reason to the contrary. Thus, where the claim has been conceded in a consent order which does not deal with costs, the court will not award the claimant all or any of his costs save to the extent that it is satisfied, without looking at matters in detail, that the claimant is so entitled.”

[38]I accept, of course, that CPR 44.2(2) provides that the general rule is that the unsuccessful party will bear the costs of proceedings. However, the discretion granted to a trial judge is there for a reason. As Davis LJ emphasised in F&C Alternative (Holdings) Limited v Barthelemy and Another (No 3)

[2013] 1 WLR 548

“42. Decisions on costs after a trial are pre-eminently matters of discretion and evaluation. Further, it is particularly important to bear in mind that a trial judge – especially after a trial such as this one – will have a knowledge of and feel for a case which an appellate court cannot begin to replicate. The ultimate test, of course, for the purposes of an appeal of this kind is whether the decision challenged is wrong. But it is well established that an appellate court may only interfere if the decision on costs is wrong in principle; or if it involves taking into account a matter which should not have been taken into account or failing to take into account a matter which should have been taken into account; or if it is plainly unsustainable.”

[39]I accept also that it is important for costs orders to be made in favour of successful legally-aided parties. We were told that such an order makes a very considerable difference to those acting, who receive a very much reduced rate if paid by the Legal Aid Agency rather than the unsuccessful party. It will also be evident that if successful legally-aided parties do not obtain costs orders when they should, a false picture will emerge as to the care the Agency takes of public money: legal aid litigation will appear to be less effective and the judgements of the Agency less well-considered than they should.

[40]Bearing those points in mind, however, it is necessary to understand what HHJ Ralls QC was really doing in the course of his conclusions in this case. He was of the view that there was a proper basis (“a prima facie case”) for contempt in relation to the Appellant. But he was also of the view that the declaration sought by the Respondent was of no practical value or utility. The breakdown in relationship between the Appellant and Mr Taylor was such that there was no realistic prospect of reoccupation of the premises by the Appellant. The judge clearly had in mind the extended litigation history in this case. He was alive to the fact that an adverse costs order would mean he would have to try out all the issues. It was in those circumstances that he brought the matter to the substantive conclusion that he did, an outcome accepted by the Respondent and welcomed by the Appellant. In my judgment he was right in that approach. It was relevant to the question of the continued utility of the litigation that both parties were publicly funded. The public would be astonished if it were to be suggested otherwise.

[41]In my judgment, HHJ Ralls QC did not fall into error in the order he made. The order was not wrong in principle. Insofar as he had a mind to the Appellant’s legally aided status, it seems to me that fact bore on the utility of continuing the proceedings. If he had tried all the issues to a conclusion, there is no indication that the Appellant’s legally-aided status would have affected in any way the costs order he then made, apart from compliance with relevant statute as to the form of the order and its enforcement, if adverse to the Appellant.

[42]I do not accept the submission that the Appellant was the “successful party”, in the rather simplistic way advanced. She had the outcome she desired, but if the matter had proceeded as it might, she was at real risk of being the losing party. The Respondent council had produced sufficient evidence to deal with the contested issue of service, and to establish knowledge of the order. Occupation of the premises during the relevant period was admitted.

[43]In those circumstances, I regard the judge’s order as a proper exercise of his undoubted discretion. For those reasons, I would dismiss the appeal.

Lord Justice Kitchin:

[44]I agree.