Murley, R (on the application of) v Secretary of State for Transport [2005] EWHC 2324 (Admin)

Case No CO/2464/2005[2005] EWHC 2324 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 3rd November 2005
Strand
London WC2
B E F O R E:
MR JUSTICE BEAN
Between
THE QUEEN ON THE APPLICATION OF COLIN FRANCIS MURLEYClaimant-v-
Between
SECRETARY OF STATE FOR TRANSPORTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
THE CLAIMANT APPEARED IN PERSON for in personMS S J DAVIES (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE BEAN: This is a claim made by Mr Colin Francis Murley pursuant to paragraph 2 of Schedule 2 to the Highways Act 1980 and Section 23 of the Acquisition of Land Act 1981. By this application to the Administrative Court, Mr Murley seeks to challenge the making of a number of orders relating to a scheme for the improvement of the A30 Trunk Road between Bodmin and Indian Queens in Cornwall. The orders provided for the compulsory purchase of land needed for the improvement of that part of the A30 and for slip roads and junctions and so forth. The new road was to be designated a trunk road and the superseded road was to have its trunk road designation removed.[2]A public inquiry into the proposed orders took place early in 2004 before an inspector appointed by the First Secretary of State and the Secretary of State for Transport, to whom I will refer jointly as "the Secretaries of State". The Inspector reported to the Secretaries of State, in a report dated 28th April 2004, and they announced their decision to make the orders on 29th November 2004. The orders were made on 12th January 2005 and confirmation was published on 17th February 2005.[3]Mr Murley has told me today, and I accept, that he holds the view as a Cornishman that there is discrimination against the citizens of Cornwall in that the Prince of Wales, in his capacity as Duke of Cornwall, has various privileges by comparison with ordinary subjects of the Crown. These proceedings, however, are applications under two specific statutes, the Highways Act 1980 and the Acquisition of Land Act 1981, and a challenge to the making of orders in relation to the A30 made under those Acts. The case cannot, however interesting it would be, be a forum for a general inquiry into whether the Duchy of Cornwall occupies a privileged position in Cornwall and, if so, whether that contravenes any principle of domestic law, the Human Rights Convention or European Union Law.[4]Mr Murley lives some 20 miles from the new A30 but, in February 2003, he acquired from Stuart Pearce and Melba Pearce, for the consideration of £1, tinning rights in a plot of land known as Deeptye Farm, which is on the route of the new road. The relevant plot of land had been registered in the Truro County Court as successor to the ancient jurisdiction of the Court of the Stannaries in 2002. The document signed by Mr Pearce, Mrs Pearce, Mr Murley and his co-lessor, Mr Trathen, recorded that Mr Murley and Mr Trathen, described as "the party of the second part":
"...shall have and enjoy the farm of tin, shall have the right to seek, work and take the said farm of tin to his own and exclusive use and profit without let or hindrance and that the said party of the second part shall not be molested nor grieved nor otherwise frustrated in his endeavours therein by the said party of the first part, their agents or servants or of any other persons whatsoever for the periods of this agreement."
The lease was stated to be for a five-year period and to be renewable. Mr Pearce and Mrs Pearce are each described as "Bounder and Lord of the soil", Mr Murley and Mr Trathen as "Privileged Tinner and Co-adventurer".[5]The lease of tinning rights was terminated on 2nd December 2004 and the claimant and Mr Trathen accordingly ceased to have any interest in the relevant land. The orders were made on 12th January 2005.[6]I have already referred to the public inquiry into the proposed orders in early 2004. Mr Murley was an objector at the inquiry and he made submissions to the inquiry, raising far-reaching legal issues about the Duchy of Cornwall. The Inspector also had before him, as I have before me, evidence from the Duchy of Cornwall stating that the road scheme did not involve land owned by the Duchy of Cornwall. Indeed, the Duchy, I am told, took no part in the inquiry. Mr Murley, however, submits, on the basis of some detailed historic research, that the plot of land in which he acquired tinning rights at Goss Moor was seized by the Crown by an Act of Parliament of 1817 and that the Duchy of Cornwall retains at least the right to exercise tinning and possibly other mineral rights in the land, even if Mr and Mrs Pearce were the freehold owners of the land in 2003 and 2004. Be that as it may, the position, as it stood on 12th January 2005 when the orders were made, is that Mr Murley no longer had any interest, even tinning rights, in the relevant land, because the tinning agreement between him and Mr Trathen and the Pearces had terminated on 2nd December 2004; and the Duchy of Cornwall did not own that land, or any other relevant land of which there is evidence before me, although, if Mr Murley is right, the Duchy may have had some potential mineral rights in that land and other land in Cornwall by virtue of its historically privileged position.[7]The two statutes under which Mr Murley makes this application, the Highways Act and the Acquisition of Land Act, each use the phrase "person aggrieved" to describe those who may make an application to the High Court. In the case of the Highways Act 1980, Schedule 2, paragraph 2, the phrase is "a person aggrieved by a scheme or order to which this schedule applies". In the case of the Acquisition of Land Act 1981, Section 23(1) or 23(2), it is, in each case, "any person aggrieved by a compulsory purchase order".[8]At first sight one would think that Mr Murley does not fall within that statutory provision. At the date of the order, he had had not even tinning rights in the relevant land. He had never owned the relevant land and his home is many miles away, so he is not, for example, in the position of somebody a short distance from a road to be widened whose sleep may be disturbed by increased noise. He might, uncharitably, be described, in the words of Lord Denning in Attorney General of Gambia v N'Jie [1961] AC 617 634, as "a mere busybody who is interfering in things which do not concern him", but that would be a harsh way of describing Mr Murley. On the other hand, it is difficult to see that, within the terms of the same speech of Lord Denning, he is somebody who can say that an order has been made "which prejudicially affects his interests". In the absence of authority, I should have been disposed to hold that Mr Murley is not a "person aggrieved" within either statute. But Ms Sarah-Jane Davies for the defendant has very properly drawn my attention to a decision of Ackner J, as he then was, in Turner v Secretary of State for the Environment [1973] P&CR 123 at 139, where the judge said that he could see good reason, so long as the grounds of appeal were appropriately restricted, for ensuring that:
"... any person who, in the ordinary sense of the word, is aggrieved by the decision, and certainly any person who has attended and made representations at the inquiry, should have the right to establish in the courts that the decision is bad in law because it is ultra vires or for some other good reason."
With that dictum of an extremely distinguished judge in his favour, it seems to me that I should hold, or at least assume for present purposes, that Mr Murley is a person aggrieved.[9]That strictly makes it unnecessary to decide whether he is also a victim or potential victim under the Human Rights Act. Section 7 of that Act provides that:
"(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may - (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, "but only if he is (or would be) a victim of the unlawful act."
The word "victim", for the purposes of the Human Rights Act, may be treated, in my view, as equivalent for present purposes to, in Lord Denning's phraseology, somebody whose interests are prejudicially affected. It is difficult to see that, at the time of the making of the orders, Mr Murley fell within that definition. The fact that he was allowed by the Inspector to raise objections at the inquiry appears to bring him within the observations of Ackner J in Turner's case but does not make him a victim within Section 7 of the Human Rights Act 1998. Nor is he a potential victim. The two parenthetical phrases in Section 7(1), first, "(or proposes to act)", and second, "(or would be)" [a victim], must be read together. A person has a claim under Section 7 if he is a victim of an act by a public authority, and also has a claim if he would be a victim of a proposed act of a public authority, in either case if the act or proposed act is made unlawful by Section 6. But I do not think that applies here.[10]I proceed to Ms Davies' second line of defence, which is to say that the claim is hypothetical. It is trite law, for example see Ainsbury v Millington [1987] 1 WLR 379, that the courts decide disputes between the parties and do not pronounce on abstract questions of law when there is no dispute to be resolved, however interesting, or indeed important, the hypothetical dispute is. In this case, Ms Davies is correct in my judgment to say that the orders raise no issue as to any right or interest of the claimant, whether Stannary rights or otherwise.[11]Moreover, Mr Murley's claim that there is discrimination between him and the Duchy of Cornwall cannot be sustained by reference to the making of these orders. The making of the orders on 12th January 2005 did not deprive Mr Murley of anything; nor, so far as I can see, did it deprive the Duchy of Cornwall of anything, since the evidence before the Inspector was that Duchy land was not affected. Mr Murley relies on the submission that the Duchy of Cornwall has, in effect, rights of veto under certain provisions of the Highways Act. Ms Davies has referred me to Section 327. It appears that, at least arguably, if Crown consent or Duchy consent is refused to a particular road building or road widening scheme which affects the interests of the Crown or the Duchy (as the case may be), that may create certain difficulties. But, interesting though that is as a route down which to venture, it does not apply in this case. Even if the Duchy has such a right, it made no attempt to exercise it here. Nor, as I say, did Mr Murley have any relevant rights at the date of the making of the order.[12]It seems to me, therefore, that his applications, whether under the Highways Act 1980 or the Acquisition of Land Act 1981, cannot possibly succeed and I must dismiss his application. I pay tribute to him for the massive and scholarly learning which he has deployed in his researches into the position of the Duchy and the modern equivalents of the ancient law relating to the Stannaries, but I cannot embark on them in the present case. Accordingly his claims must fail.[13]MS DAVIES: My Lord, I echo what your Lordship said earlier. I agree that what Mr Murley has produced is extremely interesting and it is an area I have not travelled into either. However, in view of your Lordship's judgment, the question of costs arises. Does your Lordship have a copy of the schedule of costs which was provided to the court?

MR JUSTICE BEAN: No.

[15]MS DAVIES: In that case, if I can hand another copy up. And a copy of that was sent to Mr Murley. (pause)[16]It was posted, my Lord, on Monday or Tuesday of this week, but it seems that Mr Murley has not received it. Unfortunately, I will have to hand him a copy now.

MR JUSTICE BEAN: Mr Murley, you have not seen this before?

[18]MR MURLEY: No, my Lord, I have not seen this. We came up two or three days earlier. It is possibly lying around.[19]MR JUSTICE BEAN: Ms Davies, I am not sure that I am entitled to embark on a summary assessment, unless Mr Murley agrees, when he has not had 24 hours advance notice of the schedule.[20]MS DAVIES: Well, my Lord, the rules require it to be sent to him 24 hours in advance, which it was, at the address that we have for him. Obviously, I do not want Mr Murley put at any disadvantage.[21]MR JUSTICE BEAN: No. Well, the first question is whether you should have an order for costs and the second is, if so, should they be assessed by me summarily now or by a costs judge in detail later on. Let us deal with the first question first.[22]MS DAVIES: Well, my Lord, I simply say, as your Lordship knows, the usual rule is that costs follow the event and this claim has given rise to not insubstantial costs on the part of those who instruct me because a great deal of material has been put forward which had to be looked into. I attempted to keep those costs to their lowest level by making submissions to your Lordship only on the issues that I did deal with in my skeleton argument and keep it within narrow confines but, in my submission, those costs arise and there is no reason why the usual rules should not apply.

MR JUSTICE BEAN: Mr Murley, what do you say about that?

[24]MR MURLEY: Well, my Lord, I looked upon these proceedings as an extension of the actual public enquiry. I am actually astonished at these sort of costs that have arisen. We have, from the Inspector's report, his statement that he regarded a lot of the information that I had given him as legal and he did not seem to see himself to be in the position to make a statement on it. The Secretary of State said that he saw no difference between the law of England being applied to Cornwall equally as to the rest of the country and I think we have demonstrated that the acts quote, especially in relation the Crown Estate, that there is a serious case of discrimination against the people of Cornwall. I mean, that stands with the information provided and we are here to -- not making any claim against the Government in terms of financial gain in any way, shape or form, so I am surprised that the extent that it is against me.[25]MR JUSTICE BEAN: Dealing first with the point of principle: while I appreciate that Mr Murley sincerely believes in the rightness of his claim, that is nevertheless not a reason to depart from the usual principle that the loser must pay costs. It is true that objectors at planning inquiries do not have to pay costs but that is an entirely different regime and, unfortunately, a litigant who takes the process of objecting to a planning inquiry further and makes an application to the High Court is expected to pay the likely costs incurred as a result if he loses.[26]Now, as to the question of whether they should be assessed summarily or in detail, Mr Murley, the rules are not terribly clear. The usual rule is that they have to be served on you with 24 hours notice and service is generally at the address that the party has given to the other side. On the other hand, I accept what you say, that you came to London a couple of days earlier, and, indeed, why shouldn't you. The disadvantage of sending it off for a detailed assessment is that that would mean, if you and the Treasury Solicitor are not able to agree what the figure should be, a further hearing, probably in this building, before another judge, starting again -- another judge who does not know about the case and who has to look at the documents and go through the bill. If you say you would rather do it that way, then that is what I should do. If, on the other hand, you would like me to have a look at it and form my own view today as to how much it should be, then I will do that. I really leave it to you.[27]MR MURLEY: With respect, my Lord, I do not understand the difference between the options you have offered me.[28]MR JUSTICE BEAN: It is either me now or the specialist costs judge at some other time, weeks or months from now. Those are the two ways in which costs are assessed.[29]MR MURLEY: I presume I would have to accept your version.[30]MR JUSTICE BEAN: Well, I am saying I will do either. If you feel that you have been taken by surprise, because this was sent to your home and you would like the time to think about it and possibly draw up written objections, that is fine, then I will not deal with it. But if you are content to deal with it today --[31]MR MURLEY: Yes, that is what I mean, for you to do it.[32]MR JUSTICE BEAN: All right. Let us do that. If we look at the details, Mr Murley, the hourly rates claimed, given what lawyers charge, do not, I must say, seem to me excessive. The question is really whether that much work, that number of hours, was required and then, when we get to the end of the bill, whether, looking at the thing as a whole, the bill was excessive. Ms Davies, would you like to go first and explain to me, and to Mr Murley, why this bill should be allowed in full.[33]MS DAVIES: In fact, my Lord, I am going to invite you to knock a little bit off anyway, because I note that attendance at court was estimated as 4 hours and we have not troubled the court for that long. In fact, it seems to be that we will be done by half past twelve, so that would be two hours, not four hours. So that is an item that we can certainly reduce.[34]My Lord, as I understand it, my fee has also been assessed on the assumption that I would be in court for four hours. My hourly rate is £100 an hour, so £200 can be reduced from it for the same reason.[35]MR JUSTICE BEAN: Yes. Does VAT enter into this anywhere, or is the Treasury Solicitor exempt?[36]MS DAVIES: I do not think VAT enters into it because Mr Murley is not using solicitors as well.[37]MR JUSTICE BEAN: Good, right. Anything else as to the details?[38]MS DAVIES: Well, my Lord, I would say that this is a reasonable sum, given the volume of documentation that has been produced. It has been necessary for those instructing me and for me to go through it, particularly in a case when somebody is acting in person. It is important because in fact there is a good point in there that I have had to put in order and bring to the court's attention. So I have had to go through that and that, unfortunately, does take a little time. In those circumstances, in my submission that is, overall, a reasonable amount of time to spend on the documents. I was initially instructed and gave some advice to that extent.[39]MR JUSTICE BEAN: Thank you very much. Now, Mr Murley, what would you like to say about the costs bill?[40]MR MURLEY: Well, at the beginning of these proceedings, I did complete a form 160, which did exempt me from the initial entry costs. I was assuming that that might, in some way, apply throughout the case.[41]MR JUSTICE BEAN: I am afraid it does not. Did you seek legal assistance or indeed --[42]MR MURLEY: Apparently that was not possible either. I had gone through this on principle, my Lord, and, being on a pension, this has come as quite a shock.[43]MS DAVIES: I am sorry to interrupt. May I just make clear that a letter was written on 12th May of this year, by those instructing me, to Mr Murley, as is the usual practice, which says:
"We should point out at this stage ... that it is the practice of the Secretary of State to seek the payment of his costs by the Claimant if he is successful in defending proceedings..."
And it refers to Part 44 of the rules. So a warning letter was written as long ago as May, my Lord.[44]MR MURLEY: I must have looked at that in terms of Cornish wages, rather than the wages here, my Lord.[45]MR JUSTICE BEAN: Yes. Well, really you are saying it is an awful lot for you to have to pay. That is what it comes to.[46]MR MURLEY: That is about it my Lord.

MR JUSTICE BEAN: Yes, thank you.

[48]I turn to the question of costs. Both parties are agreed that I should make a summary assessment rather than leave the matter for detailed assessment by a costs judge. The total amount claimed is £5,130. The hourly rates for the more senior solicitor engaged on the case, of £160 per hour, and the more junior one, £100 an hour, do not seem to me excessive. Mr Murley says, and I am very sympathetic to this, that they are a lot more than the wages most people earn in Cornwall. But running a solicitor's office is an expensive business. The claim was defended from the 3's department in London, and these are by no means excessive rates for London lawyers.[49]As to the time spent, Ms Davies concedes that a saving of about £500 has been achieved by the fact that this hearing has only occupied some two hours and might have taken longer but, that apart, she says that the hours spent were reasonable, given that there was a good deal to be read and considered. I must say that I agree. The documentation submitted by Mr Murley was extensive and raised some unusual issues. On the other hand, it is right to say that, as will be apparent from my judgment, Mr Murley did succeed on one issue (with the very proper assistance of Ms Davies drawing my attention to the authorities), which was that he was found by me to be, at least arguably, a person aggrieved within the meaning of the Acts.[50]He submits that anything like this claim is a great deal for him to pay. I take that into account, although I probably should not. The rule is that the loser is generally expected to pay the costs and lack of means is not an argument against it. Taking all these factors into account, I summarily assess the costs that Mr Murley must pay at £3,000.[51]Are there any other matters to be dealt with? Thank you both very much for your assistance.