Maroudas v Secretary of State for Environment, Food and Rural Affairs & Anor [2009] EWHC 628 (Admin)

[2009] EWHC 628 (Admin)Case No CO/6826/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 9th March 2009
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE MACKIE QC
Between
FREDERICK IAN MAROUDASApplicantv
Between
THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRSRespondentOXFORDSHIRE COUNTY COUNCILInterested Party
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Applicant appeared in person for in personPhilip Coppel (instructed by Defra) appeared for Defendant for The Interested Party was not represented and did not attend
J U D G M E N T

JUDGE MACKIE:

[1]This has been a short application, argued with admirable brevity and clarity both by the applicant, Mr Maroudas, who appears in person, and also by Mr Coppel, counsel for the respondent Secretary of State.[2]Section 67 of the Natural Environment and Rural Communities Act 2006 extinguishes any public rights of way for mechanically propelled vehicles over byways, but subject to some exceptions. If one of those sections applies, the rights of mechanically propelled vehicles are preserved. An inspector has said that an exception applies in this case. Objectors, led by Mr Maroudas, say that she was wrong. Although it is a short point, and although the statutory background is very helpfully set out in detail in the decision of the Court of Appeal in R (Warden and Fellows of Winchester College and Humphrey Feeds Limited v Hampshire County Council and the Secretary of State for Environment and Rural Affairs [2008] EWCA Civ 431, I have to go into some of that background in order to make sense of what follows.[3]Section 53 of the Wildlife and Countryside Act 1981 imposes a duty on a surveying authority to keep a definitive map and statement of public rights of way in its area under continuous review. Section 53(2) contains provisions requiring the surveying authority to make and keep the map up to date. Section 53(5) provides:
"Any person may apply to the authority for an order under subsection (2) which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (b) or (c) of subsection (3); and the provisions of Schedule 14 shall have effect as to the making and determination of applications under this subsection."
Schedule 14 of the Act provides:
"1 An application shall be made in the prescribed form and shall be accompanied by— (a) a map drawn to the prescribed scale and showing the way or ways to which the application relates; and (b) copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application."
[4]Under the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993, Regulation 8 provides:
"(1) An application for a modification order shall be in the form set out in Schedule 7 to these Regulations or in a form substantially to the like effect, with such insertions or omissions as are necessary in any particular case."
I will not read out Schedule 7, but I will come to some of what it says a bit later. There are then regulations relating to the map and other aspects.[5]Section 67(1) of the Natural Environment and Rural Communities Act 2006 provides:
"An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement— (a) was not shown in a definitive map and statement, or (b) was shown in a definitive map and statement only as a footpath, bridleway or restricted byway. But this is subject to [some subsections]."
Section 67(3) provides:
"Subsection (1) does not apply to an existing public right of way over a way if— (a) before the relevant date, an application was made under section 53(5) of the Wildlife and Countryside Act 1981 (c. 69) for an order making modifications to the definitive map and statement so as to show the way as a byway open to all traffic (b) before commencement, the surveying authority has made a determination under paragraph 3 of Schedule 14 to the 1981 Act in respect of such an application, or (c) before commencement, a person with an interest in land has made such an application and, immediately before commencement, use of the way for mechanically propelled vehicles— (i) was reasonably necessary to enable that person to obtain access to the land, or (ii)would have been reasonably necessary to enable that person to obtain access to a part of that land if he had had an interest in that part only."
The relevant date in England was 20th January 2005.[6]Although this application was originally brought as an application for judicial review, which was at one point considered by a judge, it is clear that the jurisdiction of the court in relation to challenges to decisions under the legislation that I have referred to, must be made under paragraph 12 of Schedule 15 of the 1981 Act, which provides:
"(1)If any person is aggrieved by an order... [they may] make an application to the High Court... (2)On any such application the High Court may, if satisfied that the order is not within those powers or that the interests of the applicant have been substantially prejudiced by a failure to comply with those requirements, quash the order, or any provision of the order, either generally or in so far as it affects the interests of the applicant. (3)Except as provided by this paragraph, the validity of an order shall not be questioned in any legal proceedings whatsoever."
So this application comes under paragraph 12.[7]It is common ground that in Norman and Another v Secretary of State for Environment, Food and Rural Affairs [2007] EWCA Civ 334 Laws LJ observed that an application under paragraph 12 is limited to ordinary public law grounds. I shall say some more about that in a moment.[8]The application which has led to this piece of litigation concerns a byway known as Shiplake Restricted Byway 1. The route runs east from Mill Lane, Shiplake, to the River Thames at the junction with Footpaths 7 and 29 at Shiplake. Full details of the route are set out in the order which is subject to this application, and there is a plan attached to it.[9]The factual background is that in February 1997 Mr Robin Drinkwater, who was then the owner of the relevant land, applied for an order under section 53(2) using an application form. That application form was not signed or dated by him in the relevant boxes and it was in respect of a byway going from what was described as "the railway viaduct" to the stone steps at the River Thames. It is common ground that that application form description relates to the eastern end of this byway, which is split in the middle by a railway, and not to the western end.[10]The form is very similar to the Schedule 7 form which is required to be used. There are some very small differences, one, called "Title of definitive map and statement", that is not there, and there are another couple of words missing. Mr Maroudas drew attention to that simply to show what he submits is the sort of de minimis failure to comply with Schedule 7, which he says is permitted, unlike major failings, such as the absence of the date and the signature.[11]The application form was submitted and, in response, on 25th March 1997, the Senior Rights of Way Officer at Oxfordshire County Council wrote to Mr Drinkwater saying this:
"I refer to your application to reclassifyCRB No 1 Shiplake as a public byway open to all traffic on the definitive map of public rights of way. Enclosed is a summary and plan of the application. This is intended to be used in consultation with interested parties. In order to proceed with this next stage, I would be grateful if you could confirm in writingthat the enclosed details are an accurate representation of your application. In particular you will see from these details that I have shown the entire length of CRB 1 as being partof your application. To commence the reclassification from the railway bridge would leave an anomaly of a section of the route as remaining as CRB. I trust, therefore, that it was your intention to include the entire route within your application, although I would appreciate your clarification on this point. I look forward to hearing from you."
One imagines that it probably was not Mr Drinkwater's intention, given the explicit description given in paragraph 3 of his original form, but he replied on 22nd April 1997 in a letter which was dated and signed, saying this: "Dear Sir, I cannot foresee a problem through co-operating with the plan to incorporate the whole road into the application, so please do that if you will. Many thanks. Robin L Drinkwater".[12]There is no suggestion, in this case, that there was anything opportunistic about the application that was made in 1997, long before questions arose as to making applications to get around what would otherwise be the mandatory provisions of the Act.[13]An inspector was appointed by the Secretary of State and a hearing was held on 30th April 2008, which led in turn to a decision prepared by the Inspector, Ms Heidi Cruickshank. The decision which is challenged was dated 21st May 2008.[14]The decision must, of course, be read as a whole but, in the interests of brevity, I refer only to the paragraphs which have been the subject of controversy this morning. In paragraphs 64-69 the Inspector says this:
"64.The order was made following an application to the OMA in 1997 and at that time the order route was recorded as a RUPP. From 2nd May 2006 it was recorded as a restricted byway by virtue of section 47 of the Countryside and Rights of Way Act 2000. The restricted byway commencement order requires that any outstanding definitive map modification orders to reclassify RUPPs must be processed to a final determination. In determining the order above I am satisfied, on the balance of probabilities, that the order route fulfils the definition of a BOAT and I must now consider whether the public vehicular rights have been extinguished by virtue of the 2006 Act, or whether any of the exceptions set out in that Act apply to this route. 65.The relevant exceptions arise under section 67(3) of the 2006 Act, 67(3)(a) applying where an application for a route to be recorded with the status of BOAT was made before 20th January 2005 and section 67(3)(b) where such an application was determined by the commencement date, 2nd May 2006. An application form was received by the OMA on 7th February 1997 and the application was determined by the OMA before an order was made in 1999. That order was submitted to the Planning Inspectorate with a request not to confirm it due to a technical error and replaced with the current order. 66.By reference to Winchester the objectors argued that the application was not valid as it did not comply with paragraph 1 of Schedule 14 to the 1981 Act. A number of matters relating to this point were discussed at the hearing. However, I consider, in light of the judgment, that even though the application was not complete when first submitted, provided it was complete by the relevant date, then it would engage the exception in section 67(3) and any rights of way found to exist over the route in question would have been preserved. 67.I am satisfied, on the balance of probabilities, taking all the evidence relating to the application process, that the application was complete and referred to the whole of the order route. I note that the application was not signed but, in my opinion, it was in the prescribed form, or substantially to the like effect and as noted in Winchester minor departures will not invalidate an application. 68.The application included the relevant documents and maps required and notices had been posted on site and served on the landowners by the end of 1997, 8 years before the relevant date. Whilst it was argued that the application only related to part of the route, east of the viaduct, I consider that by the end of 1997 the whole of the order route was included. I consider, on the balance of probabilities, that the exception under section 67(3)(a) applies. 69.The determination by the OMA was at least 7 years before commencement. As a result, I am satisfied that the exception under section 67(3)(b) applies. The public vehicular rights have been preserved."
[15]The applicant says that the form was not properly filled out and its obligation to enclose documents, including the map, was not fulfilled. It follows, therefore, that the application was of no effect. The Secretary of State argues that one needs to look at the application as a whole.[16]Before setting out and evaluating the competing submissions, I must first refer to the Winchester case, which I have mentioned earlier, and to particular paragraphs relied on by the parties. The matter at issue in that case was directly relevant to the issues in this case. At paragraph 6 the court, in the form of the judgment of Dyson LJ, with which Wall and Thomas LJJ agreed, says that the principle issue of law raised by that appeal is what is meant by an application made in accordance with paragraph 1, Schedule 14 of the 1981 Act, within the meaning of section 67(6) of the 2006 Act. Mr Maroudas points out that the court had it in mind, as one sees from the rest of paragraph 6, that the questions it was determining would have an effect on many cases throughout the country.[17]At paragraph 33, in the course of considering submissions, the judgment says this, in a passage drawn to my attention by Mr Maroudas:
"Thus, if the authority has all the information it needs to determine the application in the absence of all or any of the documents that are required to accompany the application, it has the right to waive the requirement and determine the application. There would be no point in insisting on the provision of documents which are not needed to enable the application to be determined. On the other hand, if documents that are needed for this purpose are not supplied, the authority would no doubt take the view that, until they are supplied, it would not be 'reasonably practicable'..."
The passage goes on to cite similar submissions which, as Mr Maroudas correctly points out, were roundly rejected by the Court of Appeal.[18]In paragraphs 36 and 37 the court says this:
"36.It is important not to lose sight of the precise question raised by the first issue. It is whether, for the purposes of section 67(3) of the 2006 Act, the Tilbury and Fosberry applications were made in accordance with paragraph 1 of Schedule 14 to the 1981 Act. This question is not the wider question of whether it was open to the Council to treat an application which was not made in accordance with that paragraph as if it had been so made because the failure could be characterised as a breach of a procedural requirement rather than a breach which was so fundamental that (to use the judge's language) the application failed to 'constitute an application' at all. I readily accept that the wider question is relevant and important in the context of applications made under section 53(5) generally and whether an authority has jurisdiction to make a determination pursuant to paragraph 3 of Schedule 14. 37.But the question that arises in relation to section 67(6) is not whether the Council had jurisdiction to waive breaches of the requirements of paragraph 1. It is whether the applications were made in accordance with paragraph 1."
[19]The central paragraphs in the judgment, so far as are relevant to this case, are paragraphs 46 and 47 of the judgment of Dyson LJ, in which he says:
"46.In my judgement, as a matter of ordinary language an application is not made in accordance with paragraph 1 unless it satisfies all three requirements of the paragraph. Moreover, there are two particular indications that an application is only made in accordance with paragraph 1 of Schedule 14 if it is made in accordance with all the requirements of the paragraph. First, paragraph 1 is headed 'Form of applications'. The word 'form' in the heading is clearly not a reference only to the prescribed form. It is a summary of the content of the whole paragraph. It is a reference to how an application should be made. It must be made in a certain form (or a form substantially to the like effect with such insertions or omissions as are necessary in any particular case). It must also be accompanied by certain documents. 47.Secondly, Schedule 7 to the 1993 Regulations shows that the prescribed form itself requires the route to be shown on the map 'accompanying this application' and the applicant to 'attach' copies of the following documentary evidence... This language reflects the content of subparagraphs (a) and (b) of paragraph 1."
He goes on to say howartificial it would be to approach the matter differently.[20]At paragraph 54 of the judgment, Dyson LJ says:
"In my judgement, section 67(6) requires that, for the purposes of section 67(3), the application must be made strictly in accordance with paragraph 1. That is not to say that there is no scope for the application of the principle that the law is not concerned with very small things (de minimis non curat lex). Indeed this principle is explicitly recognised in Regulation 8(1) of the 1993 Regulations. Thus minor departures from paragraph 1 will not invalidate an application..."
But he then goes on to show why those considerations were of no application in the matter before the court.[21]Paragraph 55 of the judgment, upon which Mr Coppel places some emphasis, reads as follows:
"I wish to emphasise that I am not saying that, in a case which does not turn on the application of section 67(6), it is not open to authorities in any particular case to decide to waive a failure to comply with paragraph 1(b) of Schedule 14 and proceed to make a determination under paragraph 3; or to treat a non-compliant application as the 'trigger' for a decision under section 53(2) to make such modifications to the DMS as appear requisite in consequence of any of the events specified in subsection (3)."
Emphasis is placed by Mr Coppel on the words "and proceed to make a determination" for a reason that I will come to shortly.[22]It is against that background that Mr Maroudas submits that the application for the order was not signed, it was not dated, it did not apply to the whole route and it was not accompanied by the map. It did not, therefore, comply with all, or even a material part, of the requirements of paragraph 1. The Inspector nevertheless concluded that, notwithstanding the defects in the application, a valid application had been submitted prior to the relevant date under the 2006 Act. He submits that, as Winchester shows, the Inspector was wrong in law in concluding that the defects in the application were so minor that they did not invalidate the application for the purposes of section 67 of the 2006 Act. There are three grounds put forward, but it is common ground that they all succeed or fail together.[23]Counsel for the respondent accepts that there are defects in the application and does not challenge the specifics identified by Mr Maroudas. What he says is that the application has to be seen for what, in his submission it is, that is to say the undated form, as expanded by the letter from Oxfordshire County Council of 25th March 1997, and by Mr Drinkwater's letter of 22nd April 1997. He says that the whole purpose of having a strict requirement for these forms is so that neither the public nor decision-takers should be in any doubt whatsoever about what the application was or what its basis was. He submits that the very strictness of the requirements is a reason why the local authority in this case did, and local authorities generally should, examine the application as submitted, consider its implications and check it, and then go back to the applicant, as they did in this case. The result of that exercise, he submits, is that when the matter came to be put out to consultation, and for decision, an accurate and complete application was in place, explicitly giving the whole road as being the subject of the application and bearing the signature of the applicant and the date when he wrote the further letter.[24]In my view the position is this: if the Inspector reached a decision that did not follow the guidance in Winchester, the fact that this is an application which is based only on judicial review-type considerations would make no difference. If the Inspector misapplied the guidance in Winchester, it would not be a matter of reviewing a discretion — the court would not hesitate to interfere. Next, it is plain, and not contested, that the application form itself was not effective, having no signature and no date. As regards the first application, it was an application for only part of the byway, in respect of which the later order was made, and there was at that point no map at all, although a map did become part of the process shortly afterwards.[25]I also accept, of course, the guidance given by the Court of Appeal, that the approach to these applications is one requiring strict compliance. I am also of the view that, to the extent to which the Inspector was saying that the application form itself, without a signature or a date, or [with] other particular defects, was a minor departure, excusable under the considerations set out in Winchester, she was mistaken. I accept the submission from Mr Maroudas that the absence of a signature in an official document is a matter of substance and not a minor departure. But, just as compliance has to be strict, one is entitled, it seems to me, to look at the substance of the matter, which is that by the time the letter of 22nd April 1997 was written it was perfectly clear what the application related to. There was a map, as one sees from "enclosed is a summary plan of the application" in the letter of 25th March 1997, and a signature and a date. No one would, or could, have been misled about what happened after that. Mr Maroudas rightly had to accept that he would have no grounds at all for his application if, instead of the exchange of letters, the Council had gone through the bureaucratic, or some would say necessary, step of returning the form to Mr Drinkwater to sign and amend, rather than resolving the matter on an exchange of correspondence. That seems to me to move proper strictness into unnecessary bureaucracy. In my judgement, the matter has to be looked at as a whole. When one does look at it as a whole, all the requirements of what should have been on the original form were met. For those reasons, while I have considerable sympathy for the position of Mr Maroudas and other people who are disappointed that mechanically propelled vehicles should be able to go down this stretch of territory, it seems to me that the Inspector was right, overall, in treating the documents and maps as a whole as being the application.[26]For those reasons, this application is refused.[27]MR COPPEL: I am grateful, my Lord. There should be with the court, or on the court file, a summary assessment form. If not, I can have one passed up. When that form was completed we anticipated it would last all day. Of course, it has not lasted all day. So an amount should be removed from the amount sought to reflect that. Does your Lordship have it?

JUDGE MACKIE:

[28]Before that, we have a litigant in person. Why should you have your costs on an Administrative Court matter of this kind?[29]MR COPPEL: Because, my Lord, whether a person is representing him or herself, or whether they are represented by others, ordinarily the principle is that the successful party is entitled to have its or his or her costs. We have been successful and the basis for our defence in this matter has always been known. It has incurred costs, so far as the public authority is concerned. The convention is, the orthodoxy is, that costs follow the event unless displaced.

JUDGE MACKIE:

[30]I ask you firstly because there is a litigant in person and, secondly, because, as you may know, I am permanently in this building, primarily as a commercial judge and rusty on costs in the Administrative Court.[31]MR COPPEL: Certainly if a person is under the benefit of a publicly funded certificate, the convention is to put in what is termed a "pools order". It is not to say that there should not be a costs award, but simply that there is no enforcement of it. But whether a person is represented or unrepresented of itself does not colour the exercise.

JUDGE MACKIE: That, I appreciate.

[33]MR COPPEL: The next question is whether there is a broader issue of public interest which is raised. Normally if a party seeks protection against an adverse costs order on that basis, then the application is made at the outset of the claim for that protection. The protection might take the form of no order for costs or a costs capping order.

JUDGE MACKIE:

[34]48.12(5). Can you take me to it? Is it 48.12?[35]MR COPPEL: For the costs cap?

JUDGE MACKIE: Costs in the Admin Court.

[37]MR COPPEL: My Lord, I do not have my White Book with me.

JUDGE MACKIE:

[38]Okay, take a seat and I will look it up instead. It says, "Administrative Court costs 48.12(5)". "No order for costs against inferior courts or tribunals". That does not apply. The usual provisions relating to applications for permission. It looks as though you are right.[39]MR COPPEL: 44 is the ordinary --

JUDGE MACKIE: I know, but I was trying to see whether there is some exception.

[41]The position is you have been unsuccessful in this application. The result is that they are applying for costs. Generally, the successful party gets a proportion of its costs paid by the unsuccessful party. I did not think there was any basis upon which you could be relieved of your costs. I have had a look and I have checked it. Except on some principle that I am completely unaware of, there does not seem to be any basis for you not to be liable for costs, but obviously you are entitled to say something about that, so please do.[42]THE CLAIMANT: I think I'd say two things, if I may, and I'm not sure if the second one is in the right place. Mr Coppel said in his submission on costs that the grounds for the defence were clear from the beginning. In fact, the grounds on which the defence relied, the grounds on which you decided the matter, were not revealed at all, either in his summary grounds or in his skeleton argument. I would like to take you, if I may, to the relevant point in the skeleton argument, because I think it deals with the matter really quite succinctly and conclusively. It is paragraph 41(2) of the skeleton argument. Mr Coppel's argument, and your judgment, was based on the fact that the application was signed.

JUDGE MACKIE: Yes.

[44]THE CLAIMANT: It was signed because the second letter from Mr Drinkwater constituted the signature. It's quite clear from 41(2) that in his skeleton argument, and indeed previously in the grounds, he didn't take that line. He took the line that the Inspector found as a fact that the application form was not signed and that the departures were minor. So this is an entirely new set of arguments, one that I couldn't possibly have foreseen, but I might have foreseen them, but I didn't foresee them, weren't revealed at any point in the arguments to date. I think that has two sets of bearings: one, had I been made aware of those, I might well have taken a different view as to whether to proceed or not (inaudible) to the costs; second, it goes to the issue of whether the costs were well spent or wasted. It does appear to me that the argument was one that developed, perhaps when he heard your Lordship's querying of the documents as I went through my submission. I think you drew my attention, and no doubt his attention, to the fact that there was a subsequent letter which had a signature and a date. If that's right, all the arguments that went before, and all the work that went before, were on matters which in fact would have been unsuccessful in this case — were essentially wasted work. That would be the first part of the submission.[45]The second relates to the amount of costs, and I don't know whether that's something that it's appropriate for me to talk about.

JUDGE MACKIE: Yes, we can come on to that.

[47]THE CLAIMANT: One is looking at -- and this was a small and contained point of law. Both parties accepted that. Mr Coppel's submission was eventually maybe 5-10 minutes. Mine was a bit longer. The costs submission suggests -- 6, 8, 10, 11 hours of solicitor time on this, as well as a brief -- a fee for advice of £1,750, and a fee for the hearing of £600 pounds. Mr Coppel suggested that the fee for the hearing might come down a bit. Fee for advice £1,750, I assume. Sorry, I am on page 2. £1,750. I'm not aware precisely of the charge-out rates of Treasury barristers, but I think it's about £120 or so an hour. That would suggest about 15 hours' work on advice on what is a small and distinct point of law and where, in fact, the arguments put forward are 5-minute -- ended up at 5 minutes and that that was an argument which simply wasn't engaged in the defence. So I would suggest that not only are costs inappropriate because the nature of the defence was not revealed in advance and (b) if a costs order is not inappropriate, then the costs order is, in any event, excessive and also the brief.

JUDGE MACKIE: Okay, thanks.

[49]MR COPPEL: Can I deal with the two points in order, namely the principle and then the amount we get there.

JUDGE MACKIE: He says you won on a point which you did not raise until 11.00 am.

[51]MR COPPEL: Yes, my Lord. That is what I call "the principle". On 12th August, when this matter was still taking the form of a JR claim form, so summary grounds were put in, I did say at paragraph 7(1) there:
"[Although] the Inspector found as a fact that, although the application had not been complete when first submitted, as at 20th January 2005 the application was complete..."
Then I make the point in subparagraph (4) that it was open to the Inspector to conclude that at the moment it was complete, it did comply with the requirements of the form. It is a slight oddity here, because, because it was commenced by the means of judicial review, Mr Maroudas had the benefit of the summary grounds for contesting the claim. Normally, with a paragraph 12 appeal, a claimant — it is an oddity, I will interpose — does not hear what the Secretary of State's defence is until they receive the skeleton argument. So in a sense Mr Maroudas had a benefit here, insofar as the rudiments of the Secretary of State's case were made right at the outset, because it was being treated as if it were a judicial review application, rather than a statutory appeal. But the point is made there, the self-same point which has been made today. Of course, one does not simply read out one's skeleton argument, or one should not at any rate, when one makes submissions to the court, but particularly alights upon the matters of focus that are of interest to the court, as expressed by the bench.

JUDGE MACKIE:

[52]I am sorry to interrupt you. It is going to be sensible for us to sit on for a bit and resolve matters, rather than come back at 2.00 pm. So we are going to break briefly so I can ask my clerk to tell another judge that I am going to be late. Then I will come back and we can finish. (A short adjournment)[53]MR COPPEL: The second point, my Lord, is there is no suggestion by Mr Maroudas, if it had not been clear to him before this morning, when I made the point in oral submission -- it was not a case of Mr Maroudas saying, "If that be the case, then in fact, if I had known that -- I will not persist with this application". He persisted, notwithstanding he is quite right to do so — that is his entitlement — but to the extent that it was not expressed in exactly the same way as it was this morning, it is tolerably clear that it would not have made any difference.[54]My Lord, I indicated, in terms of the amount, that something should come off, because instead of taking the 6 hours, it has taken, say, 3 hours. Your Lordship sees on the first page it is 6 hours at £90. It should be 3 hours. I, too, my Lord, because it is Government work, do not have a regular brief, but have an hourly brief. That should come down from £600 to £300, but apart from that we adhere to the amount sought.[55]Can I also indicate this, that one of the reasons one has attendances on others and advices and so on and so forth is that when the matter comes to those instructing me, it is of course incumbent upon them to make sure that the matter worth defending, and that involves them looking over the documents afresh, they not having been involved in the hearing before the Inspector at all, they coming to it as novices, is as it were, freshly. So it does take a little bit longer than for a party that was before the Inspector itself, who was of course familiar with the whole matter. That is why sometimes in these matters, and planning matters and other statutory appeals, one sees a little bit longer spent on coming up to speed with the matter than one otherwise would have expected. So for those reasons I ask(a) for an order for costs and(b) that it be summarily assessed. I calculate the amount to be £4,961.50, lopping off 3 hours of my time and lopping off 3 hours of time for my instructing solicitor.[56]THE CLAIMANT: One small issue of fact, if I may. Mr Coppel refers to the grounds. The grounds in this case were in exactly the same form as the skeleton argument I described earlier. He glossed over the fact that in paragraph 7(2) he included exactly the same provision. I will read it:
"The Inspector performed an evaluativeassessment of the document, finding as a fact that although the application form was not signed, it was in the prescribed form or to like effect in that any departures were minor."
Again, a wholly different ground for the defence.

JUDGE MACKIE: Thank you very much.

[58]There is an application for costs. I have made no secret of the fact that I was going to be alert to features that would modify, to some extent, the burden of costs falling upon Mr Maroudas.[59]Mr Coppel is correct that the point on which he succeeds has been a live one, because, if not explicit, it is pretty clear from the Inspector's decision that she looked at the matter beyond just looking at the form. So there is no reason, in principle, why the respondent should not pay the costs.[60]Against that, it seems to me that the level of costs should be reduced, not because there is anything wrong with the time that was spent, and certainly not that there is anything wrong with the rates, but there are two features. One is that the matter did take a very short time. This is, of course, the wisdom of hindsight, but here I am concerned with what it is fair for the losing party to have to pay, not what it is reasonable for the successful party to run up. It seems to me that this case could have been dealt with more briefly, and I did, to some extent, accept one of the submissions made by Mr Maroudas that the Inspector was arguably in error in her approach to the form itself. In all the circumstances of the case, what I am going to do, in order to save time and assessment costs, because usually with a litigant in person I would let the litigant in person insist on the matter going to assessment if he or she wished, what I am going to do is take the figure of £5,531. Looking at the matter in the round, I am going to award costs of £3,000, payable in the normal way within 14 days, subject to one point: Mr Maroudas, you do not know about rates, do you? Presumably you are not a lawyer, or are you? You sound like one.[61]THE CLAIMANT: A long, long time ago I was one. Not for many years.

JUDGE MACKIE:

[62]You sound like one in the best sense. £3,000 in 14 days. If you should take outside advice and consider that the rates are too high because you do not have advice on that sort of matter at the moment, you can apply to the court within 14 days, but I advise you to take it from me that these rates are not out of line, and they are a good deal lower thanmost.[63]You are a litigant in person. The next thing that arises is for me to inform you of your rights of appeal. You have no right of appeal, as such, without permission. You have to get that permission in one of two ways. You can apply to me for permission to appeal. If I refuse it, you can then apply to a Lord or Lady Justice for permission to appeal. In order to shorten the route to some extent, and not in any way to display discourtesy to you, what I am going to do is take it that you have applied to me for permission to appeal. I am going to refuse you permission to appeal, because in my judgment there is no reasonable prospect of success for you in the higher court. I do that simply so that if you wish to appeal, you can go straight to a Lord or Lady Justice and you do not have to come back to me.[64]Unless anything else arises, I thank you all again very much for your help.

Cited in 1 later judgment