Derbyshire County Council v High Peak Magistrates' Court [2013] EWHC 1762 (Admin)

Case No CO/11044/2012[2013] EWHC 1762 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre
33 Bull Street
Venue Birmingham B4 6DSDate 27/06/2013
Before
MR JUSTICE KENNETH PARKER
Between
DERBYSHIRE COUNTY COUNCILClaimantHIGH PEAK MAGISTRATES' COURTDefendantMS KATE MARLOWInterested Party
Paul Stinchcombe QC (instructed by Derbyshire County Council) for ClaimantDavid Lock QC and Philip Williams (instructed by Nigel Davis Solicitors) for Interested PartyHearing Hearing dates: 22 May 2013
JudgmentMr Justice Kenneth Parker :Introduction
[1]This is an application for judicial review of the judgment on costs of District Judge Davison, sitting in the High Peak Magistrates’ Court (“the Defendant”), by which, consequent to the application by Ms Marlow (“the Interested Party”) for an Order under section 130B of the Highways Act 1980 that the Council remove an obstruction to New Mills Footpath No. 84, he ordered the Council to pay the Interested Party’s costs of the application.

Statutory Framework

[2]I set out the statutory framework in an Annex to this judgment.

The Factual Background

[3]New Mills Public Footpath 84 descends a steep hillside, passing Noonsun Farm and Noonsun Cottages,one of which is owned and occupied by Ms Marlow (2 Noonsun Cottages).The public have the right to pass over Footpath No. 84 on foot. There are also private vehicular rights over the footpath for the benefit of certain properties, including that owned by Ms Marlow. The Council’s duties in relation to the removal of obstructions relate to the protection of public rights of way on foot. There was evidence before the District Judge that the relevant obstruction did cause significant prejudice to the public, and that at least one member of the public had complained.[4]In about 2002 the then owner of Noonsun Farm carried out re-development works to his property, improving his own vehicular access but affecting Footpath No. 84 by: i) Raising land levels in the area by depositing materials on the footpath and significantly re-grading it; ii) Installing a flight of steps with hand railings in the footpath; iii) Installing a retaining wall; iv) Erecting a field gate and post at the top of the flight of steps to provide access to an adjacent field.[5]Ms Marlow purchased her property in 2005 and first complained to the Council about the obstruction in 2007. The Council sought to advance proposals for further works to remedy the effects of the alterations.[6]These endeavours were not successful and on 29 October 2007 Ms Marlow was compelled to serve a first notice on the Council under section 130A of the 1980 Act. Initially, the Council did take action in favour of Ms Marlow by serving a notice on the persons responsible for the obstruction, under section 130A(6). However, having served the notice, and having taken that position in unequivocal terms, the Council then changed its position. The Council contended that the works had not “significantly” interfered with the exercise of public rights of way by foot over the footpath, as required by section 130B(4)(c) of the 1980 Act. The application was at that point, therefore, withdrawn by Ms Marlow on a basis that at the end of the day was not to be pursued by the Council in circumstances that will be described shortly.[7]In 2010 in Herrick v. Kidner and Somerset County Council [2010] EWHC 269 (Admin) (“Herrick”), Cranston J. decided that the requirement, undersection 130B(4)(c) of the 1980 Act, that works must “significantly” interfere with the exercise of public rights of way meant that such works should not interfere with the right of a member of the public to have unrestricted access to the whole, or any part of, the highway.[8]Ms Marlow drewHerrick to the Council’s attention and the Council’s Acting County Secretary responded to Ms Marlow on 14 May 2010 in the following terms: “It is clear that the works which were carried out in 2001 in this footpath without any highway authority authorisation, involved a hand gate and fencing across the footpath which introduced an obstruction which physically narrowed the footpath available for public use. My current understanding is that the gate itself was removed some time ago but that a physical narrowing to some extent caused by the surrounding structure currently persists. The general position in the light of the Somerset case is that any unauthorised works on the footpath which narrow the width available for the public to use (except by a trivial amount under the de minimis exception) are unlawful obstructions which should be subject to effective action by the Council as highway authority to restore the width available for use. ” (My emphasis)[9]The Council undertook investigations, the outcome of which was communicated to Ms Marlow in a further letter from the Acting County Secretary, dated 29 October 2010, which stated as follows: “The Council has this week received advice from Counsel concerning the alterations to this footpath which were caused by the works which were carried out in 2001. Taking into account the advice, the Council continues to regard the alterations as having caused an unlawful obstruction to the footpath.” (My emphasis) I note that the Council had specifically taken advice from Counsel on its legal obligations. If that advice was thought to have more general and important potential consequences for the Council, it could of course have sought further advice, in particular, about the meaning of “obstruction” and whether the conclusions of Cranston J could realistically be challenged in another case. The Council did not take any such precautionary steps.[10]The letter of 29 October 2010 then set out the Council’s proposal for a period of consultation, after which, it was stated that: “… if the Director of Environmental Services is not satisfied that full accessibility for footpath users had been restored or that this would not be accomplished under a suitable scheme within a reasonable time, then he would serve a statutory Highways Act Notice on the landowners to require substantial removal of the highway obstruction.” (My emphasis)[11]Ms Marlow served a second section 130A notice on the Council on 1 November 2010.In response the Council itself served notices on Mr and Mrs Broughton-Law (the landowners) and Ms Marlow on 3 December 2010, containing the following “description of obstruction”:
“… an unauthorised restriction (via a set of unauthorised concrete steps approximately 1 metre wide) in the right to pass and re-pass over the footpath at its western side. It results from the situation of the steps in combination with (1) a deposit of material which has raised the surface level causing a very steep gradient over the footpath in the vicinity of the steps; (2) a stone retaining wall across the footpath to the east of the bottom of the steps; and (3) a gatepost supporting a bar gate at the eastern side of the top of the steps.”
[12]The notice set out what, if any, action the authority proposed to take in relation to the obstruction in accordance with section 130A(6). The Form said:
“This authority proposes to take the following action in relation to the obstruction: • To refrain from taking formal enforcement action through its Director of Environmental Services until after Monday 31st of January 2011, to encourage a suitable scheme for restoration of accessibility for users of Footpath 84 to be put forward by then. • If a suitable scheme for restoration of accessibility for users of Footpath 84 is put forward by 31st of January 2011, to state reasonable time limit for the carrying out of the scheme. • If a suitable scheme for restoration of accessibility for users of Footpath 84 is not put forward by 31st of January 2011, and it is not then apparent that such restoration is not otherwise about to be achieved, to take formal enforcement action after that date in order to achieve the removal of the obstruction” • To refrain from taking formal enforcement action through its Director of Environmental Services until after Monday 31st of January 2011, to encourage a suitable scheme for restoration of accessibility for users of Footpath 84 to be put forward by then. • If a suitable scheme for restoration of accessibility for users of Footpath 84 is put forward by 31st of January 2011, to state reasonable time limit for the carrying out of the scheme. • If a suitable scheme for restoration of accessibility for users of Footpath 84 is not put forward by 31st of January 2011, and it is not then apparent that such restoration is not otherwise about to be achieved, to take formal enforcement action after that date in order to achieve the removal of the obstruction”
[13]Thus the Council’s Notice at that stage formally committed the Council to taking enforcement action against the landowners over whose land Footpath 84 ran if a suitable scheme for restoration of accessibility was not put forward by 31st January 2011. A notice was also served on Ms Marlow explaining that this was the course that the Council proposed to follow.[14]Again it was open to the Council at that stage to take advice on “obstruction”, “significance” and any other relevant legal matter. However, the Council proceeded on the unequivocal basis that there was an unlawful obstruction.[15]The period stipulated in paragraph 12 above was extended on the Council’s initiative to 30 March 2011, pending a response from High Peak Borough Council’s Planning Department on the acceptability of an alternative suitable scheme.[16]However, the revised 30 March 2011 deadline passed with no scheme of works emerging from the landowner. In the evidence before the District Judge, and before this Court, there is then simply a deafening and quite astonishing silence about what happened within the Council between 30 March 2011, when, it is necessary to recall, the Council was adopting the unequivocal position, following Counsel’s advice, that there was an unlawful obstruction that needed to be removed, and 29 June 2011. On the evidence – or lack of it – nothing in any event was said to Ms Marlow between these dates to indicate that the Council – once again – was changing its position. It appears that Council had gone to new Counsel, Ms Ruth Stockley, who, differing from the earlier advice, had advised the Council that there were good grounds for resisting Ms Marlow’s application. There was a preliminary hearing fixed for 29 June 2011 before the District Judge in respect of Ms Marlow’s still pending application. Ms Stockley appeared before the District Judge on behalf of the Council at that hearing on 29 June 2011, and, minutes before the hearing began, Ms Stockley told Ms Marlow that the Council had shifted from the unequivocal position it had adopted in March 2011, and would now be resisting Ms Marlow’s application. Ms Marlow was not legally represented, understandably not having any reason to anticipate the Council’s (further) change of position.[17]Ms Stockley had also advised the Council that it should apply to strike out Ms Marlow’s application, and that application to strike out was made. This strike out application was misconceived, as the District Judge correctly found, but he did decide two points of law at the next hearing which in fact took place only much later on 8 May 2012. The points of law were: i) The alleged obstruction was not an obstruction to which section 130A applied because the works did not constitute a “structure” for the purposes of section 143 of the Highways Act 1980; and ii) The alleged obstruction was not an obstruction to which section 130A applied because the works did not comprise a “thing deposited on the highway” for the purposes of section 149 of the Highways Act 1980.[18]The District Judge in a judgment of 8 May 2012 found against the Council on both points. I have considered that judgment, and I must say, to put the matter at the lowest, that the Council’s case was less than impressive and was rightly rejected by the District Judge.[19]The Council was ordered to pay Ms Marlow’s costs. The Council did not seek to appeal the decisions as to substance or costs. However, the taking of these new preliminary points had thrown up a further unmeritorious obstacle to Ms Marlow’s endeavours to obtain a satisfactory remedy.[20]For the purposes of the above preliminary hearing, Ms Stockley had produced a Skeleton Argument on behalf of the Councilwhich flagged what would now be put forward in the Council’s defence (if it lost, as it did, on the two preliminary points above), namely: i) Notwithstanding Herrick, the alleged obstructions did not “significantly” interfere with public rights of way, as required by section 130B(4)(c) of the 1980 Act; and ii) The Court in any event should not in its discretion grant any relief to Ms Marlow, even if her application was successful.[21]It is necessary to bear in mind that that was the position adopted by the Council on 8 May 2012. Even though she had succeeded on the two “preliminary points”, Ms Marlow plainly had to prepare herself for the final hearing which was fixed for 3 days beginning 16 July 2012 on the basis that the Council would be vigorously resisting her application on the two grounds referred to above. At that juncture she had no reason to believe, particularly given the history of the contest, that the Council would retreat from its announced stand, and she, as a private individual, remained exposed to the uncertainty and anxiety of this continuing litigation against a public authority. Furthermore, it should be noted that the Council’s primary ground of resistance referred to above was predicated upon the proposition that the conclusion of Cranston J in Herrick was wrong and, even if it was followed by the District Judge (as was almost inevitable), there was presumably a good chance of success in the Court of Appeal. Indeed, that proposition had been the reason for the Council’s volte face on 29 June 2011 (see paragraph 16 above). But on 14 March 2012, nearly two months before 8 May 2012, the Divisional Court had specifically endorsed the conclusion of Cranston J in Herrick. In Kind v Northumberland County Council [2012] EWHC 603 (Admin), Moore-Bick LJ, with whom King J agreed, stated:
“14. The nature of a highway and of the public’s right to the use and enjoyment of it were considered in some detail by Cranston J. in Herrick v Kidner [2010] EWHC 269 (Admin), [2010] 3 All E.R. 771. Having considered a number of authorities, including Director of Public Prosecutions v Jones [1999] 2 A.C. 240 and Hampshire County Council v Gillingham (unreported, 5April 2000), he summarised the principles to be derived from them in paragraph 33 of his judgment as follows: “. . . first, members of the public are in general entitled to unrestricted access to the whole and each part of a highway; secondly, their right to such access is principally to pass and repass but it is also to enjoy other amenity rights; thirdly , those other amenity rights must be reasonable and usual and will depend on the particular circumstances; fourthly, any encroachment upon the highway which prevents members of the public from the enjoyment of these access and amenity rights is an unlawful obstruction; fifthly, the law ignores de minimis, or fractional obstructions; and sixthly, a highway authority cannot deprive itself of the power to act against an unlawful obstruction by refraining from exercising its statutory powers against it, or by purporting to give it consent.” 15. In the present case the Council did not seek to persuade the court that that summary of the relevant principles was incorrect and in any event I respectfully agree with it. The very nature of a public highway is such that the right to use and enjoy it extends to the whole of its width at every point along it. Accordingly, anything that interferes with that right to more than a minimal extent constitutes an obstruction which the highway authority may be called upon to have removed. In section 130 of the Act and elsewhere a distinction is drawn between “stopping up” and “obstructing” the highway, the former being used to describe steps taken to close off the whole width of the highway so as to render passage impossible.” (My emphasis) “. . . first, members of the public are in general entitled to unrestricted access to the whole and each part of a highway; secondly, their right to such access is principally to pass and repass but it is also to enjoy other amenity rights; thirdly , those other amenity rights must be reasonable and usual and will depend on the particular circumstances; fourthly, any encroachment upon the highway which prevents members of the public from the enjoyment of these access and amenity rights is an unlawful obstruction; fifthly, the law ignores de minimis, or fractional obstructions; and sixthly, a highway authority cannot deprive itself of the power to act against an unlawful obstruction by refraining from exercising its statutory powers against it, or by purporting to give it consent.”
[22]Ms Stockley appeared for Northumberland County Council in Kind and was obviously aware of the decision of the Divisional Court. It is rather difficult in these circumstances to understand how the Council was, on 8 May 2012, continuing to resist Ms Marlow’s application, and going forward to a final hearing two months later in July 2012, on the primary footing that Herrick was incorrect, unless, of course, the Council had received firm and cogent advice (presumably from Ms Stockley) that there was a realistic prospect of persuading the Court of Appeal that both the High Court and the Divisional Court were wrong on this point. I have not seen any such advice, nor did the District Judge.[23]Following the preliminary hearing, the parties sought to negotiate a settlement of the main application. Pending final agreement of that Consent Order, however, the two submissions raised by Ms Stockley in her Skeleton on behalf of the Council remained in issue. These were elaborated upon in a “Revised Skeleton On Behalf of Derbyshire County Council Including as to Costs”, prepared in advance of any order finally being agreed, and in case such agreement was not reached.[24]As part of the negotiations a site meeting took place on 18 June 2012. Highway design engineers from the Council, the landowners and the owners of 3 Noonsun Cottages as well as the parties and their legal representatives attended. At the meeting, and not long after it began, an officer of the Council told Jacqueline Mann, the solicitor acting on behalf of Ms Marlow, that the Council was planning to do works to FP84 to “put it back to how it was”, in other words, the Council was intending to concede Ms Marlow’s application in full. However, in a witness statement in the proceedings, Ms Mann observed that the Council’s failures to communicate its position (which itself involved a further volte face) before the site meeting meant that resources had been unnecessarily expended in preparing for the meeting, liaising with independent highway design engineers, and so on.[25]The dispute was resolved by an agreed order dated Friday 13 July 2012, the last working day before the case was due to come to trial on 16 July 2012. In the course of the negotiations on the Consent Order, and by an open letter dated 21 June 2012 from the Council’s Assistant Director, the Council accepted liability for Ms Marlow’s costs and proposed that the following wording be included in a Consent[26]The letter of 21 June 2012 was written by a legal officer of the Council, an experienced solicitor, who might reasonably have been expected to know what was the legal position in respect of costs. In any event before writing to agree to pay Ms Marlow’s costs, the Council, if in doubt, could have sought external legal advice as to its liability to costs if it continued to resist Ms Marlow’s application and failed. It appears that in fact Ms Stockley had been asked about that question, but said that she did not have the expertise to answer. The Council, it appears, did not then pursue the question further with external counsel before writing in the terms that it did, namely unequivocally to agree to pay Ms Marlow’s costs. It seems to me that Ms Marlow was entitled to assume that the Council’s offer to pay her reasonable costs had been based on an informed and correct understanding of what the Council’s liability would be if it resisted and failed.[27]However after making the offers, it appears that the Council then took further advice that led it on 5 July 2012 to write to Ms Marlow’s solicitor saying that it no longer agreed to pay any of Ms Marlow’s costs. This was a further change of position by the Council. Hence the necessity arose for the one day hearing before the District Judge to establish the Council’s legal liability to pay costs.

The Jurisdiction of the Magistrates’ Court as to Costs

[28]Section 64 of the Magistrates Court Act 1980 provides: “On the hearing of a complaint, a magistrates' court shall have power in its discretion to make such order as to costs –(a) on making the order for which the complaint is made, to be paid by the defendant to the complainant;(b) on dismissing the complaint, to be paid by the complainant to the defendant, as it thinks just and reasonable; but if the complaint is for an order for the variation of an order for the periodic payment of money, or for the enforcement of such an order, the court may, whatever adjudication it makes, order either party to pay the whole or any part of the other's costs.” (a) on making the order for which the complaint is made, to be paid by the defendant to the complainant; (b) on dismissing the complaint, to be paid by the complainant to the defendant,

The Principles as to Costs

[29]In this claim there was considerable debate between the parties as to whether the normal costs rule (“the loser pays”) applied to Ms Marlow’s application or whether the Council benefited from the more favourable approach to costs discernible in what was described as “regulatory” cases. I proceed on the assumption that the approach in the “regulatory” cases applies. It is not necessary for me to decide this question. My principal concern about the application of the more favourable approach would be that in the present context the member of the public is seeking to vindicate a public right (even if, contingently, he or she, as in this case, might derive significant advantage from a successful claim); and a cost approach that significantly tilted the balance in favour of a public authority might deter the bringing of justified proceedings brought in the public interest to vindicate a public right. Part of the rationale for the approach in regulatory cases is to create incentives that promote the public interest.[30]In any event the parties were largely agreed that, if the approach in regulatory cases was followed, the following principles applied: i) The usual rule in civil litigation that costs in principle should follow the event does not apply: see R(Cambridge City Council) v. Alex Nesting Limited (supra, at paragraph 12); and R(Perinpanathan) v. City of Westminster Magistrates Court (supra, at paragraph 41). ii) Financial prejudice (to the successful party) does not as such lead to an Order. However, substantial hardship to such party may be taken into account: see R(Cambridge City Council) v. Alex Nesting Limited (supra, at paragraph 12); and R(Perinpanathan) v. City of Westminster Magistrates Court (supra, at paragraph 41). iii) “As a matter of strict law” the power to award costs is not confined to cases where the regulatory authority acts unreasonably and in bad faith, the fact that the regulatory authority acts reasonably and in good faith is plainly a most important factor: see R(Cambridge City Council) v. Alex Nesting Limited (supra, at paragraph 11). iv) The above applies to situations where a regulatory authority opposes relief just as it does to a regulatory authority pursuing a claim; in both cases, there is no presumption that the regulatory body pay the other party's costs: see R(Perinpanathan) v. City of Westminster Magistrates Court (supra, at paragraph 76). v) In assessing whether a regulatory body has acted reasonably, it would be wrong to invoke the wisdom of hindsight or to set too exacting a standard: see R(Perinpanathan) v. City of Westminster Magistrates Court (supra, at paragraph 77).

The Function of this Court

[31]In Crawley Borough Council v Stuart Attenborough, Angela Attenborough [2006] EWHC 1278 (Admin) Scott Baker LJ said:
“9. The magistrates gave the following reason for their decision: “We were entitled to make an order as to costs in accordance with our discretion as we had considered all the circumstances concerning the facts and the history of the case and awarded costs against Crawley Borough Council as were just and reasonable given the variation made.”
And a little earlier in the main paragraph of the case, setting out the basis for their decision, they said:
“There is no real problem relating to noise nuisance from the interior of the Royal Oak Public House having heard the evidence of Mr Petrou and Mr Burns and visiting the premises itself.” 10. We have been referred also to my decision in the R v Stafford Crown Court ex parte Wilf Gilbert (Staffs) Ltd [2001] LLR 138, in which I made reference to the general rule that there is no obligation to give reasons for a decision on costs, citing Eagil Trust Co v Pigott-Brown [1985] 3 All ER 119 and, in particular, a passage from Griffiths LJ's judgment at 122A. It seems to me very doubtful whether that decision has survived the new Criminal Procedure Rules which have loosened the opportunity to appeal on costs decisions. 11. Be that as it may, the justices did give reasons for their decision in the present case, the reasons to which I have referred. For my part I think, first of all, there is no obligation on justices in cases of this kind to go in detail into the reasons for their decision, and it is sufficient that they have made it clear that they appreciated the principle under which they were operating. Secondly, I make the general observation that it seems to me highly undesirable that the courts should do anything to encourage satellite litigation on questions such as costs. 12. It is plain from section 181 and also, so far as material, section 64(1) of the Magistrates' Courts Act 1980 that in a case of this kind the justices have a very wide discretion in what costs order they see fit to make. They will, after all, have heard the appeal, which in this case took something in the region of two days. 13. Mr Miller submits that they went wrong because they ordered the local authority to pay all of the appellant's costs without making a finding that the local authority had behaved unreasonably. In my judgment, he is seeking to import into the magistrates' discretion something that the statute does not specifically say…” (Emphasis added)
“We were entitled to make an order as to costs in accordance with our discretion as we had considered all the circumstances concerning the facts and the history of the case and awarded costs against Crawley Borough Council as were just and reasonable given the variation made.” “There is no real problem relating to noise nuisance from the interior of the Royal Oak Public House having heard the evidence of Mr Petrou and Mr Burns and visiting the premises itself.”[32]Furthermore, the Court of Appeal has repeatedly emphasised the width of the discretion exercised by Judges in relation to costs and the reluctance of the appeal court to interfere with the exercise of that discretion. The principles to be applied by the Court of Appeal in dealing with appeals solely on matters of costs were set out in Adamson v Halifax Plc [2003] 1 WLR 60. Sir Murray Stuart Smith said at paragraph 16:
“Costs are in the discretion of the trial judge and this court will only interfere with the exercise of that discretion on well-defined principles. As I said in Roache v News Group Newspapers Ltd [1998] EMLR, 161, 172: “Before the court can interfere it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.”
That statement was approved in AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507, 1523, per Lord Woolf MR. Although that decision was before the CPR came into force, it is clear that the court applied the same principle in relation to interfering with the trial judge's discretion” “Before the court can interfere it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.”[33]In Islam v Ali [2003] EWCA Civ 612 Auld LJ said at paragraphs19 and 20:
“19. It is, as both counsel have acknowledged, a wide discretion, and the Court of Appeal should only interfere with the judge's exercise of it if he has “exceeded the generous ambit within which reasonable disagreement is possible”, a familiar passage taken now from the judgment of Brooke LJ in Tanfern v Cameron McDonald (Practice Note), 1 WLR 13 , 11, at paragraph 32, citing Lord Fraser in G v G (Minors) CA [1985] 1 WLR 647 , 652. 20. Another way of putting it, with a more direct focus on costs, is that the Court should only intervene where “… the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that [the exercise of] his discretion is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.” “… the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that [the exercise of] his discretion is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.”
[34]Accordingly, even if the reviewing court has concerns about the procedure adopted by the Judge or considers that there are aspects of the decision about which the reviewing court has reservations, this will not result in the reviewing court interfering with the costs order unless these reservations “undermin[e] .. the integrity of his decision”: see Martin Coyne v DRC Distribution Limited [2008] EWCA Civ 488 at paragraph72.

The Judgment of the District Judge

[35]The District Judge held that this was a “regulatory” civil case to which the principles referred to above applied. He then took into account “the conduct of this case as a whole, both pre-litigation, and up until the close of business on Friday last, 13 July 2012, the date that the Consent Order was finally agreed and signed by both parties”.

The judge then found:

“I am satisfied that the documentary evidence I have considered throughout this case, particularly the statements of Ms Marlow and her solicitor, Ms Mann, together with the plethora of correspondence which has passed between the Applicant, her legal adviser and the Respondents, in so far as it relates to the conduct, care and control, decision making or on a number of occasions the lack of decision making, and misleading statements in written communications – enables me to conclude with some ease, that the Respondents have undoubtedly acted unreasonably in the exercise of their statutory administrative duties. I do not find that the Respondents have acted dishonestly or in bad faith, but that they have acted unreasonably, causing unnecessary delay and significant additional costs, consistently throughout the life of this case. Furthermore, the financial prejudice to Ms Marlow of this Court making no order for costs in her favour would be significant and in my view unconscionable in all the circumstances. Ms Marlow has persevered and stood out as a beacon of commitment and reasonableness to her cause, identified in her application, and in my view she must be reasonably compensated for the costs she has necessarily and properly incurred in successfully bringing these proceedings against what I regret to say has been an intransigent and misleading public authority. In my judgment this matter could, and should quite properly have been settled months, if not years ago, at relatively modest cost to the Respondents, and it is not now incumbent on them, or in any way reasonable for them, to seek to avoid their just and reasonable responsibilities to Ms Marlow in terms of costs. In so far as the third of the Bradford case propositions is concerned, in relation to encouraging public authorities to make and stand by honest, reasonable and apparently sound administrative decisions, made in the public interest, without fear of exposure to undue financial prejudice if their decision is successfully challenged – what we have in this case is a public authority which has dragged its feet for a considerable period of time, and altered its position in important matters of principle, at times, supporting and indeed virtually encouraging Ms Marlow in her pursuit of seeking the removal of the unlawful obstructions, only to alter their position, contest this matter and then just days before a three day scheduled contested hearing sign a Consent Order in effect agreeing to all that the applicant has sought from day one. Similarly, the Respondents have changed their stance in relation to this very issue of the Applicant’s costs, just a matter of a few days ago, despite high level internal legal advice from its own legal officers clearly set out in recent correspondence from Ms Kay Riley, an officer of the Respondents dated 21 June 2012 contained in the evidential bundle prepared for today’s hearing, which expressly stated as part of the draft Consent Order that: “the Respondent’s do pay the Applicant’s reasonable and proportionate costs of this action on a standard basis, or failing agreement to be subject to detailed assessment proceedings”
Nevertheless by letter of 5th July 2012 the Respondents had once again totally altered their stance in relation to the principle of meeting the Applicant’s reasonable costs, and stated:
“… we are therefore writing to inform you that the Council will not agree to meet any of your costs”
. In my judgment this is a case where the Derbyshire County Council have at all material times had it within their own power to remedy the unlawful obstruction(s), subject of this application by Ms Marlow – yet they have manifestly failed to act reasonably and proportionately, and having regard to all the circumstances of this long running case, this is a matter which is eminently suitable for a positive exercise of my discretion to award costs to Ms Marlow, payable by the Respondents, which are just and reasonable, and not punitive, in accordance with the statutory power set out in Section 64 of the Magistrates’ Courts Act 1980.” “the Respondent’s do pay the Applicant’s reasonable and proportionate costs of this action on a standard basis, or failing agreement to be subject to detailed assessment proceedings” “… we are therefore writing to inform you that the Council will not agree to meet any of your costs”.

The Claimant’s Case

[37]I may summarise the Council’s case as follows.[38]The Council’s case was that it had, in good conscience and in good faith, acted entirely reasonably in dealing with a situation which had been foist upon it and of which it was not the author, such that, in proper application of the principles established in the above authorities, the Council should not be ordered to pay the Interested Party’s costs.[39]In particular, and covering the entire period from the first complaint received by the Council to the hearing on 17 July 2012: i) The works to Footpath No. 84 were carried out by a third party, the former owner of Noonsun Farm, without any prior communication with or approval from the Council. ii) When, in 2002, the Council was consulted by the local planning authority on the retrospective planning application in 2002, the Council recommended that an advisory note be included in any Decision Notice to draw attention to the need to have regard to existing public rights of way on foot along the footpath. iii) When, in 2007, the Interested Party first raised the issue of the works with the Council, the Council sought to advance proposals, during 2007, for further works to overcome the effects of the alterations. iv) When the Interested Party first served notice on the Council under section 130A of the Highways Act in 2007, she withdrew proceedings. v) When the Council was served with the second notice under section 130A, following the judgment in Herrick, the Council signalled its intention to refrain from taking formal action pending endeavours to encourage a suitable scheme to come forward by 31 January 2011, extended to 31 March 2011. This was entirely reasonable and in good faith given the following: a) The footpath, as altered, was entirely usable and safe for passage on foot. b) The remedial works required by Ms Marlow would be on the private land of the current owners of Noonsun Farm who were not responsible for the works. c) The works would require the removal of the improved access to that property, engaging Article 1 of the First Protocol of the ECHR and the right of the occupiers to the enjoyment of their property. vi) Thereafter, and from 29 June 2011, and when the Council raised the question as to whether section 130A was properly engaged, given sections 143 and 149 of the same Act, it was acting entirely reasonably and in good faith as demonstrated by the following: a) They were issues of importance, never previously considered, the determination of which were of public importance and have wide-ranging consequences in the County and beyond. b) That they were reasonably arguable is properly reflected in fact that the District Judge ordered an uplift of 100% on the Interested Party’s costs of that hearing. c) The points were heard as a preliminary point of law precisely because of their potential to save costs at a subsequent substantive hearing. Having lost on those preliminary points on 8 May 2012, the Council continued to act entirely reasonably and in good faith in seeking to agree a Consent Order, whilst reserving its right to make its two remaining submissions should those endeavours fail.[40]The District Judge had, similarly, to address the following matters as to financial prejudice, noting, perLord Bingham’s entreaty in City of Bradford Metropolitan County Council v. Booth (supra), the need to protect public authorities from “exposure to undue financial prejudice”: i) The Interested Party’s Schedule of Costs in the sum of nearly £200,000 was incurred in a Magistrates’ Court case, scheduled to last just 3 days at the most, in which the Interested Party was only able to assert her right to use Footpath No. 84 on foot, and when perfectly reasonable footpath access was available at all times. ii) The costs which Ms Marlow incurred were exacerbated by an uplift of 100 per cent pursuant to a CFA into which Ms Marlow had voluntarily entered into, when she knew, or ought to have been advised, that, pursuant to the authorities set out above, she was always at risk of non-recovery even if successful. iii) Ms Marlow had elected to pursue the Council in respect of its exercise of regulatory powers when, at all times, legal redress was available in respect of her private rights (including vehicular access) in private litigation and in which the ordinary rule that costs follows the event would have applied. iv) Finally, to order the Council to pay Ms Marlow’s costs would: a) Have a chilling effect on any highway authority reasonably seeking to exercise its regulatory powers over highways by promoting an alternative to removal of the obstructions where that alternative might be in the public interest; and b) Have a chilling effect, also, on the willingness of any highway authority legitimately, and reasonably, to raise important points of law in opposing the relief sought by an Interested Party under section 130B of the 1980 Act.

Decision

[41]The rather lengthy recitation of the facts in this somewhat extraordinary case enables me to state my decision relatively briefly. I start from the premise that Ms Marlow eventually succeeded in her application, after a very lengthy, hard fought and at times frustrating contest with the Council. As the District Judge observed, this relatively small scale dispute could have been resolved at an early stage, allowing both substantial private and public resources to be more productively expended, and saving very considerable private and public costs. In those circumstances, in my view, the Council would need to make out a strong case indeed why it should not, as a matter of public policy, pay the costs of a private litigant, asserting a public right, who for reasons of justice would ordinarily be awarded her costs.[42]Far from making out such a case, the Council, in my view, in responding to Ms Marlow’s efforts to remedy what she maintained was a plain violation of a public right of way, did not act in a manner that could reasonably be expected of a public authority in that position. In essence, the District Judge also reached that conclusion. In this judicial review it would be sufficient to defeat the claim if the District Judge had a rational basis for reaching the conclusion that in essence he did. Not only did he have such a rational basis; it was the only rational conclusion open to him, for the following reasons.[43]On 29 October 2007 (that is, nearly 4 years before Ms Marlow’s claim was conceded and before any significant legal costs had been incurred) the Council agreed to take action in her favour. That was the first opportunity to resolve the matter in a timely and cost efficient manner. The Council created an expectation that it would be so resolved. However, the Council changed its position. It needed nonetheless to recognise that it had created such an expectation at the outset, and to be sensitive to the fact that Ms Marlow had not pursued her application in the light of the Council’s change of position.[44]Following Herrick, the Council essentially accepted the merits of Ms Marlow’s claim. It did so in unqualified and unambiguous terms. It had taken expert legal advice, and told Ms Marlow that it had done so. For the second time, and in the strongest possible way, it created an expectation that effective action would be taken in Ms Marlow’s favour. As I remarked earlier, if the Council were concerned about the more general potential consequences of Herrick, and had reservations about the legal advice that it had received, then that was the time to explore the question further, before writing to Ms Marlow in the unqualified and unambiguous manner that it did. As it was, Ms Marlow must then have thought that she had achieved her objective.[45]The Council extended the period of compliance to 30 March 2011 (see paragraph 15 above). Again that was a strong signal to Ms Marlow that the Council was resolutely maintaining the position that it had earlier adopted, in her favour.[46]So far as the evidence before the District Judge and this Court is concerned, there followed what I have already described as a deafening and astonishing silence for nearly 3 months, until 29 June 2011. According to the evidence, Ms Marlow had no inkling that the Council was about yet again to perform a volte face, and strenuously to contest the substance of her application. That absence of notice was consistent with the fact that she turned up at the preliminary hearing on 29 June 2011 without legal representation. Minutes before the hearing began she was told by opposing counsel that the Council would now be resisting her application. It does not require great imagination to grasp the distressing effect that this announcement, made in the circumstances in which it was made, without notice, defeating an expectation that on this occasion had been maintained over a lengthy period, must have had on her. Furthermore, she was now for the first time confronted with two new legal “preliminary” points, putting aside the entirely new stand in respect of Herrick. The preliminary points failed. I have considered the judgment of the District Judge. The points were not impressive, but they threw a further obstacle in the path of resolution of the application.[47]The Council did not renege from the position that it announced on 29 June 2011, namely, that Herrick was wrong. The final hearing was scheduled to consume 3 days of judicial time in July 2012. Ms Marlow, and her legal team, had to prepare the case on the basis that, notwithstanding the success on 8 May 2012 in respect of the preliminary points, that substantive hearing would proceed. Indeed, new (leading) Counsel produced a supplementary skeleton argument, contesting Ms Marlow’s claim. However, as set out earlier, Kind had been decided in March 2012, and it is unclear with what real justification the Council was maintaining that Herrick was wrong and was compelling Ms Marlow to prepare for a substantive trial in which the correctness of Herrick would be an important issue.[48]When the Council finally accepted that after all it would not contest Ms Marlow’s application, it did so in a way that unnecessarily incurred further inconvenience (see paragraph 24 above). The Council then first agreed to pay Ms Marlow’s reasonable and proportionate costs, but later withdrew that offer in the circumstances that I have explained. The Council could have taken outside legal advice before again raising an expectation that, after receiving such advice, it defeated.[49]My strong impression in this case is that throughout the Council simply failed to take into account the expectations that it was creating, and how its frequent changes of position would inevitably affect Ms Marlow. Seen from its own perspective, the Council may have thought that each individual decision that it took was justified. However, like the District Judge, I have to look at the picture more broadly, and over the whole period of the disputed matter, and to take due account of the impact of the Council’s decision making on the citizen litigant. When the scenario is examined in that way, the Council’s conduct fell significantly short of what could reasonably be expected of a public authority in the present context, and it would represent a serious injustice if the Council were not liable for Ms Marlow’s reasonable and proportionate costs incurred in pursuing her application to its successful conclusion.[50]It was also contended that the District Judge did not deal seriatim with the points made to him by the Council. However, on authority, he was not required to do so. He had to state succinctly why he concluded that it was fair and reasonable that the Council should pay Ms Marlow’s costs. He did so, and in terms that made it plain why the Council had lost on that question. I have set out the matter more extensively and have given more elaborate reasons. However, the gist of my decision is basically the same as that given by the District Judge.[51]Another large issue now looms. I have done no more than decide that the decision of the District Judge as to the Council’s liability to pay costs is a lawful one. The Council strongly contests the amount of costs that are claimed. I was invited by Mr Paul Stinchcombe QC, on behalf of the Council, to give some guidance to the District Judge as to how he should approach a contest between the parties about the amount of costs. However, I have no jurisdiction to do so on this judicial review, I did not hear full argument on the point and in any event it would not have been appropriate to hear any such argument. I appreciate that the District Judge may find himself in a somewhat unenviable position, but it is not one that I can properly anticipate or seek to regulate.

Order

“The Respondent do pay the Applicant’s reasonable and proportionate costs of this action on a standard basis …”By a further letter in the same negotiations, dated 28 June 2012, the Council proposed the inclusion of the words “reasonable and proportionate” in the above formulation.

Cited in 1 later judgment