Harlow District Council v Powerrapid Limited [2023] EWHC 586 (KB)

“12. The Claimant is the proprietor of a piece of land (“the Land”) which is part of the Nortel Complex at London Road in Harlow. The Nortel Complex was purchased in 1995 by BNR Europe Ltd from the New Town Commission (“NTC”), which in 2008 was replaced by the Homes and Communities Agency, which now trades under the name of Homes England (“HE”). 13. The Land was subject to a Deed of Covenant dating from the 1995 purchase. The covenant embodies what is commonly referred to (and to which I shall refer) as an “overage clause”

“17. Whether or not the covenant has been the main reason for development not progressing, there now appears to be a way forward through a dispute resolution mechanism contained within Section 10 of the covenant. That mechanism was triggered whilst the Inquiry sat and would require the parties to refer the matter to an expert whose decision would be final and binding. The AA [Acquiring Authority] has expressed surprise that the dispute resolution mechanism has not been tried before and concern that it cannot be invoked before the liability to make the 'additional' payment' has been triggered. Again, it is not for me to reach a finding on the interpretation of the covenant. However, the dispute resolution mechanism provides a hitherto untried means of moving forward and the objector's willingness to be bound by the outcome of the process would, at least, resolve the uncertainty which it says is its prime concern.”

“25 I also give significant weight to the availability of the significant amount of undeveloped land in reserve in the AA's ownership. As such, a compelling case for development of the Order land in the short term has not been made out. Whilst the AA has taken reasonable steps to acquire the land by means other than compulsory purchase, other options remain to be explored. Compulsory purchase has yet to become the last resort. An alternative to compulsory acquisition exists since there is a reasonable prospect that the objector will develop the land itself for the purposes set out in the Order in response to occupier demand. In these circumstances, it would be premature to use CPO powers to acquire the Order land at this time.”

“…in exercise of his powers under section 5(4) of the Acquisition of Land Act 1981, section 250(5) of the Local Government Act 1972 and of all other enabling powers. HEREBY ORDERS that Harlow District Council shall pay to Powerrapid Limited their costs of the Inquiry, such costs to be taxed in default of agreement as to the amount thereof.”

“78 Under orders awarding the costs of court proceedings, pre-action costs (provided they meet the Gibson criteria) will be costs of (as opposed to incidental to) the proceedings. 79. A court’s order for “the costs of” court proceedings, by virtue of section 51 of the 1981 Act and the provisions of the Civil Procedure Rules at CPR 44-48 for the assessment of costs, extends in any case to costs “incidental to” litigation without any requirement for specific wording to that effect. 80. Costs “incidental to” litigation may include compliance with Pre-action Protocols. It would seem to follow that the costs of negotiations (before and after issue), which are normally recovered although not of use and service in the litigation itself, are recovered as costs incidental to the proceedings. 81. Where the Administrative Court makes an order embodying a costs award made by the Secretary of State under section 250(5) of the 1972 Act, section 51(1) of the 1981 Act, which applies to proceedings “before the court”, has no application. 82. The mechanism for quantifying costs is however (Maiden London Ltd v Ruddick & Anor) an assessment to which the Civil Procedure Rules, in particular CPR 44.4, apply. Applying CPR 44.4(a), subject to any express provision to the contrary, assessment will be (as in this case) on the standard basis. 83. The Civil Procedure Rules, as secondary legislation, have the force of law. Assessment on the standard basis (Newall v Lewis) in itself entitles a receiving party to recover costs “incidental to” proceedings. It would follow as a matter of law that an order of the Administrative Court, made under section 250(5), for the costs of an inquiry to be assessed on the standard basis, extends to costs incidental to the inquiry even if that is not expressly stated. 84. Applying Gibson, costs incurred before the inquiry process formally starts will (in principle, and subject to the established criteria) be recoverable under the Administrative Court’s order as costs of the inquiry. 85. If the above conclusions are correct, then by reference to established law and principle the costs recoverable under the Administrative Court’s March 2020 Order extend to pre-27 September 2018 costs and to costs that can properly be described as incidental to the inquiry. 86. If that is not correct, and the extent of the costs recoverable under the order turns upon the principles of construction outlined by counsel for both parties, the question will be whether an order for the costs of an inquiry, made under section 250(5) of the 1972 Act, should be construed more narrowly than an order of the court for the costs of proceedings, made under section 51(1) of the 1981 Act. 87. There seem to me to be several reasons why that should not be the case. 88. As Patterson J observed in R (Bedford Land Investments Ltd) v Secretary of State for Transport and Another, there is no limit on the Secretary of State’s discretionary power to award the “costs of the parties at the inquiry”

“(i) costs incurred prior to 27 September 2018 (ii) costs incidental to (as opposed to “costs of”) the public inquiry of 8-10 May 2019; (iii) costs incurred in respect of the “Overage Provision” applicable to the land the subject of the inquiry; and (iv) costs incurred after 16 October 2019.”

“(5) [The Secretary of State] may make orders as to the costs of the parties at the inquiry and as to the parties by whom the costs are to be paid, and every such order may be made a rule of the High Court on the application of any party named in the order”

“11…As is clear from the section which I have just read, that is an enabling subsection. It gives no clue as to how the minister should set about the task of deciding whether or not to make such an order. To repeat, it simply empowers or enables the minister to make orders for costs in proceedings to which the section relates.”

“Why do we have an award of costs? Parties in planning appeals and other planning proceedings normally meet their own expenses. All parties are expected to behave reasonably to support an efficient and timely process, for example in providing all the required evidence and ensuring that timetables are met. Where a party has behaved unreasonably, and this has directly caused another party to incur unnecessary or wasted expense in the appeal process, they may be subject to an award of costs. The aim of the costs regime is to: • encourage all those involved in the appeal process to behave in a reasonable way and follow good practice, both in terms of timeliness and in the presentation of full and detailed evidence to support their case. • encourage local planning authorities to properly exercise their development management responsibilities, to rely only on reasons for refusal which stand up to scrutiny on the planning merits of the case, not to add to development costs through avoidable delay, • discourage unnecessary appeals by encouraging all parties to consider a revised planning application which meets reasonable local objections.” • encourage all those involved in the appeal process to behave in a reasonable way and follow good practice, both in terms of timeliness and in the presentation of full and detailed evidence to support their case. • encourage local planning authorities to properly exercise their development management responsibilities, to rely only on reasons for refusal which stand up to scrutiny on the planning merits of the case, not to add to development costs through avoidable delay, • discourage unnecessary appeals by encouraging all parties to consider a revised planning application which meets reasonable local objections.”

“What is a full award of costs? A full award of appeal costs means the party’s whole costs for the statutory process, including the preparation of the appeal statement and supporting documentation. It also includes the expense of making the costs application. Where the process concerns a called-in planning application, the eligible costs start from the date of the letter notifying the applicant of the decision to call-in the application. In other non-appeal cases, the eligible costs start from the date of the notification or statutory publication of, for example, the relevant order. This is the point at which the applicant for costs begins to incur expense in the ensuing statutory process. [Paragraph 40] What is a partial award of costs? Some cases do not justify a full award of costs, for example where the appeal is one of several joint appeals with evidence in common. Where the application for costs relates to one or some of the grounds of refusal but not all of them, an award might relate to the attendance of only particular witnesses. In these circumstances, a partial award may be made. The partial award may also be limited to a part of the appeal process. For example, where an unnecessary adjournment is caused by the unreasonable conduct of one of the parties, the award of costs may be limited to the abortive costs of attending the event on the day of the adjournment. A partial award may result from an application for either a full or a partial award. [Paragraph: 041] … How is the amount settled where an award is made? The Inspector or Secretary of State can only address the principle of whether costs should be awarded in full or in part, and not the amount – this is settled subsequently between the parties. Where a costs order is made, the party awarded should first send details of their costs to the other party, with a view to reaching agreement on the amount. Where costs are awarded against a party and the parties cannot agree on a sum, the successful party can apply to the Senior Courts Costs Office. [Paragraph: 044] What if the party does not pay? Once the Planning Inspectorate has made an award of costs, it has no further role, and it is for the parties to negotiate the amount and to agree on the arrangements for payment. Failure to settle an award of costs is enforceable through the Courts as a civil debt. If a party has any doubt about how to proceed in a particular case, they should seek legal advice. [Paragraph: 045]” (Emphasis added).

“How does the award of costs apply in the case of compulsory purchase and analogous orders? Compulsory purchase and analogous orders seek to take away a party’s rights or interest in land. .... Where objectors are defending their rights, or protecting their interests, which are the subject of a compulsory purchase or analogous order, they may have costs awarded in their favour if the order does not proceed or is not confirmed. … Costs will be awarded in favour of a successful remaining objector unless there are exceptional reasons for not making an award. The award will be made by the Secretary of State against the authority which made the order. Normally, the following conditions must be met for an award to be made on the basis of a successful objection: (a) the claimant must have made a remaining objection and have either: • attended (or been represented at) an inquiry (or, if applicable, a hearing at which the objection was heard); or • submitted a written representation which was considered as part of the written procedure; and (b) the objection must have been sustained by the confirming authority’s refusal to confirm the order or by its decision to exclude the whole or part of the claimant’s property from the order. ... [Paragraph: 057] How are objectors notified of the award of costs? When notifying successful objectors of the decision on the order under the appropriate rules or regulations, the confirming authority, usually the Secretary of State, will tell them that they may be entitled to claim costs and invite them to submit an application for an award of costs on the basis of their successful objection. The details of the level of costs are then a matter for negotiation between parties. [Paragraph: 058] Can an award be made for unreasonable behaviour? An award of costs cannot be made both on grounds of success and unreasonable behaviour in such cases; but an award to a successful objector may be reduced if they have acted unreasonably and caused unnecessary expense in the proceedings – as, for example, where their conduct leads to an adjournment which ought not to have been necessary [Paragraph: 059] … What if the objection is partly successful? Where a remaining objector is partly successful in opposing a compulsory purchase order, the confirming authority will normally make a partial award of costs. Such cases arise, for example, where the authority, in confirming an order, excludes part of the objector’s land. [Paragraph: 062] What if the compulsory purchase or analogous order is linked to another application? Sometimes joint inquiries or hearings are held into 2 or more proposals, only one of which is a compulsory purchase (or analogous) order, for example an application for planning permission and an order for the compulsory acquisition of land included in the application. Where a remaining objector, who also makes representations about a related application, appears at such inquiries or hearings and is successful in objecting to the compulsory purchase order, the objector will be entitled to an award in respect of the compulsory purchase or analogous order only. An objector is not, however, precluded from applying for the costs relating to the other matter on the grounds that the authority has acted unreasonably.

“(1) On an order for taxation of costs, costs that otherwise would be recoverable are not to be disallowed by reason only that they were incurred before action brought. This is carried by the Pecheries case, where the order was for party and party costs, and also by the Frankenburg case, where the costs were on the basis which was then known as the solicitor and client basis but is now called the common fund basis. I shall say more about these cases in due course. (2) If the order for costs is not for costs simpliciter, but for the costs " of and incidental to " the proceedings (and this is the language of the order in the present case), the words " incidental to " extend rather than reduce the ambit of the order. … I find great difficulty in seeing on what basis it can be said that the addition of these words drives out the right to antecedent costs which the Pecheries and Frankenburg cases established. The words seem to me to be words of extension rather than words of restriction.” (Emphasis added)

“…There were thus, three strands of reasonings, that of proving of use and service in the action, that of relevance to an issue, and that of attributability to the defendants' conduct…. Whatever may be the position on a party and party taxation, if the taxation is on the common fund basis, I think that one must go back to the words " costs reasonably incurred "; and, as I have said, I think that this must mean the costs of and incidental to the proceedings in question. Neither the fact that at the time when the costs were incurred no writ or originating summons had been issued, nor the fact that the immediate object in incurring the costs was to ascertain the prospective litigant's chances of success, will per se suffice to exclude the costs from being regarded as part of the costs of the litigation that ensues. Of course, if there is no litigation there are no costs of litigation. But if the dispute ripens into litigation, the question then arises how far the ambit of the costs is affected by the shape that the litigation takes. (6) It is obvious that the matters disputed before a writ or originating summons is issued, and the matters raised by the writ or originating summons, and by any pleadings and affidavits, may differ considerably from each other. A wide-ranging series of disputed matters may be followed by a writ or originating summons which raises only a few of the issues; or a narrow dispute may be followed by proceedings which seek to resolve wider issues as well. How far does the ambit of the litigation extend or restrict the matters occurring before the issue of the writ or originating summons which may be included in the taxed costs on the common fund basis? If the proceedings are framed narrowly, then I cannot see how antecedent disputes which bear no real relation to the subject of the litigation could be regarded as being part of the costs of the proceedings. On the other hand, if these disputes are in some degree relevant to the proceedings as ultimately constituted, and the other party's attitude made it reasonable to apprehend that the litigation would include them, then I cannot see why the taxing master should not be able to include these costs among those which he considers to have been " reasonably incurred."” (Emphasis added)

“16. …[I]t is beyond question that a simple order that one party pay another party's "costs of proceedings to be assessed on the standard basis" gives an entitlement to costs both of and incidental to those proceedings. The analysis which leads to that conclusion (which Mr Marven for the defendants did not seriously challenge) is as follows. Section 51(1) of the Supreme Court Act 1981 provides (to the extent relevant) as follows: "Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in: … (b) The High Court … shall be in the discretion of the court." 17. Prior to 1986, one of the bases upon which costs could be ordered was the "common fund" basis. In Re Gibson's Settlement Trust [1981] 1 Ch 179, a case about costs awarded on the common fund basis, Sir Robert Megarry V−C sitting with assessors, said, at page 185F to 186A: "(3) The power to award "the costs of and incidental to all proceedings in the Supreme Court" is conferred by the Supreme Court of Judicature (Consolidation) Act 1925, section 50(1); and these words are echoed by R.S.C., Ord. 62, r 2 (4) which provides that the power is to be exercised "subject to and in accordance with this Order." By rule 28(2), on a party and party taxation there are to be allowed: "all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed." By rule 28(4), on a taxation on the common fund basis, "being a more generous basis than that provided for by paragraph (2)," there is to be allowed "a reasonable amount in respect of all costs reasonably incurred," and paragraph (2) does not apply. I think that from the setting in which this provision occurs, it is plain enough that the words "costs reasonably incurred" refer to "the costs of and incidental to" the proceedings in question.” 18. Costs on the standard basis were introduced in 1986 and, as now provided for in CPR 44.4, this permits recovery of costs provided that they have not been "unreasonably incurred or are unreasonable in amount". The CPR introduced the additional requirement that the court will "only allow costs which are proportionate to the matters in issue". It follows that, subject to the question of proportionality and burden of proof, the modern standard basis of assessment is broadly equivalent to the old common fund basis of taxation, so that, by parity of reasoning, an order for costs of proceedings on the standard basis picks up costs "of and incidental to" those proceedings.” (Emphasis added)

"all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed."

“Basis of assessment 44.3 - (1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs – (a) on the standard basis; or (b) on the indemnity basis, but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount. … Factors to be taken into account in deciding the amount of costs 44.4- (1) The court will have regard to all the circumstances in deciding whether costs were- (a) if it is assessing costs on the standard basis – (i) proportionately and reasonably incurred; or (ii) proportionate and reasonable in amount, or (b) if is assessing costs on the indemnity basis – (i) unreasonably incurred; or (ii) unreasonable in amount. …” (a) on the standard basis; or (b) on the indemnity basis, Factors to be taken into account in deciding the amount of costs (a) if it is assessing costs on the standard basis – (i) proportionately and reasonably incurred; or (ii) proportionate and reasonable in amount, or (b) if is assessing costs on the indemnity basis – (i) unreasonably incurred; or (ii) unreasonable in amount. …”

“59. It seems to me that on those authorities, the law is as follows. If one is being asked to make an order which includes costs incurred before an action is commenced, section 51 of the Supreme Court Act entitles one to do it in appropriate cases, as does the relevant insolvency rule which does not refer to "costs of and incidental to", but simply refers to the costs of any person appearing on the petition.”

“57. Finally, I was referred to the decision of Morgan J in Neuman's LLP v Andronikou [2012] EWHC 3088 (Ch). He was there dealing (again I have only seen a short extract from what is obviously a very extensive judgment), as appears from paragraph [132], with the jurisdiction under the Insolvency Rules, Rule 4.218(3)(h) of which refers to "the costs of any person appearing on the petition whose costs are allowed by the court". At paragraph [133] he says this: "As regards the costs incurred between 15th December 2009 and 23rd December 2009..." And I interpose to say one can see from paragraph [131] that the latter date is the date when HMRC presented its winding up petition, he continues: "... it is helpful to refer to the general approach which is adopted in relation to orders for costs where a party is awarded the costs "of and incidental to proceedings". It is established that such an order can extend to costs incurred before the proceedings were commenced. The position is discussed in detail in Re Gibson's Settlement Trusts [1981] Ch 179, in particular between pages 184E and 188B. The earlier decision in Frankenburg v Famous Lasky Film Service Ltd [1931] 1 Ch 428 is analysed at pages 186E to 187B. In my judgment, it is open to me to hold that the company's costs incurred in the period from 15th December 2009 to 23rd December 2009 were "the costs of any person appearing on the petition"." 58. So far as that is concerned, it is true that he refers to Re Gibson as dealing with the approach that should be adopted in relation to orders where a party is awarded the costs of and incidental to proceedings. But it is noticeable that the actual decision is the meaning of the words of the insolvency rule, which does not refer to "costs of and incidental to" but simply “the costs of any person appearing on the petition”, and he takes the view that those words are sufficient to include, in appropriate cases, costs incurred before the petition was presented.” (Emphasis added)

“33. The language used in s 250(5) gives the Secretary of State a discretionary power to award costs to “the parties at the inquiry”

“45. As set out an inquiry is opened, evidence heard and then closed. The preceding steps, as the rules make clear, are part of the process leading up to the inquiry but are not part of the inquiry itself. That means that the phrase in s 250(5) “at the inquiry” means what it says: physical presence or representation at a convened public inquiry. That is consistent with the statutory background, context and language in both the ALA and the LGA. To hold otherwise would, in my judgment, distort the ordinary use of the English language.”

“47 …[I]t is said by the Secretary of State that the literal reading proves too much as the only costs that could be awarded would be those incurred at the inquiry. I do not accept that position. The discretionary power is to award the “costs of the parties at the inquiry”

“That leaves the argument that common [sense] dictates that a party should not be left in a position whereby it can incur substantial expenditure and yet not recover the same even though a party may withdraw from the appeal process late in the day. In my judgment, that common sense approach should not lead to a different conclusion in terms of the interpretation of the circular to that which I have found to be correct. I say that for this reason: the circular is guidance and I stress that point. A decision-maker is to have regard to the guidance, and will no doubt give it appropriate weight in the decision-making process but, since it is guidance only, it does not follow that a decision-maker is bound to hold in any particular case that an order for costs should be made to run only from a date after the formal notification process of the inquiry has taken place. That may be the decision-maker's starting point, but it need not necessarily be his or her end point. The decision-maker will no doubt take into account all the circumstances which are material before he or she makes his order, final conclusion or decision. It therefore does not follow in my judgment that the interpretation I have placed upon this circular, and that which I have found the National Assembly was entitled to place upon it, necessarily means the costs incurred before a formal notification has taken place of the inquiry arrangements will never be awarded. Whether or not they will be awarded will depend upon the particular circumstances of any particular case.” (Emphasis added)

“… the dispute had clearly been a source of friction between the parties which has inhibited progress on the development of the land”

“98. I regard as insupportable the proposition that the costs of obtaining the Administrative Court’s order of March 2020 are irrecoverable, primarily because it runs directly contrary to Maiden London Ltd v Ruddick & Anor. With regard to the Points of Dispute, Practice Direction 44, paragraph 4.2 refers to a specific “no order as to costs” provision, which has no application here (nor does CPR 44.10, which applies to an order which does not mention costs). It would seem evident that the Administrative Court’s order in Maiden London Ltd did not make any specific provision for the costs of the application for an order, or the issue of recoverability would never have arisen. 99. Mr Cohen’s cross-reference to Part 8 costs-only proceedings seems to me to be rather artificial. It seems to me much more logical, as did Yip J, to treat the obtaining of the order of the Administrative Court (expressly provided for in section 250(5) of the 1972 Act) as the final order for costs of the inquiry, and as such part and parcel of the statutory inquiry process. Her decision is in any event binding upon me.”

“2. This is an appeal brought with leave of the single Lord Justice from the county court in relation to costs. As such, it is overcast, from start to finish, by the heavy burden faced by any appellant in establishing that the judge’s decision falls outside the discretion in relation to costs conferred upon him under rule 44.3(1) of the Civil Procedure Rules 1998. For reasons of general policy, namely that it is undesirable for further costs to be incurred in arguing about costs, this court discourages such appeals by interpreting such discretion very widely.”

“Broadly speaking a judge will allow an appeal … if satisfied that the decision of the Costs Judge was wrong … that is easy to apply to matters of principle or construction. However, where the appeal includes challenges to the details of the assessment, such as hours allowed in respect of a particular item, the task in hand is one of assessment or judgment, rather than principle. There is no absolute answer. Notwithstanding that the judge to whom the appeal is made may sit with assessors … the appeal is not a re-hearing and, given the nature of the Costs Judge’s task and his expertise, I would usually regard it as undesirable for it to be so … [S]ince the appeal is not a re-hearing I would regard it as inappropriate for the judge on appeal to be drawn into an exercise calculated to add a little here or knock off a little there. If the judge’s attention is drawn to items which, with the advice of his assessors, he feels should in fairness be altered, doubtless he will act. That is a matter for his good judgment.Permission to appeal should not be granted simply to allow yet another trawl through the bill, in the absence of some sensible and significant complaint. If an appeal turns out to be no more than such an exercise the sanction of costs may be used.” (Emphasis added)

“I am acutely conscious that questions have again been raised about the Guide itself and the methods and analysis that go into its production. In response, I would emphasise that the Guide is, as it has always been, no more than a guide and a starting point for judges carrying out summary assessment. This Guide is no different to its predecessors in that it continues to offer assistance to Judges. In every case, a proper exercise of judicial discretion has still to be made, after argument on the issues has been heard.”

“27. Guideline figures for solicitors’ charges are published in Appendix 2 to this Guide, which also contains some explanatory notes. The guideline rates are not scale figures: they are broad approximations only. 28. The guideline figures are intended to provide a starting point for those faced with summary assessment. They may also be a helpful starting point on detailed assessment. 29. In substantial and complex litigation an hourly rate in excess of the guideline figures may be appropriate for grade A, B and C fee earners where other factors, for example the value of the litigation, the level of the complexity, the urgency or importance of the matter, as well as any international element, would justify a significantly higher rate. It is important to note (a) that these are only examples and (b) they are not restricted to high level commercial work, but may apply, for example, to large and complex personal injury work. Further, London 1 is defined in Appendix 2 as ‘very heavy commercial and corporate work by centrally based London firms’. Within that pool of work there will be degrees of complexity and this paragraph will still be relevant.” (Emphasis added)

“10. That takes me to the complexity point. It is common ground, as far as I know, that this is not a question of legal complexity. The question is whether this case was factually complex. The Defendant’s point there, as made by Mr. Cohen, is there was a two-day hearing, of which the evidence probably took a little over a day, with a half day site inspection. From that, we have a fairly brief and succinct judgment of which most, he is suggesting, is just background and about three pages is the actual meat of the issues upon which the decision turns. He also refers me to the fact that each party has one Q.C., no junior supporting them, and to the relative brevity of the parties’ (if I may describe them in this way) Statements of Case and written submissions. 11. The point, according to the Defendant, was simply this. Was there a compelling case for a compulsory purchase order? Was it really the last resort? That is a relatively straightforward question, turning on fairly narrowly defined issues, focusing particularly upon whether the Claimant intended to develop the property when demand justified it and just what that demand, at the time, was. The rest is described as more or less background or potential rather than actual issues between the parties. 12. It did occur to me that saying that whether there is a compelling case for a compulsory purchase order is a relatively straightforward question, is like saying that whether a party’s costs are reasonably incurred and reasonable in amount is a relatively straightforward question. It may sound straightforward but, as we know, in practice, it may not be. Sometimes it is simple to decide and sometimes we can spend several days arguing about it and looking at some quite complicated issues when we do so. The decisions are always fact sensitive. As Mr. Grant says, so are compulsory purchase orders. It is all going to depend on the situation. 13. I like Mr Cohen’s creative distinction between potential issues and real issues, but I do not think that it is a valid distinction for present purposes. The Defendant had a number of reasons, very carefully thought through, for believing that it was right to proceed with this compulsory purchase order. They involved, obviously, considerations of planning policy, development potential, demand, the benefits for the local community, valuation and so on. That was the Defendant’s case as put. 14. It seems to me that the Claimant was perfectly entitled to look at all of those reasons critically and to examine them critically and to take issue with such of them as the Claimant thought appropriate. If that was, as it would appear, distilled down to very succinct key points and put in writing, that is appropriate. One might say that that is the legal representatives’ job to do that, to put it to the planning inspector in as clear and succinct a way as possible, though the devil may be, to a certain extent, in the detail. As for having one Q.C. backed by a team of solicitors on each side, that just strikes me as an example of how to do the job properly. It does not seem to me to follow that one should conclude that the work itself is necessarily simple or straightforward. To my mind, it was not. 15. As we are looking at the Q.C.s, purely as background (as we are yet to consider counsel’s fees in this case) I am aware that planning disputes can command very high fees. In my own personal experience of assessing costs, the highest hourly rate ever conceded by a paying party to a Q.C. (as opposed to determined by me) was, in fact, in a rather difficult planning case. That is the nature of the beast: it is going to depend upon the facts of the case. As I say, that is just background, but it gives us a bit of context against which I am judging these hourly rates. 16. So that takes me to the skill, effort, and responsibility. For the reasons I have given, I believe that they are all present. I also bear in mind the expertise of the solicitors, which is carefully explained in the bill of costs and which I see no reason not to accept.”

“18. Then there is the place in which the work is done, which brings us to the subject of the guideline hourly rates. I start by saying that I appreciate that the 2021 guideline hourly rates have been applied for a very short period, but they are just guideline rates, based upon the best evidence available. I would be unable to accept that insofar as one does treat them as a starting point (and I will come to that) that it would be inappropriate to uplift them in an appropriate case simply because they are new. 19. I think that is exactly what one would do, but the real question for me is to what extent they are a useful starting point in this case, and I think it is, if at all, to a very limited extent. This is not massively heavyweight litigation, the sort of multimillion pound dispute with trials a couple of months long, but it is certainly not routine. It is a very specific sort of work. It is quite difficult and specialised. It gives rise to very specific issues. It requires very specific skills for which parties can expect to pay, I think, quite substantial fees. In its nature, it is work that one might well see undertaken, as in fact we do see in this case, by firms based in the City of London. 20. This ultimately comes down to my applying judgment and experience as best I can. It is useful, I think, to refer to the fact that Costs Judge Rowley in one of those really heavy commercial disputes last year, was awarding hourly rates of something like £750 an hour for Grade A. That gives us a little context. Obviously, that is not this sort of case at all, but I do judge it as a case, as I say, requiring specialist skills and I am not at all surprised to see it being undertaken by lawyers in central London. 21. If I were to accept the guideline rates as a starting point (which, for the reasons I have given, I do not think would be really right) I would find the London 1 rates rather more useful as a reference point than London 2.”

“certainly not routine”; “a very specific sort of work”; and “quite difficult and specialised”

“17. Time spent is not really a factor for present purposes. I know that Mr. Cohen touched on an apparently large amount of time spent by the litigation team. It was not really pressed as a particularly relevant point, but I think Mr. Grant has explained the context for that. There was more going on than simply obtaining an order from the administrative court. The litigation team did have to deal with costs and, as we have already found, the costs issues can be potentially quite complex. I have not lost sight of the fact that it was mooted by the Defendant that including certain categories of costs in the bill amounted to misconduct, so one should not understate the burden that is placed on the Claimant’s solicitors for these purposes. … 24. The litigation team, as I say, were doing more than getting an order rubber stamped. I accept that. Also, one can hardly expect the Claimant to change solicitors at this stage. They would pay similar rates to what they were paying for the planning team, but I do not really see a reason for the increase in the Grade A rate. I do not think that as between the parties, on the standard basis, that can be justified. I would limit it to the £525 that is claimed for the senior fee earner on the planning team. I have no difficulty with either the B or C rates and, again, insofar as Grade D is involved, I would limit that to £150 per hour.”