Davey v Aylesbury Vale District Council [2007] EWHC 116 (QB)
[16]That may seem harsh to an extent, but otherwise the position of a potential applicant is, as it seems to me, prejudiced because he will not know, when he has acted properly in giving advance notice, what he is potentially letting himself in for. If it is merely a question of costs incurred in the acknowledgement of service, they are likely to be relatively modest. If on the other hand, he chooses to plunge into litigation without doing what he ought to do in advance and giving the necessary warning, then it may be that he is asking for trouble and asking for the amount to be significantly greater. " 4. "47 The fourth issue raises a matter of considerable public importance, namely as to the guidance to be given by this Court concerning the award of costs at the permission stage of claims for judicial review. The issue affects not only claimants and defendants, but also the interested parties and the court itself in the access that it provides to justice, having regard to the overriding objective of dealing with cases justly in CPR Part 1. and good public administration. More precisely, on the facts of this case, the issue is whether Moses J was entitled in the exercise of his discretion to order Mount Cook to pay the Council's costs of filing an acknowledgement of service and of successfully resisting its oral application. " In the remaining paragraphs of his judgment, (48 to 82) Auld LJ considered that issue in depth. He held that Moses J had been entitled to make an order that Mount Cook should pay the Council's costs of preparing and filing an acknowledgement of service and of appearing to resist the grant of permission. He also gave guidance upon when such orders should be made. 5. "I have set out Collins J's reasoning at some length Extracts from paragraphs 14 to 18 and paragraph 21 to demonstrate that his ruling was confined to the award to a successful defendant at the permission stage of his costs of filing an acknowledgement of service. It did not extend to an award to a defendant of any of his other costs in successfully resisting a claim at the permission stage, in particular to any costs of and/or occasioned by an attendance at a permission hearing. " 17 In my judgment the decisions in Leach and Mount Cook are concerned with the jurisdiction and practice of the court to award costs to defendants who argue successfully at the permission stage that permission to bring the claim for judicial review should not be granted. Nothing within those decisions bears expressly or directly upon whether a successful defendant in proceedings in which permission has been granted can recover "pre-permission costs" under an order granting him his costs expressed in the way that Forbes J expressed himself. 6. "I would just say briefly that Mr. Harwood has submitted that the only costs which can be recovered before the grant of permission.....are the costs incurred by the defendant in preparing its acknowledgment of service and the grounds of resistance. He submits that that is the logical consequence of a sensible and purposive reading of the practice direction in relation to costs at permission hearings. I do not agree. The costs at permission hearings are subject to the particular rule, in my judgment, because whether a defendant is represented or not is a matter over which the claimant has no control and in respect of which the rules make no requirement. It is a matter of choice by the defendant. It is not thought appropriate as a general rule that the choice exercised by the defendant should lead to a significant costs burden caused only by the attendance of counsel and solicitors on an occasion where a matter is being filtered out only. But that seems to me to be irrelevant to the question of whether costs incurred before the permission hearing, in addition to the acknowledgment of service and grounds of defence, should be paid. Those costs, if the claim is ultimately unsuccessful will, unless there is clear evidence to the contrary, have been incurred as part of a successful resistance of the claim. Very often a lot of the preliminary work.... will be invaluable in the subsequent preparation of witness statements. It would be very odd if the happenstance of when that work was done should mean that it was recoverable or not. I can see no advantage, in terms of the administration of justice or in fairness to any party, that would require this work to be done only after permission had been granted if it were to be recoverable in costs. This would simply be to substitute a timing point for a substantive point. " As I understand it the substantive decision was reversed on appeal in this case but nothing adverse was said about the ruling upon costs. 7. "The costs of dealing with a threatened claim area generally irrecoverable, unless a claim is made, gets permission and eventually the claimant loses. Equally, if permission is not granted, such costs are not recoverable unless an Acknowledgement of Service is filed, in which case the court may make an order relating to the costs incurred in preparing that Acknowledgment: see Leach. Such costs will not usually include pre-claim costs. " 20 In my judgment both Young and Thurman and Earle suggest strongly that very experienced judges of the Administrative Court have considered it open to them to make orders for costs against unsuccessful applicants which include "pre-permission costs" after a substantive hearing. I reject the suggestion that Collins J's remarks were somehow limited. In my judgment his language is clear and, to repeat, amounts to the assertion that costs of dealing with a threatened claim (pre-permission costs) may be recoverable against an unsuccessful claimant after a substantive hearing. 21 In the light of this review of the relevant rules and the authorities which existed before Forbes J made his decision I have no doubt but that judges of the Administrative Court have proceeded on the basis that it is open to them to award "pre-permission costs" against an unsuccessful claimant after a substantive hearing. Given that understanding, in my judgment the most obvious and natural meaning of the order of Forbes J is that the Claimant should pay 75% of the Defendants costs including 75% of its "pre-permission costs" but not the costs of the permission hearing. In consequence I agree with the Master's interpretation of the order of Forbes J. 22 Mr Pereira, Counsel for the Appellant, argued that the reasoning which led to the decisions in Leach and Mount Cook should also lead to the conclusion for which he contends in this case. His primary contention is that in those cases the courts, as a matter of policy, considered it appropriate to limit the costs payable by an unsuccessful applicant in the event that his application for permission was unsuccessful unless one or more of the features identified in Mount Cook was present which justified a different order. He submitted that cases such as Leach and Mount Cook are cases where an applicant cannot surmount the comparatively low threshold test for the grant of permission and yet the applicants are protected from substantial orders for costs. Yet, if the Respondent is right, submitted Mr. Pereira, an applicant who has a case which is meritorious enough to warrant the grant of permission will find himself in a worse position, in relation to costs, than if his claim had not surmounted the permission hurdle. That, he said shortly, cannot be right. 8. ".....The objects of the obligation on a defendant to file an acknowledgement of service setting out where appropriate his case are: 1) to assist claimants with a speedy and relatively inexpensive determination by the court of the arguability of their claims; and 2) to prompt defendants - public authorities - to give early consideration to and, where appropriate, to fulfil their public duties. It would frustrate those objects to discourage would-be claimants from seeking justice by the fear of a penalty in costs if they do not get beyond the permission stage or to clog up that stage with full-scale rehearsals of what would be the substantive hearing of a claim if permission is granted. Thus not' only the statutory scheme, [a reference to the CPR] as supplemented by the Practice Direction and Pre-Action Protocol, but also the public law context, is different from that governing the generality of civil law proceedings, differences that suggest the need for, and intention to provide, a different costs regime in such cases." Paragraph 71 of the judgmen 9. "Such an approach seems to me to accord with public policy in providing ready access to the courts by individuals or bodies seeking relief from and/or to draw attention to actual or threatened transgressions of the law by public bodies, whilst, in exceptional cases protecting those bodies and the public that funds them from unnecessary, burdensome and costly substantive litigation....." Paragraph 77 of the judgment 24 Drawing upon these passages Mr. Pereira argued that the practice of the courts in relation to pre-permission costs should be the same whether or not the proceedings end at the permission stage. 25 I do not think that this appeal is an appropriate vehicle for a decision about what the practice of the court should be. As I have said, the task of the Master and this court is to determine what Forbes J meant by his order. Since none of the arguments put before me were ever raised before Forbes J it is impossible for me to hold that Forbes J intended to reflect those arguments in his order and exclude "pre-permission costs. " 10. "The Defendant rightly accepts that the Claimants are not liable for his costs of the permission hearing or other pre-permission costs save for the acknowledgment of service and summary grounds. " That observation was made following the consideration of written submissions by the parties. 27 The written submissions of the Applicants in Tinn and Mardlin are within the Bundle at pages 52 to 55. They contained the submission that the Claimants should not be responsible for "pre-permission costs." The reply of the Defendant was to concede that "pre-permission costs should be limited to the costs of the acknowledgment of service and preparation of summary grounds." Bundle page57 28 The written submissions of the Defendant in Tinn and Mardlin contain no explanation about why he made his concession. I should record, however, that in their written submissions the applicants relied upon the sort of argument deployed by Mr. Pereira in this case as to the effect of Leach and Mount Cook. I can only assume that that both the advisors of the Defendant and Bean J accepted the submissions made by the Applicants. 29 The determination of Bean J, however, cannot help in deciding upon the meaning to be given to the order of Forbes J. It was made many months after the decision of Forbes J and it was made in the context of the written submissions to him and with no reference to Young or Thurman and Earle: 30 I have reached the conclusion that this appeal should be dismissed. I should add two things for completeness. Firstly Mr. Pereira sought to introduce a witness statement from his instructing solicitor. I looked at the statement but as will be apparent it has played no part in my reasoning. In my judgment the reality is that the statement was not admissible in evidence since the requirements of Ladd v Marshall could not possibly be satisfied. Secondly, it was through the efforts of the Appellant's solicitors that the decisions in Young and Thurman and Earle were brought before the court. For that attention to professional probity I am grateful.