Bolton Metropolitan District Council & Ors v Secretary of State for the Environment & Ors [1995] UKHL 27

House of Lords
Between
Bolton Metropolitan District Council & OrsAppellantSecretary of State for the Environment & OrsRespondent
Before
Lord Goff of ChieveleyLord MustillLord Slynn of HadleyLord Lloyd of Berwick LordSteynDate 6 July 1995
My Lords,For the reasons given in the speech of my noble and learned friend, Lord Lloyd of Berwick, I, too, would grant the order as to costs in this House and below.

LORD MUSTILL

My Lords,For the reasons given in the speech of my noble and learned friend, Lord Lloyd of Berwick, I, too, would grant the order as to costs in this House and below.

LORD SLYNN OF HADLEY

My Lords,I also would make the order for costs proposed by my noble and learned friend, Lord Lloyd of Berwick for the reasons he gives.

LORD LLOYD OF BERWICK

My Lords,At the conclusion of the hearing counsel were invited to submit written representations on the question of costs, since it seemed desirable that something should be said about multiple representation in planning appeals before the House. In Birmingham City Council v. H. (A Minor) [1994] 2 AC 212 , there was before the House an application under section 34(4) of the Children Act 1989 . Numerous parties were represented, all by leading counsel. Yet there was no significant difference between the arguments of those who supported the appeal or those who opposed it. My noble and learned friend, Lord Keith of Kinkel said, at p. 217, that there must be a serious question whether such a degree of separate representation was justified.In the Birmingham City Council case all the costs were, in one way or another, met either by the Legal Aid Board, or otherwise at public expense. Here there is no question of any of the costs being funded by the Legal Aid Board. But similar considerations apply. The House will be astute to ensure that unnecessary costs are not incurred. Where there is multiple representation, the losing party will not normally be required to pay more than one set of costs, unless the recovery of further costs is justified in the circumstances of the particular case.There can, I think, be no doubt that in the past there has been a practice in the lower courts to award two sets of costs in certain types of planning appeal under section 288 of the Town and Country Planning Act 1990 , and its predecessors, notably where a decision of the Secretary of State in favour of a developer is challenged by the local authority, and the Secretary of State successfully defends his decision. In such cases the developer has usually been regarded as having a separate interest which he is entitled to protect at the local authority's expense. This practice was recognised by Simon Brown J. in Waverley Borough Council v. Secretary of State for the Environment [1988] 3 P.L.R. 101 .However, in Wychavon District Council v. Secretary of State for the Environment (1994) 69 P. & C.R. 394 the Court of Appeal cast doubt on the current practice. In that case the developer had been awarded the whole of his costs in the court below, and the Secretary of State got nothing. The Court of Appeal held, in my view correctly, that this was wrong. The Secretary of State should have been awarded the whole of his costs. The Court of Appeal could not, however, touch the award of costs in favour of the developer, since the developer was not represented on the appeal. But Leggatt L.J. said, obiter at p. 397:
"If the developer had not been awarded any part of his costs, he might not have been able to complain."
A little later he said:
"In my judgment in circumstances such as these where the issues argued on behalf of two or more respondents are identical, the court should be disposed to make only one order for costs …."
What then is the proper approach? As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule. But the following propositions may be supported.(1) The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award of costs by apportionment, whether by agreement with other parties, or by further order of the court. In so far as the Court of Appeal in the Wychavon District Council case may have encouraged or sanctioned such a course, I would respectfully disagree.(2) The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of costs in every case.(3) A second set of costs is more likely to be awarded at first instance, than in the Court of Appeal or House of Lords, by which time the issues should have crystallised, and the extent to which there are indeed separate interests should have been clarified.(4) An award of a third set of costs will rarely be justified, even if there are in theory three or more separate interests.On the facts of the present case the Secretary of State is clearly entitled to the whole of his costs. The only question is whether the Manchester Ship Canal Co. should also receive their costs. In my opinion they should. I accept that the issues were all capable of being covered by counsel for the Secretary of State. But the case has a number of special features.First, the case raised difficult questions of principle arising out of the change of Government policy towards out-of-town shopping centres between the date of application and the final decision. The Secretary of State was concerned not only to support his decision, but also to explain and defend his wider policy. If the appeal had gone the other way, the case would in all likelihood have gone back to him for re-determination de novo. To that extent he had to remain aloof from the parties. On the other hand, the developers were concerned only with the outcome of this particular appeal. They were entitled to take the view that on the facts of this case they had a sufficiently independent interest requiring protection so as to justify separate representation.Secondly, the scale of the development, and the importance of the outcome for the developers, were both of exceptional size and weight.Thirdly, this was an unusual case in the sense that the opposition came, not from the local authority, but from eight neighbouring authorities supported financially by a consortium of major commercial interests.For these reasons, I consider that the developers, the Manchester Ship Canal Co., are in this case entitled to their costs in this House and below. This is in accordance with the order made by Schiemann J. at first instance, after hearing full representations on the point. No distinction need be drawn in this case between the costs at first instance, and the costs in the Court of Appeal and the House of Lords.Miss Hamilton pointed out that the case was also one of great importance for the Trafford Park Development Corporation. No doubt she is right. But the interests of the developers, and the development corporation, were to all intents and purposes identical. The House is grateful for her further written submissions. But a third set of costs would not be justified, save to the extent allowed by Schiemann J.

LORD SLYNN OF HADLEY

My Lords,For the reasons given in the speech of my noble and learned friend, Lord Lloyd of Berwick, I, too, would grant the order as to costs in this House and below.Order accordingly.