Another Judicial Slap on the Virtual Hand

John Pugh-Smith offers a cautionary tale for parties that fail to keep the Court in the loop when settlng a planning dispute.

There come along occasions in a lawyer’s life when a Planning Court judgment brings a wry smile and, perhaps, even a virtual fist pump. It may be recalled that in Bovale Limited v Secretary of State for Communities and Local Government [2008] EWHC 2143 (Admin) Mr Justice Collins attempted to curb the practice of the Secretary of State, through the (then) Treasury Solicitor, to ambush a claimant in a s.288 challenge by, in effect, withholding its defence until the hearing date had been fixed.

However, his attempt to lay down, in effect, a requirement to serve grounds of defence with the acknowledgment of service was roundly rejected by the Court of Appeal [2009] EWCA Civ 171. It held, in trenchant terms, that it was for the Rules Committee rather than a judge too freely exercising his case management powers, to vary the rules and practice directions. Subsequently, though not until October 2015, through the permission filter and the need to file, with the acknowledgment of service, summary grounds of defence that the procedural gap was actually filled.

Now, in a recent decision of Mr Justice Holgate, Westminster City Council v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1472 (Admin) has effected a suitable “judicial slap” for another prevalent practice of parties not properly engaging with the requirements for the final disposal of a challenge through a consent order. Here, the Judge required the parties to attend, remotely, to explain the reasons for failures to comply with directions and the late settlement of the claim. Following the hearing on 5th March 2020 Mr Justice Holgate delivered an ex tempore judgment in which he expressed his strong disapproval of such lackadaisical conduct.

However, his judgment has a wider application. .The Judge remarks: “I would say straight away that the behaviour which occurred here does not, in my experience, represent conduct typical of the claimant or its legal representatives or officials.

"But unfortunately, looking at the position in the Planning Court overall, what happened in the present case is not uncommon. In a significant proportion of the cases dealt with by consent orders or withdrawal, the court was notified of the settlement less than 10 days before the hearing. In some instances, the court was notified after the judge had spent time, sometimes a day or more, pre-reading the papers, or even on the day of the hearing. It has therefore become important for the court to emphasise the need for parties to adhere to good practice and to correct and discourage bad practice”

The Council had made two section 288 challenges against planning inspector decisions. The substantive hearing of them had been listed for a one-day hearing on 5th March 2020. On 12th February, the Council had sent a draft consent order to the other parties with a view to settlement. In the Judge’s words: “It was accompanied by a schedule to justify the making of the order containing only 4 terse paragraphs.

They simply stated that the key issues in this litigation had been decided by the Court of Appeal on 18th December 2018, the majority of decisions by planning inspectors reflected that judgment, the legislation which had given rise to the issues had been repealed and the Claimant did ‘not consider it a proportionate use of resources to continue this claim to final determination’.

On any view it was a very straightforward document requiring little time to prepare”. It had also had not referred to payment of the Secretary of State's costs although the Council was required to pay them by reason of CPR Part 38 (Discontinuance). The Court had not been notified of the intention to settle until 26 February. It had directed that a draft order be filed by 28 February explaining the lateness of the settlement, the failure to apply for an extension of time, the delay in sending the consent order to the Court and the reasons for the Council’s failure to comply with directions that had been given as to the filing of trial bundles and skeleton arguments.

The Council did submit a draft consent order which provided for the discontinuance of both claims, the vacation of the hearing date and, in that version, payment of the Secretary of State’s costs. However, no explanation had been provided for these procedural failures. In a letter dated 4 March the Council had given an explanation about the costs discussions but which was inconsistent with a later, undisputed, chronology provided by the Secretary of State.

Here, the Judge considered that the council’s letter of 4th March was lacking in candour and gave a misleading impression to the Court; that a draft consent order agreeing to pay the Secretary of State’s costs should have been sent with the letter of 12th February; and the Court should have been properly informed at that stage about what was happening with the claims. The parties were obliged to inform the Court as soon as possible after becoming aware that a case was likely to settle to help it to further the overriding objective and also of the duty of candour (as explained in R. (Khan) v Secretary of State for the Home Department [2016] EWCA Civ 416 at para. 48).

In that regard, the “duty of candour” runs throughout the judicial review or statutory challenge process. As Lord Justice Beatson comments in Khan (at para. 48): “It must also be borne in mind that the duty of candour is a continuing one. It includes a duty to reassess the viability and propriety of a challenge in the light of the respondent’s acknowledgment of service and summary grounds.”

There was also an issue as to why the council’s tactical decision to discontinue the proceedings was not taken until three weeks before trial, although it was clear that the decision had been reached by early February. The Court's ability to deal with its caseload in accordance with the targets in CPR Practice Direction 54E depended upon all parties taking a realistic view of their prospects of success. Settlements which occurred at a late stage for no good reason undermined the efficient running of the court in the interest of all users. Paragraph 12.2.1 of The Administrative Court Judicial Review Guide 2019 set out good practice to be followed by parties in order to comply with their duty to help the court and further the overriding objective in CPR rule 1.1. –

Regarding the contents of the draft consent order, Paragraph 17 of CPR PD 54A set out the procedure for obtaining the Court's approval of a consent order for the disposal of a case. The draft legal statement needed to be clear, correct and adequately reasoned. This was particularly so as that statement, being contained in the Court order, might affect the subsequent re-examination of the case by the local planning authority or Secretary of State because these matters will generally affect the re-determination. The statement may also affect the application of the doctrines of issue estoppel and abuse of process.

It therefore follows that a party contemplating submission to judgment needs to ensure that it initiates the necessary steps sufficiently early to enable all parties, fairly, to have a reasonable opportunity to agree the terms of the order and the statement of the legal basis upon which relief is sought from the court and for a judge to consider approving that order. This needs to be done sufficiently far in advance of any fixed substantive hearing so that the Court’s resources can be redeployed rather than wasted, and other cases may be heard sooner.

Accordingly, from the moment when permission is granted, a defendant should be keeping under review whether it is appropriate to submit to judgment, and if so on what grounds. Likewise, a claimant should review the claim from at least the service of detailed grounds of resistance and any evidence in support to see whether that material affects the assessment of the merits, notwithstanding the grant of permission to proceed because at that earlier stage the case crossed the threshold of arguability. Decisions on merit and any action to settle the case should be taken as soon as possible, bearing in mind that cases in the Planning Court generally proceed on a review of documentation. They do not depend on the hearing of live evidence. Whether the motive for settling a case is tactical or based upon a review of the legal merits of the litigation, it is imperative that the party desiring a settlement should act promptly.

The initial judgment concludes as follows:

73. In the present case, I had been considering whether to make an order for costs in relation to today’s hearing against the claimant, and the possibility of awarding those costs on an indemnity basis. The written explanations provided by the claimant were most unsatisfactory for the reasons I have explained and canvassed with counsel this morning. It was those responses which made it necessary for the hearing to take place.

The claimant had two opportunities to explain its position in writing and the court was placed in the position of having to rely substantially upon the material provided by the GLD in order to understand some important aspects of what had occurred. The position was not assisted by some of the oral submissions received by the court this morning which did begin to raise doubts in my mind as to whether the necessary lessons from this experience have truly been learnt.

74 However, I recognise that a hearing of this nature has probably never taken place before in the Planning Court. Indeed, I am keen that it should not be necessary for it to be repeated at all often. I also pay particular attention to the stance taken by Mr Westmoreland Smith on behalf of the first defendant, who does not ask for any order in favour of his client in relation to today’s costs. The GLD has apologised for not notifying the court of the position from 20 February 2020. That, of course, does not deprive the court of jurisdiction to order such costs, but, looking at the circumstances in the round, I have decided not to make an additional order of costs in respect today’s hearing against the claimant

After the ex tempore judgment had been handed down, the Court's attention was drawn to the possible need to consider the effect of the provision under CPR rule 2.1.1.for time limits to be varied by agreement of the parties. The Judge responded by stating that the time limits set by the procedural directions for a trial bundle and skeleton arguments did not exclude or modify the application of Rule 2.1. However, that was always subject to the parties' obligation to assist the Court in furthering the overriding objective. Accordingly, agreed extensions of time should not imperil a future hearing date or otherwise disrupt the conduct of the litigation, applying Hallam Estates Ltd v Baker [2014] EWCA Civ 661 @ [12] and [30-31].

The Judge concludes his Addendum in the following terms:

102 Since the hearing on 5 March this country has had to deal with the Covid-19 emergency. Strenuous efforts are being made to maintain the operation of our court and tribunal system. The obligation on all parties under CPR 1.3 to help the court further the overriding objective has plainly become all the more important. The need to avoid a fixture having to be vacated and the court’s resources wasted as the result of an unjustifiably late discontinuance or settlement must be self-evident.

So, what are the messages to be conveyed not just to other members of a hard-pressed public sector Legal Department but also to clients? The first, perhaps glibly, is that tide, time and Planning Court judges will wait for no man! Secondly, are the overriding duties that the parties’ lawyers have to the Court which override tactical or other reasons for delayed instructions and their outworkings.

Thirdly, there is the collective responsibility, particularly from those from the other “planning professions” to take more seriously these overriding duties, and, to respond promptly and sufficiently, whatever may be their “working environment” at the time. Finally, is it not time for the RTPI to review its own guidance, again, and to put it more in line with that from the RICS regarding professional duties and what constitutes sanctionable misconduct? Only in these ways can judicial and public confidence be restored in land-use planning processes as we try to “do different, do better” after Lockdown, and, if we are going to achieve any lasting beneficial changes from the far reaching effects of this Pandemic.

John Pugh-Smith FSA FCIArb practises as a barrister from 39 Essex Chambers. He is also a member of the RICS President’s appointment panel. He has acted as advising counsel and also an arbitrator, independent expert and dispute facilitator on a variety of references concerning the interpretation of section 106 and development agreements. He served as one of the DCLG’s panel of “Section 106 brokers” and currently acts as one of the two technical advisers to the All Party Parliamentary Group on Alternative Dispute Resolution and as a member of the Design Council’s Highways England Design Review Panel.