Supreme Court to consider whether claimants unsuccessful at permission stage of statutory and judicial review cases are liable for costs of multiple parties

The Supreme Court will this week hear a dispute over whether a claimant in statutory and judicial review cases who is unsuccessful at the permission stage should be liable for the costs of multiple other parties, including respondents and interested parties.

The appellant, CPRE Kent, had applied for judicial review against the first respondent, the Secretary of State for Communities and Local Government, the second respondent, Maidstone Borough Council, and an interested party, Roxhill Developments. This was over the adoption of the Maidstone Local Plan.

Mrs Justice Lang on the papers refused permission for statutory review.

The judge held this was a claim to which the cap on costs under the Aarhus Convention applied. She ordered that the appellant pay both respondents’ and the Interested Party’s costs up to that cap, totalling £10,000.

Following a request for a review of the decision on costs, the order was affirmed by HHJ Evans-Gordon (sitting as a deputy High Court judge) on 20 April 2018.

The appellant challenged that order.

In Campaign to Protect Rural England & Anor v Secretary of State for Communities and Local Government & Ors [2019] EWCA Civ 1230 Lord Justice Coulson said two potentially important issues arose on the appeal: “first, the extent to which a court can make adverse costs orders in favour of more than one defendant or interested party in a planning case where permission to apply for statutory (or judicial) review is refused; secondly, the proper application of what I shall call the Aarhus cap in a case which fails at the first hurdle (because permission is refused).”

On the first point, the Court of Appeal judge said: “Ordinarily, a claimant who issues and serves proceedings on other parties, and whose claim is then struck out or refused at an early stage, will prima facie be liable for those other parties' reasonable and proportionate costs.

“The issue that arises is whether different rules apply to claimants in judicial or statutory review cases (particularly planning cases), or whether they are prima facie liable for the reasonable and proportionate costs of defendants and interested parties of preparing and filing an AoS [Acknowledgment of Service] and summary grounds, if permission is then refused. For the reasons set out below, and subject to the particular point I emphasise about the proportionality of the costs claimed, I consider that different rules do not apply and that such claimants may be liable for more than one set of reasonable and proportionate costs.”

Lord Justice Coulson set out in summary form his conclusions on the applicable principles, which he said applied both to judicial review and statutory review cases:

"a) When permission to seek review is refused, a claimant may be liable to more than one defendant and/or interested party for their costs of preparing and filing their AoS and summary grounds.

b) It is not necessary for the additional defendant(s) and/or interested party to show "exceptional" or "special" circumstances in order, in principle, to recover those costs.

c) However, to be recoverable, those costs must be reasonable and proportionate. So, for example, if there is an obvious lead defendant and the court was not assisted by the AoS or summary grounds of an additional defendant(s) and/or interested party, then the costs of that additional defendant(s) and/or interested party may not be proportionate and so will not be recoverable. That is an assessment which is case-specific and not susceptible to more general rules."

CPRE Kent appealed to the Supreme Court. The case will be heard by a panel comprising Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Leggatt and Lord Burrows on 28 January 2021.