Costs and planning enforcement
The Court of Appeal has dismissed an appeal for costs in legal aid funded planning enforcement proceedings. Saira Kabir Sheikh QC explains why.
In a judgment handed down by the Court of Appeal last month, LJ Kitchen and LJ Irwin dismissed the appeal for costs relating to the decision of HHJ Ralls QC sitting as a High Court Judge on 25 November 2013. Permission to appeal was refused on paper by Gloster LJ but permission was granted following oral renewal by Vos LJ on 24 February 2015.
The origin of the case in 2012 concerns a planning enforcement notice served by King’s Lynn & West Norfolk Council on the Appellant, Ms Bunning for continued breaches of use of land. The Appellant was confirmed to have vacated the land by 12 July 2013 but her former partner, Mr Taylor, continued to live on the land despite knowing that this was in breach of the enforcement notice.
A notice for contempt proceedings was issued against both Ms Bunning and Mr Taylor on 19 July 2013 by King’s Lynn & West Norfolk Council. A first committal application was listed before Dingemans J on 12 September 2013. Ms Bunning did not attend in person “due to injuries and depression caused by domestic violence suffered following injuries caused by … Mr Taylor”. She acknowledged that she had not “acted with due haste” in dealing with the matter (she instructed a solicitor on 11 September 2013) as she had been “confused in relation to what is actually happening in this matter”. In the course of his evidence before Dingemens J, Mr Taylor explained that he had nowhere else to go and that he was subject to a Probation Order in relation to “fraud”. The Respondent council made clear that in relation to the Appellant, Ms Bunning, it sought only to find in contempt of court and would seek no further penalty in relation to her.
Following this hearing, the Appellant applied for legal aid. On 25 October 2013, Dingemans J directed that papers should be served on the Legal Aid Agency. The hearing took place before Blake J on 30 October 2013 and an Order granting legal representation in favour of the Appellant was granted.
Following an earlier adjournment, the case was heard by HHJ Ralls QC on 25 November 2013. He considered that whilst there was “Some prima facie evidence that Ms Bunning is in breach of the Court Order” that there would be little practical use to the respondent in making such a declaration since Ms Bunning had left the site and was unlikely to return given the breakdown in the parties' relationship such that “In the circumstances I can’t see any public interest for these proceedings to be continued, particularly in terms of the public expense.”
The Appellant’s solicitor subsequently appealed the costs decision by advancing two arguments. First, that the Appellant was the successful party and costs should follow the event and secondly that it was wrong in principle to pay regard to the fact that the Appellant was legally aided (and that an award of costs would be a transfer from one public fund to another).
The Respondent Council argued that it was too simplistic to say that the Appellant was a “successful” party as the matter had not been tried out. The Respondent Council also emphasised the wide discretion under CPR part 44.2(1)(a) as to whether costs should be paid by one party to another.
The claim was dismissed. LJ Kitchen concluded:
"In my judgment, HHJ Ralls QC did not fall into error in the order he made. The order was not wrong in principle. Insofar as he had a mind to the Appellant’s legally aided status, it seems to me that fact bore on the utility of continuing the proceedings. If he had tried all the issues to a conclusion, there is no indication that the Appellant’s legally-aided status would have affected in any way the costs order he then made, apart from compliance with relevant statute as to the form of the order and its enforcement, if adverse to the Appellant.
"I do not accept the submission that the Appellant was the “successful party”, in the rather simplistic way advanced. She had the outcome she desired, but if the matter had proceeded as it might, she was at real risk of being the losing party. The Respondent council had produced sufficient evidence to deal with the contested issue of service, and to establish knowledge of the order. Occupation of the premises during the relevant period was admitted.
"In those circumstances, I regard the judge’s order as a proper exercise of his undoubted discretion. For those reasons, I would dismiss the appeal."
LJ Irwin agreed.
Saira Kabir Sheikh QC is a barrister at Francis Taylor Building. She appeared for the Respondent, King’s Lynn and West Norfolk Council.