CPRE Kent’s challenge to a local plan stopped at the permission stage. More than one party had already incurred costs responding. The Supreme Court considered whether each could ordinarily recover reasonable costs of taking the procedural step required to participate.
CPRE Kent, a charity seeking to protect the Kent countryside, applied for statutory review under section 113 of the Planning and Compulsory Purchase Act 2004. It challenged Maidstone Borough Council’s adoption on 25 October 2017 of Policy EMP1(4) in its local plan for 2011 to 2031. That policy allocated a 16.8 hectare site at Woodcut Farm, owned by Roxhill Developments Ltd, for up to 49,000 square metres of mixed employment floorspace. An inspector appointed by the Secretary of State had found the plan sound, directed that it be adopted subject to main modifications, and upheld the policy.
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Lang J accepted that the claim fell within the Aarhus Convention, giving CPRE Kent a £10,000 cap on adverse costs. Although CPRE Kent had intended to proceed against the Council and Roxhill, Administrative Court staff advised that the claim form be amended. The Secretary of State was named as first defendant, the Council as second defendant, and Roxhill as an interested party. Each filed an acknowledgement of service and summary grounds inviting the court to refuse permission. On 31 January 2018 Lang J refused permission and awarded £2,879 to the Secretary of State, £5,245.50 to the Council and £1,875.50 to Roxhill, exhausting the cap. CPRE Kent did not renew the review application but challenged the costs orders. HHJ Evans-Gordon affirmed them. She held that a defendant or interested party should generally recover the costs of an acknowledgement of service, because filing was necessary if that party wished to participate and contest the claim, and because failure to file could have costs consequences.
The Court of Appeal’s approach
The Court of Appeal dismissed the appeal. Coulson LJ, giving the leading judgment, started from the ordinary position that a claimant whose claim is refused at an early stage is prima facie liable for the other parties’ reasonable and proportionate costs. He held that judicial and statutory review claimants are not subject to a different rule. A claimant may therefore be liable to more than one defendant or interested party for the costs of preparing and filing an acknowledgement of service and summary grounds. Exceptional or special circumstances need not be shown. The costs must still be reasonable and proportionate. If there is an obvious lead defendant and the court is not assisted by another party’s documents, that other party’s costs may not be recoverable. The assessment is case-specific.
Why the Supreme Court found no error of law
CPRE Kent relied on the House of Lords’ practice note in Bolton Metropolitan District Council v Secretary of State for the Environment. After a substantive planning appeal, Lord Lloyd of Berwick said that, where there is multiple representation, the losing party will not normally pay more than one set of costs. He also stressed that costs remain discretionary and that a practice must never harden into a rule. CPRE Kent argued that the permission stage should be treated in the same way and that several costs awards could impede access to justice.
Lord Hodge, with whom Lord Reed, Lord Lloyd-Jones, Lord Leggatt and Lord Burrows agreed, treated the appeal as one about costs practice rather than a reassessment of the particular awards. The High Court and Court of Appeal have a statutory discretion over costs, exercised within the Civil Procedure Rules and practice directions. As explained in R (Gourlay) v Parole Board, the Court of Appeal has the principal responsibility for developing that practice. The Supreme Court intervenes in a costs-only appeal only where an error of law is established.
Bolton concerned costs after a substantive hearing and predated the acknowledgement-of-service procedure. Under CPR rules 54.8 and 54.9, and the corresponding provisions of Practice Direction 8C, a person served with the claim who wishes to take part must file an acknowledgement of service and, if contesting the claim, summary grounds. Without that filing, the person may not take part in the permission hearing unless the court allows it. Even if the person later participates in a substantive hearing, the failure may be taken into account in costs. Since In re Leach and the Court of Appeal’s decision in Mount Cook, the courts have treated compliance with that obligation as generally justifying recovery of the costs of the acknowledgement of service by a party who successfully resists permission. Mount Cook distinguished those preparation costs from the costs of attending an oral permission hearing, which are not generally awarded. Later authority applied the same approach to interested parties.
There was therefore no error of law in qualifying the Bolton guidance for this procedural stage. Filing is mandatory for a person who wants the opportunity to defeat the claim when permission is considered. The rules do not exclude the costs of preparing the acknowledgement of service, and the practice direction’s general restraint concerns attendance at the oral hearing rather than preparation of that document. Proportionality and the usefulness of each set of grounds remain relevant, but those are case-specific questions. The Supreme Court was not reviewing whether more than one award was proportionate on these facts. Wider concerns about uncertainty and access to justice were policy matters for the Civil Procedure Rule Committee, a practice direction, or a future review by the Court of Appeal.
Verdict: The Supreme Court unanimously dismissed the appeal. Each defendant or interested party could in principle recover reasonable and proportionate costs for its acknowledgement of service and summary grounds where permission was refused. The Court did not assess whether each sum awarded here was proportionate.
Source: CPRE Kent v Secretary of State for Communities and Local Government [2021] UKSC 36
