Interested Party In Judicial Review Pays The Price For Unreasonable Resistance To Consent Order

Kirklees Council v Secretary of State for Transport (Re Costs) involved an application for costs following a judgment in a judicial review brought by Kirklees Council against the Secretary of State for Transport and two interested parties, Lovell Partnerships (LP) and Upper Dearne Valley Environmental Trust.

Relevant Background

• Kirklees Council brought a claim for judicial review against the Secretary of State challenging a decision to grant planning permission for a road scheme.
• LP and the Trust were interested parties in the proceedings as they had an interest in the outcome.
• The Secretary of State conceded the claim and agreed to quash the planning permission. The parties prepared draft consent orders to put into effect the agreement to quash the permission.
• However, LP declined to sign the draft consent orders. This led to a court hearing to consider making the orders.
• At the hearing, the judge quashed the planning permission with immediate effect.
• The Council and Secretary of State then applied for LP to pay their costs of the hearing.

Issues

Whether LP should pay the costs of the Council and Secretary of State for the court hearing.

The judge gave a provisional view that LP should pay the costs given their refusal to agree to the consent order necessitated the hearing, stating:

“…today’s hearing has been solely necessitated by the position adopted by LP, in declining to sign the draft Consent Orders and declining to communicate that the quashing order, to take immediate effect, was agreed and not opposed. My provisional view is that it is entirely unsurprising, and entirely predictable, that the Council and the Secretary of State should now make the applications for costs that have been made. My provisional starting point is that there is a powerful case in support of such orders.”

However, the judge was concerned no clear warning had been given to LP they could face a costs order if they maintained their refusal.

“I am also – and again provisionally – somewhat surprised to find that neither the Council nor the Secretary of State have considered it appropriate to have given a clear and open warning to LP of these potential costs applications. This would have necessitated nothing more than a letter or an email. Had there been such a warning, the position today, so far as today’s costs are concerned, would in my judgment have been irresistible: I would now be making two costs orders without hesitation, in circumstances where LP had continued to resist the order being sought, notwithstanding clear costs warnings.”

The judge invited submissions, leading to this decision.

The Council’s Position

The Council submitted that:

• LP should pay its costs because it was LP’s refusal to sign the consent order that necessitated the costs being incurred for the court hearing.
• A costs order against LP was justified and proportionate given that LP had no good reason for resisting the order to quash the planning permission, which had been agreed between the Council and Secretary of State.
• LP understood that its resistance would drain resources for the parties, but proceeded to resist anyway.
• LP was entitled to require a judge to consider the order, but had no proper basis on which to actually resist the order itself.
• LP’s stance that it required 2 years before the quashing of the planning permission took effect was completely baseless.
• Despite having no good reason, LP proceeded to take points resisting the order agreed between the main parties to the proceedings.
• In light of the above, an order for LP to pay its costs was justified, appropriate and proportionate in this case.

The Scretary of State’s Position

On behalf of the Secretary of State it was submitted that:

• LP should pay its costs because it was only their resistance that led to the hearing being required.
• No warning was needed as LP’s position had only crystallised late.

LP’s Position

LP submitted that:

• The Council and Secretary of State acted “unprofessionally, unlawfully and untruthfully”
• It had good reason for refusing to sign the order given the alleged untruthfulness by the Council.

Decision

The Judge, Mr Justice Fordham, was unpersuaded by LP’s submissions.

“These submissions have done nothing to persuade me not to take the course for which I said there was a prima facie case… LP clearly perfectly well understood that resistance of the order drained resources for parties to the proceedings. But that was LP’s “resistance”. And “resources” drained in consequence were those of the Council and the Secretary of State.

I have already ruled that LP identified no good reason to resist the order agreed by the principal parties. LP was a party to the proceedings. They had procedural entitlements. But they also had responsibilities and ran risks. LP was perfectly entitled to insist that a Judge be persuaded to make the Order. LP was perfectly entitled to identify any reason why the Court should not make the Order. Ultimately, a position was taken by LP.

It was that LP wanted a full 2 year period before any quashing took effect… LP advanced that argument and it was the subject of an adverse ruling… The position taken was baseless. I still think … that clear and open warning letters, which could then be showed to the Court, ought to have been written. The failure to do so meant that the costs orders sought were not immediate. But LP had their eyes wide open and took points, at the outset and then in the run up to the hearing, which were no proper basis at all for resisting the Order.

I am satisfied that ordering costs – and ordering two sets of costs – is justified, appropriate and proportionate. The Council’s costs schedule records the costs of the hearing as £4,628.40 and the Secretary of State’s equivalent schedule is in the sum of £1,006.67. I have adopted a modest broad-brush reduction, reflecting the fact that I am not ordering costs on an indemnity basis.

“My Order, made and circulated to the parties on 10 November 2023, is that LP shall within 28 days pay the Council’s costs summarily assessed at £4,000 and the Secretary of State’s costs summarily assessed at £850.”