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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Segar & Anor, R (on the application of) v Wychavon District Council [2015] EWHC 1417 (Admin) (05 March 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1417.html Cite as: [2015] EWHC 1417 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		5 March 2015

1. JUDGE SYCAMORE: The matter on which I am about to rule arises from judicial review proceedings in respect of which permission was granted by Rhodri Price Lewis QC, sitting as a Deputy High Court Judge, on 18 November 2014. The proceedings have now been settled and I have already approved a draft order, subject to hearing argument today on the issue of costs, in respect of which I now rule. It is fair to say that the claimants have been broadly successful in obtaining the relief that they set out to achieve.
2. In essence, these proceedings arise from a complaint that the defendant Local Authority had not properly exercised its discretionary powers under section 173(a)(1) of the Town and Country Planning Act 1990 or to waive or relax its requirements in circumstances when it became apparent in 2014 that gates and pillars at the claimant's property specified in an enforcement notice served in 2008 had already become immune from enforcement action before the issue of that notice, which was dated 6 March 2008. The immunity arose because the gates and pillars had been constructed as long ago as 2002.
3. I am told that the parties have sought to reach agreement in respect of costs and I am aware that the defendants have made an offer in respect of a proportionate of costs which they were prepared to offer to avoid the need for this hearing today.
4. I have been taken through the history of the matter in some detail and I have read skeleton arguments from both parties. In essence, what the claimants say is that the case falls squarely within the principles set out in the well-known case of M v London Borough of Croydon [2012] EWCA Civ 595 and that they, having obtained the relief they have sought, are entitled to all of their costs.
5. The defendants say that the circumstances of the case justify a departure from the starting point that a claimant is entitled to all of his or her costs and although they recognise that they had made an offer in respect of costs, they ask me to approach the matter on the basis that the proper order is one of no costs.
6. Two matters, it seems to me, are relevant in my approach to deciding whether, taking a broad view of the case, it is appropriate to allow the claimants the entirety of their costs. I am not persuaded that this is case in which it is inappropriate for there to be any order for costs but it seems to me that the history of the case is such that I need to consider carefully the extent to which I exercise my discretion and, as in all cases of this nature, the court has to take a broad view.
7. It is the case that the pre-action protocol letter gave the defendants only 3 days to comply. What the claimants say is that that was against a background of lengthy correspondence going back some months: the pre-action letter was 11 August 2014, correspondence had begun earlier that year in March, and by 30 April 2014, in a letter to the defendants, the claimants were making it clear that they were considering the issue of proceedings for judicial review.
8. Whilst there is no rule which requires a specific period, most often 14 days, for compliance with a pre-action protocol letter, and each case depends upon its own circumstances, it is generally good practice to allow a sensible period of time, which in many cases is one of 14 days. It has been observed that the claimants were involved in lengthy correspondence, it sought the advice of leading counsel and their solicitors, but yet they did leave, on their interpretation of the time for issuing, in the light of a possible date of decision letter, themselves with very little time and in turn allowed the defendants little time to respond, some 3 days. It seems to me, having listened to the careful analysis of the correspondence, that there was actually no good reason for that pre-action protocol letter to have not been issued earlier.
9. The defendants have made it clear that they were not prepared to accept the assertions of the claimants at face value but recognised that their view of the case changed after the service of a statement from a builder who was involved in the work at the defendant's house. That is a statement of Mr Eccleston, dated 15 August 2014, which was served after the issue of proceedings but before the grounds of permission.
10. I have some sympathy with the view expressed, that they were reluctant to accept the assertions from the claimants at face value without independent evidence, and it has not been explained satisfactorily why that independent evidence could not have been obtained and produced earlier. On the claimant's own account, in the detailed grounds which accompanied the claim form, they recognised that the defendant would be able to say that the claimants had been in breach of planning control and that there had been grievances on both sides and that the claimants had made promises and given assurances to various people that had not been kept. So one can understand why, absent independent evidence, there was some reluctance on the part of the defendants to accept everything at face value.
11. Against that, the defendants did not concede matters in respect of which the claimants sought relief until some time after the service of that evidence. But those, to me, having listened to the submissions this morning, appear to be the most significant factors in the history of this case which require me, having formed a view that the claimants are entitled to their costs, to consider whether it is appropriate to exercise my discretion and limit those costs to a percentage.
12. In all of the circumstances, taking a broad view of the case, to which I have already made reference, it seems to me the appropriate outcome is that the defendant pays 75 per cent of the claimant's costs; those costs, as I have already indicated during the course of the morning, to be subject to a detailed assessment.
13. MISS STADDON: My Lord, I am very grateful. We then have the costs of today.
14. JUDGE SYCAMORE: I think all matters can be dealt with in the detailed assessment.
15. MISS STADDON: 75 per cent of all costs, including today. Then I suppose it is just payment on account then. The claimants seek payment on account. The sums involved are, at the beginning of February, £65,000, there is an additional £17,000 now, so one usually asks the judge to assess not just a minimum but what we are likely to receive, which is very difficult, obviously, without any supporting material but we would say a good £50,000 on account.
16. JUDGE SYCAMORE: What do you say about that application, Miss Clover?
17. MISS CLOVER: My Lord, I briefly indicated at the outset that the Council's view of what reasonable costs are and the claimant's view of what costs are are very, very different here. The Council had previously made an offer to contribute -- may I just briefly take instructions. My Lord, the Council's view on what is likely at the outcome of this detailed assessment is very different from that of the claimants. By contrast, I can indicate that the Council's costs, including today, run to no more than £10,000. Might I make an offer of £20,000 in the circumstances, please?
18. JUDGE SYCAMORE: That seems to me to be a sensible approach at this stage in the proceedings without sight of the detailed bill.
19. MISS STADDON: This is a year's litigation, my Lord, that is just what I would say, a year's High Court litigation. £20,000 on account --
20. JUDGE SYCAMORE: There is not a copy of the detailed bill before the court.
21. MISS STADDON: That is true.
22. JUDGE SYCAMORE: I think it is unwise for a judge hearing a matter to speculate as to what that bill might disclose.
23. MISS STADDON: So shall we say 14 days?
24. JUDGE SYCAMORE: I am minded to order in the terms of the offer made by Miss Clover: payment on account in the sum of £20,000.
25. MISS STADDON: Within 14 days, my Lord?
26. JUDGE SYCAMORE: Are you content with 14 days?
27. MISS CLOVER: My Lord, yes, I am grateful.
28. MISS STADDON: Shall we therefore revise the draft order?
29. JUDGE SYCAMORE: Just one thing at a time. So payment on account to be made within 14 days of today. Would you like to perfect the order and email it across this afternoon?
30. MISS STADDON: Might I just say, we have not said VAT, net of VAT, so plus VAT. We have been talking between ourselves about net figures.
31. MISS CLOVER: Yes, I am content with that.
32. JUDGE SYCAMORE: Very well.
33. MISS STADDON: My Lord, I am grateful.
34. JUDGE SYCAMORE: If you would like to incorporate that into the final paragraph of the order.
35. MISS STADDON: So there will not be any adjournment of costs issues, it will just be a costs determination.
36. JUDGE SYCAMORE: You will take out the final paragraph and simply direct the order I have made: 75 per cent of the costs and the detailed assessment.
37. MISS STADDON: It should still say, obviously, that there be no underpaying(?) but the costs as your Lordship has directed.
38. JUDGE SYCAMORE: Indeed, yes. I am here all day, so if you could email that across during the course of the afternoon I can approve the order for you.