Bolton Metropolitan District Council v Secretary of State for the Environment (Bolton Metropolitan District Council v Manchester Ship Canal Co, Bolton Metropolitan District Council v Trafford Park Development Corpn)

Costs remain within the court’s discretion. A longstanding practice must not harden into an inflexible rule. Where several parties are separately represented, the losing party will normally pay only one set of costs unless additional representation was justified.

A successful Secretary of State will ordinarily receive the whole of his costs. A developer will not ordinarily receive separate costs merely because it is the developer. It must show either a likely separate issue not covered by the Secretary of State or an interest requiring separate representation. Additional awards become less likely as issues crystallise on appeal, and a third set of costs will rarely be justified.

Bolton Metropolitan District Council and others v Secretary of State for the Environment and others comprised three linked planning causes in which the Secretary of State, Manchester Ship Canal Co and Trafford Park Development Corporation were appellants. At the conclusion of the hearing, the House invited written submissions on costs so that it could address multiple representation in planning appeals under section 288 of the Town and Country Planning Act 1990.

The Secretary of State, the developer and the development corporation had been separately represented. The central questions were whether the successful Secretary of State should receive his whole costs, whether the developer should receive a second set, and whether the development corporation should receive a third set.

1. Disposition. Lord Lloyd of Berwick delivered the leading speech. Lord Goff of Chieveley, Lord Mustill and Lord Slynn expressly agreed with his reasons. The Secretary of State was entitled to his whole costs. Manchester Ship Canal Co was also awarded its costs in the House and below. A third set for Trafford Park Development Corporation was refused, except to the extent allowed by Schiemann J at first instance.
2. General approach. Per Lord Lloyd, costs are always discretionary. A widespread or longstanding practice must not become an inflexible rule. The House will guard against unnecessary expense, and a losing party facing multiple representation will not normally be required to pay more than one set of costs unless further expenditure was justified.
3. Secretary of State and developer. A successful Secretary of State will normally receive the whole of his costs without apportionment. A developer will not normally obtain separate costs unless there was likely to be an issue not covered by counsel for the Secretary of State or the developer had an interest requiring separate representation. Developer status alone is insufficient.
4. Number and stage of awards. A second set is more likely at first instance than in an appellate court, because the issues and any separate interests should become clearer as the litigation progresses. A third set will rarely be justified.
5. Authorities. The concerns about excessive separate representation expressed in Birmingham City Council v H. (A Minor) [1994] 2 AC 212 applied equally although the present costs were not publicly funded. In Wychavon District Council v Secretary of State for the Environment (1994) 69 P. & C.R. 394, the Court of Appeal had correctly held that the Secretary of State should receive his whole costs. Lord Lloyd disagreed, however, with any suggestion that the Secretary’s award could be shared by apportionment. Leggatt LJ’s obiter guidance favouring one costs order where respondents advanced identical issues was subject to the possibility that a genuinely separate interest required protection.
6. Application. Although counsel for the Secretary of State could have covered every issue, the developer had a sufficiently independent interest. The Secretary had to defend wider government policy and remain capable of reconsidering the application, whereas the developer was concerned solely with the particular development. The development’s exceptional scale and importance, together with the unusual opposition mounted by neighbouring authorities and commercial interests, justified a second award. The developer and development corporation had effectively identical interests, so no further award was justified.

• House of Lords: In Bolton Metropolitan District Council and others v Secretary of State for the Environment and others [1995] UKHL 27, the House determined costs after receiving written submissions. It awarded the Secretary of State his whole costs, awarded the developer its costs in the House and below, and refused an additional set for the development corporation beyond the first-instance allowance.
• Court of Appeal: The litigation passed through the Court of Appeal, but the supplied opinions do not state its substantive order or citation.
• High Court: Schiemann J made a first-instance costs order in the developer’s favour after hearing submissions. He also allowed the development corporation a limited amount of costs. No citation is stated.