Secretary of State for the Environment, Transport and the Regions v Baylis (Gloucester) Ltd & Ors

A person who participates in proceedings, although not formally a party to the relevant application, may become exposed to a costs order if the person opposes the relief sought, is separately represented and makes submissions on the issue. The court may exercise its discretion under section 51 of the Supreme Court Act 1981 where it is just to do so. The fact that another party initiated the proceedings or that only part of the costs was caused by the person’s participation does not prevent the order. The court must assess the practical reality of the person’s involvement rather than apply the ordinary approach to an uninvolved non-party.

Baylis (Gloucester) Ltd sued Bennett Construction (UK) Ltd concerning whether land sold in 1964 formed part of the public highway. Bennett joined Tewkesbury Borough Council as a Part 20 defendant. The Secretary of State subsequently brought separate proceedings concerning the same issue, which were directed to be heard with the preliminary issue in the Baylis action.

Tewkesbury attended the directions hearing and the substantive hearing, was separately represented, opposed the Secretary of State’s case and made submissions. The Deputy Judge found for the Secretary of State and ordered Tewkesbury to pay the Secretary of State’s costs. Tewkesbury renewed its application for permission to appeal, challenging the costs order.

1. Application dismissed. The proposed appeal had no real prospect of success.
2. The Deputy Judge was entitled to treat Tewkesbury as materially different from an uninvolved non-party. Tewkesbury had attended the directions hearing, did not object to the proceedings being heard together, appeared separately at the substantive hearing and opposed the Secretary of State’s relief through counsel.
3. Once the Master directed the proceedings to be heard together, Tewkesbury was exposed to the risk of a costs order if it elected to participate on its own account. It remained open to Tewkesbury and Bennett to agree joint representation.
4. The principles concerning costs orders against non-parties in Symphony Group v Hodgson [1994] QB 179 and Globe Equities Ltd v Globe Legal Services Ltd were not inconsistent with that conclusion. Their ordinary application to a person who takes no part in the hearing did not govern Tewkesbury’s materially different involvement.
5. The fact that the Secretary of State had chosen to participate in the proceedings did not prevent a costs order. Nor did the argument that only part of the Secretary of State’s costs was caused by Tewkesbury’s participation. In the circumstances, it was within the Deputy Judge’s discretion to order Tewkesbury to pay the Secretary of State’s costs on the standard basis and to leave the disclosure costs within the order.
6. The procedural argument under Part 48.2 of the Civil Procedure Rules 1998 was not pursued. The renewed application for permission to appeal was dismissed.

• High Court, Chancery Division: On 14 April 2000, Mr Kim Lewison QC, sitting as a Deputy Judge, joined Tewkesbury Borough Council as a defendant and ordered it to pay the Secretary of State’s costs.
• Court of Appeal (Civil Division): Permission to appeal was refused on the papers on 6 November 2000. The renewed application was dismissed under [2000] EWCA Civ 361.