BT3G Ltd & Ors, R (on the application of) v Secretary Of State For Trade & Industry

Costs remain in the discretion of the court. In multi-party litigation, a losing party will not ordinarily be required to pay more than one set of costs unless the circumstances justify additional representation.

An interested party or intervenor may obtain costs where a separate issue required its participation or where it had an interest requiring separate representation. The court must examine the substance of that interest. A commercial interest in preventing competitors from obtaining a financial benefit is insufficient by itself. An order that costs be in the appeal ordinarily leaves recovery of the relevant costs to follow the result, subject to the appellate court’s discretion.

The Court of Appeal was dealing with Vodafone’s applications concerning costs. Vodafone had been permitted to appear on the appeal after Master Venne held that it was entitled to appear as of right; Laws LJ expressed a different view but allowed Vodafone to participate in the exercise of his discretion.

The applications concerned whether Vodafone should recover the costs of the hearing before Laws LJ and its costs of participating in the appeal. The central issues were the effect of an order that costs be in the appeal and whether Vodafone’s separate commercial and potential remedial interests justified a separate award of costs.

1. Disposition. Vodafone was awarded its costs before Laws LJ. Its applications for the costs of the appeal were dismissed.
2. An order that costs be in the appeal ordinarily means that the costs of the earlier hearing follow the result of the appeal. If the successful party does not recover the appeal costs, that does not prevent recovery of the costs below. In any event, the appellate court retains discretion to make the appropriate order.
3. The court applied the approach in Bolton Metropolitan District Council v Secretary of State of the Environment [1995] 1 WLR 1176. There are no inflexible rules governing costs. In multi-party litigation, the losing party will not normally pay more than one set of costs unless additional representation is justified.
4. An interested party may justify separate representation where there is a separate issue on which it is entitled to be heard, or where it has an interest requiring separate representation. The same substantive approach applies to intervenors.
5. Vodafone’s possible exposure to a compensatory payment, if the appeal succeeded and further relief were ordered, could justify its participation at a later relief hearing. Its broader commercial interest in resisting a result which might benefit competitors did not justify an award of appeal costs.

• Court of Appeal (Civil Division): The court dealt with Vodafone’s costs applications arising in an appeal from the Administrative Court. The supplied judgment contains no citation for the Administrative Court’s decision.