Gavin, R (on the application of) v Haringey & Anor

In deciding costs, the court must apply Civil Procedure Rules 1998 Rule 44.3 and assess the whole circumstances. The general rule that the unsuccessful party pays remains relevant, but the court may make no order where the claimant achieved important declaratory relief yet failed on the principal remedy. Relevant considerations include partial success, party conduct, the seriousness of unlawful conduct, and the justice of the case overall. A claimant who reasonably brought proceedings to establish serious breaches may properly avoid liability for an interested party’s costs, particularly where that party’s own unlawful conduct contributed to the discretionary refusal of relief. Earlier costs directions must be interpreted consistently with the final overall costs order.

The claimant challenged a local authority’s handling of planning matters and sought to quash planning permission. The substantive judgment found breaches of notification and environmental impact assessment requirements, but withheld quashing relief because of delay, hardship or prejudice, and detriment to good administration. The claimant therefore obtained declaratory relief but not the principal remedy.

This judgment determined costs between the claimant, the defendant authority and the interested party. It also considered the effect of an earlier permission-stage costs order and preserved a separate order concerning the costs of a stay application.

1. The court directed itself by Civil Procedure Rules 1998 Rule 44.3. Although the unsuccessful party will generally pay the successful party’s costs, the court must consider all the circumstances, including conduct, partial success and the overall justice of the case.
2. The claimant’s success was partial. He obtained declaratory relief recording serious breaches by the authority, but lost on the issue of withholding the principal remedy. The fair order between claimant and authority was therefore no order as to costs, rather than costs payable by either side.
3. The claimant was reasonably entitled to bring and pursue the claim because the authority’s serious breaches were not initially accepted and were established only through admissions or concessions. The claim’s pursuit through permission and the substantive hearing was justified.
4. No order was made for the interested party’s costs. Its representation was appropriate, but it had acted unlawfully by breaching planning-permission preconditions. That conduct was relevant both to the discretionary relief decision and to the costs assessment. The court also considered the authority’s serious breaches and the overall justice of the case.
5. The earlier permission-stage order was read as awarding costs to the claimant only if successful overall. Since the final order was no order as to costs, that order did not produce a separate costs entitlement. The prior order requiring the defendant to pay the claimant’s costs of the stay application remained unaffected.
6. Permission to appeal was refused. The decision involved an exercise of discretion and there was no real prospect of a successful appeal. The court did not decide the alternative notification issue under Article 8(4), having expressed views but concluded that determination was unnecessary.

Not an appeal. The judgment determined costs following the court’s earlier substantive judicial-review judgment and referred to earlier permission and stay-application orders.