Payne v Caerphilly County Borough Council

At a renewed judicial review permission hearing, the court should generally make no order requiring the claimant to pay the defendant’s attendance costs. Departure from paragraphs 8.5 and 8.6 of the Practice Direction to CPR Part 54 requires exceptional circumstances. Costs of filing an acknowledgment of service may be recoverable where the applicable guidance permits, but the claim must be specifically identified and quantified. Where the lower court applied the wrong costs test, the appellate court must exercise the discretion afresh. Separate considerations apply to permission-to-appeal applications under CPR Part 52.

Mr Clive Payne sought permission to bring judicial review proceedings concerning planning permission for a change of use to a waste transfer station and materials recycling facility. A Deputy High Court Judge refused the renewed application, finding that none of the six grounds was arguable, and ordered Mr Payne to pay the Council’s costs.

The appeal was limited to costs. The Council had attended the renewed permission hearing through counsel but did not appear on the appeal. The issues were whether the Judge had applied the correct approach under the Practice Direction to CPR Part 54 and whether the costs should have been summarily or detailed assessed.

1. Appeal allowed. The costs order against Mr Payne was quashed. The Court of Appeal ordered £400 to be paid to him in respect of the appeal costs.
2. Paragraphs 8.5 and 8.6 of the Practice Direction to CPR Part 54 establish the general approach at a renewed judicial review permission hearing. A defendant or interested party need not attend unless directed. Where it attends, the court will not generally make an order for costs against the claimant.
3. The general approach may be displaced only in exceptional circumstances. The defendant’s entitlement to attend, attendance through counsel, and successful resistance of the application do not, without more, justify recovery of attendance costs.
4. Lord Justice Pill applied the guidance in Mount Cook Land Ltd and Mount Eden Land Ltd v Westminster City Council [2003] EWCA Civ 1346. The Council did not contend that exceptional circumstances existed, and none was present. The costs discretion therefore had to be exercised afresh, with no order for the Council’s attendance costs.
5. The Council appeared to have supplied an acknowledgment of service and might have been entitled to recover the costs of doing so under paragraph 76(1) of the guidance in Mount Cook. It had not specifically claimed or quantified that component, so no allowance was made.
6. Lord Justice Dyson added that Mr Payne should have been invited to address the mode of assessment. The hearing lasted less than one day and no feature justified detailed assessment under the general rule in the Guide to the Summary Assessment of Costs 2002 edition. The considerations governing permission-to-appeal applications under CPR Part 52 are distinct from those governing judicial review permission applications under CPR Part 54.

• Court of Appeal (Civil Division): [2004] EWCA Civ 433. The appeal on costs was allowed. The Deputy High Court Judge’s costs order was quashed, and £400 was ordered to be paid to the claimant.
• High Court, Queen’s Bench Division: the Deputy High Court Judge refused the renewed application for permission to seek judicial review and ordered the claimant to pay the defendant’s costs.