Ewing v Office of the Deputy Prime Minister & Anor

A person may be ordered to pay judicial review costs as a non-party where that person instigated and controlled the claim for their own purposes and was therefore a real party to the litigation. The ultimate question is whether an order is just in all the circumstances.

An application by a vexatious litigant under section 42 of the Supreme Court Act 1981 should be kept procedurally distinct from a concurrent judicial review claim unless leave is granted. At the permission stage, a summary of grounds should assist the court with the permission decision. It should not become a detailed merits argument or generate disproportionate expense.

A vexatious litigant, who required leave under section 42 of the Supreme Court Act 1981, placed himself on a judicial review claim form as a proposed claimant without first obtaining leave. Another claimant validly commenced the claim. The claim challenged four planning decisions concerning a proposed development in Weston-super-Mare.

Ouseley J heard the section 42 application together with the application for permission to seek judicial review. He refused both applications and ordered the two claimants jointly and severally to pay the Royal British Legion's costs of filing its acknowledgment of service: [2005] EWHC 825 (Admin).

The appeal was confined to whether the costs order could properly be made against the vexatious litigant, whether as a party to the judicial review or as a non-party.

1. The appeal was dismissed. The costs of the acknowledgment of service arose under the judicial review procedure, rather than from any direction made in the section 42 proceedings. Although section 51 of the Supreme Court Act 1981 could permit an award of the costs of resisting a section 42 application in an appropriate case, it did not provide the relevant basis for this award.

2. The award was nevertheless sustainable as an incident of the judicial review proceedings. It was unnecessary to decide whether the proceedings were technically a nullity as against the appellant or whether he was formally a party. Applying Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39, a non-party costs order may be made in an exceptional case where it is just in all the circumstances. A person who substantially controls proceedings or pursues them for personal purposes may be a real party to the litigation.

3. The appellant was the principal instigator of the judicial review and had used the competent claimant as the means of obtaining access to justice for his own purposes. He was directly responsible for launching the claim in its confusing form. Ouseley J was entitled to order him to pay the interested party's acknowledgment costs, whether he was characterised as a party or a non-party.

4. Guidance for future cases: a vexatious litigant should not be included on a judicial review claim form before obtaining section 42 leave. Concurrent section 42 and judicial review applications should ordinarily receive separate file numbers. The judicial review should initially be issued only in the competent claimant's name. If section 42 leave is granted, the vexatious litigant may then be added and exposed to costs under the Mount Cook principles.

5. The court stated, obiter, that sufficient interest may be important when determining a vexatious litigant's section 42 application. That procedure protects access to justice for genuine personal grievances; it does not enable a litigant to appoint himself a public champion.

6. A summary of grounds under CPR 54.8 should assist the permission decision, identify decisive procedural or substantive points and avoid substantial expense. It is distinct from the detailed grounds required after permission. Unnecessary elaboration by defendants or interested parties should not inflate recoverable costs or impede access to environmental justice.

1. Court of Appeal (Civil Division): The court unanimously dismissed the appeal against the costs order: [2005] EWCA Civ 1583.
2. Administrative Court: Ouseley J refused section 42 leave and permission to seek judicial review, and ordered the claimants jointly and severally to pay the Royal British Legion's acknowledgment costs: [2005] EWHC 825 (Admin).