Davey v Aylesbury Vale District Council

Following a full judicial review hearing, an undifferentiated costs order in favour of a successful defendant includes reasonably incurred pre-permission preparation costs. It excludes the costs of opposing permission in open court, which are governed by separate principles.

The trial judge should consider expressly whether preparation costs should be recoverable. Their nature and purpose must be justified, and the public interest character of the claim may warrant a restricted order or no order. Costs ordinarily follow the event, however, and an unsuccessful claimant must justify any departure from that rule.

The appellant unsuccessfully challenged the grant of planning permission and listed building consent. Forbes J ordered him to pay 75% of the council’s costs, excluding the costs of the permission hearing. A dispute arose over whether that order included work undertaken before permission, beyond preparing the acknowledgment of service and grounds of opposition.

Master Campbell held that reasonably incurred pre-permission preparation costs were included. Wyn Williams J dismissed an appeal from that ruling. On a second appeal, the Court of Appeal considered the prima facie effect of an undifferentiated costs order made for a successful defendant after a full judicial review hearing.

Appeal dismissed unanimously.

1. Per Sedley LJ, an undifferentiated order awarding a successful defendant its costs after a full judicial review hearing includes reasonably incurred pre-permission preparation costs. It does not include the costs of opposing permission in open court, which remain governed by the principles applicable to permission hearings.

2. The court must calibrate its costs order to the nature, conduct and outcome of the claim. A claim brought partly or wholly in the public interest may properly attract a restricted order or no order, unlike a claim pursued wholly or mainly for commercial or proprietary reasons. Where costs are awarded, the judge should decide expressly whether preparation costs are included, and the defendant must justify them.

3. The permission stage is intended to identify an arguable claim without a full exploration of evidence and argument. A public authority should ordinarily need to do little additional work before completing its acknowledgment of service and concise grounds of opposition. Extensive preparation at that stage should be exceptional.

4. Questions concerning the recoverable categories of costs should be determined by the trial judge. The costs judge should ordinarily be left to assess whether individual items were reasonably and proportionately incurred.

5. Sir Anthony Clarke MR agreed. Under section 51(1) of the Supreme Court Act 1981, “the costs of the claim” encompassed costs of and incidental to the claim, including pre-issue costs. Under rule 44.4(1) and (2) of the Civil Procedure Rules 1998, each item remained subject to the requirements of reasonableness and proportionality.

6. The Master of the Rolls added that costs ordinarily follow the event in public law proceedings. The unsuccessful claimant bears the burden of showing why the circumstances justify a different order. The council’s recoverable preparation costs were therefore within Forbes J’s order, subject to detailed assessment.

1. Court of Appeal (Civil Division): The second appeal was dismissed unanimously. The court held that Forbes J’s undifferentiated order included reasonably incurred pre-permission preparation costs.
2. High Court, Queen’s Bench Division: Wyn Williams J dismissed the appeal from Master Campbell and held that the natural meaning of Forbes J’s order included pre-permission costs.
3. Costs assessment: Master Campbell ruled that the council could recover reasonably incurred pre-permission costs beyond the acknowledgment of service and grounds of opposition.
4. Substantive judicial review: Forbes J dismissed the claim and ordered the claimant to pay 75% of the council’s costs, excluding the costs of the permission hearing.