Davies v Agricultural Land Tribunal (Wales) & Ors

When deciding whether to award a second set of costs to an interested party in a statutory appeal, the court must exercise its discretion having regard to all the circumstances. Reluctance to award duplicate costs, particularly where parties advance the same arguments, is guidance only and must not become a rigid rule. Relevant matters may include separate issues or interests, the stage at which issues crystallise, and reasonable costs incurred before the party knows the case it must meet. Some costs may be appropriate even where a complete second set is not.

The Agricultural Land Tribunal granted a certificate of bad husbandry affecting the effectiveness of a notice to quit served on Davies. Davies applied under CPR 23 for an order requiring the tribunal to refer questions of law to the High Court. The application was dismissed by Sullivan J on 17 May 2007. The tribunal received its costs, while the interested landlords, the Philipps, received none.

The Court of Appeal considered Davies’s application for permission to appeal against the costs order. The central issue was whether the usual reluctance to award two sets of costs had been applied as a rigid rule, without sufficient consideration of the particular circumstances and the possibility of awarding some costs to the Philipps.

Application granted; permission to appeal granted. Waller LJ gave the judgment, with which Keene LJ agreed.

1. The principles in Bolton v Secretary of State for the Environment [1999] 1 WLR 1176 confirm that costs remain in the court’s discretion. A widespread practice must not harden into a rule. The normal reluctance to award two sets of costs where parties advance the same basic arguments therefore requires consideration of the individual circumstances.
2. Normally, a party will not receive a second set of costs merely because it has a separate status, such as that of developer or landlord. A second set may nevertheless be justified where there is a separate issue, an interest requiring separate representation, or costs reasonably incurred before the issues have crystallised. A second set is more readily considered at first instance than on appeal, and a third set will rarely be justified.
3. There was an arguable concern that Sullivan J had treated the normal approach as more nearly a rule than the discretion required. The Philipps had a serious interest in the proceedings. Their representatives had to consider the tribunal’s position, prepared written submissions, and kept counsel available in case the tribunal’s representative could not attend. It was therefore arguable that some costs, particularly costs incurred before the issues were identified, might properly be allowed even if a full second set was not.
4. Keene LJ agreed that the reluctance to award duplicate costs must not inhibit proper consideration of all the circumstances. He also recognised that some costs might be awarded for an earlier stage, while emphasising the risk and potential proportionality of pursuing the matter to a full appeal.
5. The substantive costs appeal was left for determination by the full court. The present order granted permission to appeal.

• Court of Appeal (Civil Division): On 15 October 2007, the application for permission to appeal was granted.
• High Court, Queen’s Bench Division: Sullivan J dismissed Davies’s application on 17 May 2007 and made the costs order challenged by the proposed appeal.