Davey v Aylesbury Vale District Council

In judicial review proceedings, an order that an unsuccessful claimant pay the defendant’s costs may include reasonably incurred costs incurred before permission was granted, unless the order expressly excludes them. The special approach to costs at the permission stage does not automatically govern costs after permission has been granted and the claim has proceeded to a substantive hearing. The meaning of a costs order must be determined from its wording, read in its procedural and statutory context and against the authorities existing when it was made. An exclusion of permission-hearing costs does not, without more, exclude other pre-permission costs.

The claimant sought judicial review of planning permission and listed building consent granted by the defendant. Forbes J dismissed the claim and ordered the claimant to pay 75% of the defendant’s costs, excluding the costs of the permission hearing. The parties could not agree the bill of costs.

On taxation, Master Campbell held that the order included reasonably incurred costs before permission was granted, subject to the exclusion of the permission hearing itself. The claimant appealed, contending that only the costs of preparing the acknowledgement of service and grounds of opposition were recoverable before permission. The central issue was the proper interpretation of Forbes J’s costs order.

1. Appeal dismissed. The Master had correctly interpreted Forbes J’s order as requiring payment of 75% of the defendant’s reasonably incurred costs, including pre-permission costs, but excluding the costs of the permission hearing.
2. The task was to construe the order according to the meaning normally attributed to its words when it was made. That required consideration of the wording, Section 51 of the Supreme Court Act, the relevant Civil Procedure Rules, the applicable Practice Direction and the authorities then existing.
3. Leach [2001] EWHC Admin 455 and R (Mount Cook) v Westminster CC [2003] EWCA Civ 1346 concerned awards to defendants who successfully resisted permission. They did not expressly determine whether pre-permission costs were recoverable after permission had been granted and the claim had proceeded to a substantive hearing.
4. Young and R (Thurman and Earle) v LB Lewisham indicated that experienced Administrative Court judges considered such pre-permission costs recoverable after an unsuccessful substantive claim. The court rejected the suggestion that the observations in Thurman and Earle were limited to acknowledgement-of-service costs.
5. Policy arguments concerning the appropriate general costs regime were not determinative. The appeal concerned the meaning of Forbes J’s order, and the relevant arguments had not been made to him. The later determination in Tinn and Mardlin could not assist because it was made in a different procedural and evidential context.
6. A witness statement from the claimant’s solicitor was inadmissible because the requirements identified in Ladd v Marshall could not be satisfied, and it played no part in the reasoning.

• High Court (Queen’s Bench Division): appeal from Master Campbell’s taxation ruling dismissed. The Master’s interpretation of the costs order was upheld.
• High Court: Forbes J had dismissed the substantive judicial review claim and ordered the claimant to pay 75% of the defendant’s costs, excluding the costs of the permission hearing.