Eley, R (on the application of) v Secretary of State for Communities & Local Government

A protective costs order is governed by underlying principles, but those principles are not statutory rules. General public importance is a broad, fact-sensitive question of degree. The court must consider all the circumstances, balancing the issues’ position on the public-importance spectrum against the claimant’s interest. Personal interest is a factor, not an automatic bar. First-instance judges decide where a case lies on that spectrum. An appellate challenge based only on alleged factual error is unsuitable unless there is a real prospect of demonstrating an error of principle. Challenges to protective costs order reasoning should ordinarily be raised by a short inter partes oral hearing at first instance, to avoid disproportionate satellite litigation.

The claimant challenged a planning proposal under section 288 of the Town and Country Planning Act 1990 and sought a protective costs order. Collins J granted an order capping her liability at £3,500. The Secretary of State renewed an application for permission to appeal after permission had been refused on paper. The central issues were whether Collins J had applied the protective costs order criteria wrongly, whether his assessment of public importance and personal interest disclosed an error of principle, and whether the matter should first have been raised at an oral inter partes hearing.

1. Disposition. Sir Anthony Clarke MR refused the renewed application for permission to appeal. Waller LJ agreed.
2. Protective costs order principles. The principles stated in R (Corner House Research) v Secretary of State for Trade & Industry [2005] 1 WLR 2600, as considered in R (Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749 and R (Buglife – The Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corpn [2008] EWCA Civ 1209, remained valid, subject to those later comments. They were underlying principles, not statutory provisions.
3. Public importance and personal interest. General public importance was a broad question of degree. Whether the public-interest requirements were met required consideration of all the circumstances, including the position of the issues on the public-importance spectrum and the nature and extent of the claimant’s personal interest. Personal interest did not automatically prevent a protective costs order; it was one factor in the overall assessment.
4. Appellate intervention. The location of a case on the spectrum was primarily for the first-instance judge. A challenge founded on the judge being plainly wrong on the facts was not appropriate for the Court of Appeal unless there was a real prospect of showing that the wrong legal principle had been applied. No such prospect was demonstrated.
5. Procedure and costs. The procedure summarised in Buglife should be followed. A party wishing to challenge the reasoning behind a protective costs order should ordinarily seek a short oral inter partes hearing before the first-instance judge. This keeps satellite litigation within a limited compass and avoids disproportionate costs. The omission of an express reference to the Secretary of State’s written request for a balancing costs cap did not establish that it had been overlooked; the brief reasons could be understood as recording that the order was not considered appropriate. The substantive planning case should proceed on its merits.

Court of Appeal (Civil Division). The court refused the renewed application for permission to appeal on 6 November 2008.

Administrative Court, Queen’s Bench Division. Collins J made a protective costs order on 1 July 2008, capping the claimant’s liability at £3,500. Permission to appeal was refused on paper by Waller LJ; neither party sought an oral hearing to set aside the order.