Eyers, R (on the application of) v Uttlesford District Council

Permission to appeal against a costs order should be refused unless the proposed appeal has a real prospect of success. The Court of Appeal will interfere with a first-instance judge’s costs discretion only where the judge misunderstood the law, applied an incorrect legal principle, misunderstood the facts, or took account of irrelevant matters or failed to consider relevant matters. A different outcome might have been reached by the appellate court, but that is insufficient. Costs compensate work done in preparing and presenting proceedings; they do not compensate consequential financial loss, which must be pursued as damages if available. A judge may take into account the unnecessary costs caused by a claimant’s refusal to accept withdrawal of a challenged decision. A balanced exercise of discretion will not be disturbed where it was not legally wrong.

Mr and Mrs Eyers challenged a Breach of Condition Notice served by Uttlesford District Council in connection with planning permission for stables. After permission to bring judicial review proceedings had been granted, the council withdrew the notice. The underlying judicial review proceedings were disposed of by Mr Ockelton on 12 February 2009, with costs to be determined in writing if the parties could not agree.

Collins J subsequently considered the costs issue on the papers and ordered that there be no order as to costs. He took account both of the apparent merits of the challenge and the fact that the appellants had refused to agree to withdrawal, thereby incurring further costs. After Dyson LJ refused permission on the papers, the appellants renewed their application. The central issue was whether there was a real prospect that the costs discretion had been exercised unlawfully.

1. Application refused. There was no real prospect of a three-member Court of Appeal allowing the appeal against Collins J’s order.
2. An appeal against a first-instance costs order requires permission. Permission should not be granted unless the proposed appeal has a real prospect of success. The Court of Appeal will interfere with the exercise of the first-instance judge’s costs discretion only where the judge has gone wrong in law or principle, misunderstood the facts, taken account of irrelevant matters, or failed to take account of relevant matters.
3. Collins J had correctly distinguished costs from damages. Costs cover work done in preparing and presenting the claim and do not cover the appellants’ alleged financial losses. He was entitled to balance the fact that the breach notice was withdrawn following the claim against the further costs incurred because the appellants did not agree to withdrawal and proceeded to an unnecessary hearing.
4. The fact that the Court of Appeal might have made a different costs order was immaterial. Collins J’s decision was balanced and could not be characterised as legally wrong or plainly wrong.
5. The court declined to reconsider the appellants’ allegations of misconduct or the merits of the underlying judicial review, because the application concerned only permission to appeal the costs order. Order: application refused.

• Court of Appeal (Civil Division): After Dyson LJ refused permission on the papers, the renewed application for permission to appeal was refused by Lord Justice Mummery.
• Queen’s Bench Division, Administrative Court: Collins J ordered on 12 May 2009 that there be no order as to costs in the judicial review proceedings.
• Administrative Court: Mr Ockelton disposed of the underlying judicial review proceedings on 12 February 2009 and directed that costs be dealt with in writing if the parties could not agree.