Riseborough, R (on the application of) v The Lands Tribunal

On an interlocutory appeal concerning judicial review of a tribunal’s indemnity-costs order, the court identified an arguable distinction between whether the original decision was unlawful on the material then available and whether the tribunal had power to reconsider costs after later evidence suggested a fundamental mistake. The lower court’s treatment of the first question did not necessarily answer the second. The Court of Appeal made no final ruling and adjourned the application for legal advice and written submissions.

Mr and Dr Riseborough challenged an indemnity costs order made by HHJ Gilbart QC in Lands Tribunal proceedings concerning compensation for electricity infrastructure. After an expert and the applicants jointly withdrew earlier allegations, they sought rescission. Judicial review followed. Holman J considered it arguable that the tribunal might have power to adjust a costs order made on a fundamentally mistaken basis and that the later letter warranted reconsideration. Nicol J treated the judicial review as confined to the material before the original decision-maker and rejected reliance on later evidence as a means of showing legal error. The appeal concerned whether that approach addressed the wider question framed for judicial review.

Lord Justice Thomas did not determine the merits of the proposed appeal or grant or refuse permission. He considered that the applicants’ complaints of legal error, bias, impropriety and mishandling of documents had no real prospect of causing the court to take a different view from Nicol J. There was no evidence of bias on the part of Nicol J or Sir Richard Buxton.

There was, however, an arguable issue as to whether Nicol J had addressed the full scope of the judicial review question. Nicol J had considered whether the original costs decision was infected by legal error by reference to the evidence and material available when it was made. He treated subsequent evidence, including the joint withdrawal letter, as incapable in the circumstances of establishing that the original decision was unlawful. Thomas LJ left open whether that analysis answered the wider question identified by Holman J: whether the Lands Tribunal had power to adjust a costs order later shown to have been made on a fundamentally mistaken basis.

The court also identified two possible reasons why the appeal might fail even if the scope point were arguable: the possible absence of power to correct a costs order and the possibility that the later letter would not justify changing the order after further investigation.

1. The applicants were given one month from receipt of the transcript to obtain advice from a lawyer familiar with administrative law.
2. Any further argument was to be reduced to writing.
3. The application was adjourned for consideration on paper without a further hearing.

• Court of Appeal (Civil Division): the application in the appeal was adjourned to permit legal advice and written submissions.
• Queen’s Bench Division, Administrative Court: Nicol J dismissed the judicial review challenge to the indemnity costs order, treating later evidence as incapable of establishing that the original decision was unlawful.