Derbyshire County Council v High Peak Magistrates' Court

A magistrates’ court has a wide statutory discretion to award costs in proceedings concerning the exercise of regulatory powers. Where a private litigant vindicates a public right, a public authority resisting relief must show a strong reason why costs should not ordinarily follow success. The authority’s conduct must be assessed in the round, including its changes of position, expectations created, delay and the effect on the citizen litigant. A reviewing court should not interfere merely because it would have exercised the discretion differently. Intervention is justified only for an error of principle, failure to consider a material matter, or a decision outside the generous ambit of reasonable disagreement.

Ms Kate Marlow applied to the High Peak Magistrates’ Court under section 130 B of the Highways Act 1980 for an order requiring Derbyshire County Council to secure the removal of obstructions from a public footpath. The substantive dispute was eventually resolved by consent, with the Council accepting liability for the application but later withdrawing that position.

The District Judge ordered the Council to pay Ms Marlow’s costs under section 64 of the Magistrates’ Courts Act 1980. The Council sought judicial review of that costs decision, contending that it had acted reasonably and in good faith and that the District Judge had failed properly to apply the principles governing costs against regulatory authorities. The central issue was whether the costs order was lawful.

1. Claim dismissed. The District Judge had jurisdiction under section 64 of the Magistrates’ Courts Act 1980 to make such costs order as was just and reasonable. The discretion was wide and was not confined to cases in which the public authority had acted unreasonably or in bad faith.
2. The court proceeded on the assumption that the more favourable approach applicable in regulatory cases governed the application. Under that approach, costs do not automatically follow the event; financial prejudice alone is insufficient, although substantial hardship may be relevant. The authority’s reasonableness and good faith are important factors, but the authority’s conduct must be assessed without imposing an excessively exacting standard.
3. In the present context, a private litigant was seeking to vindicate a public right. The Council had repeatedly created clear expectations that it would secure removal of the obstruction, changed its position without adequate warning, pursued unmeritorious preliminary points, continued to contest the effect of Herrick v Kidner after the reasoning had been endorsed in Kind v Northumberland County Council, and withdrew an offer to pay costs. Looking at the history as a whole, the Council’s conduct fell significantly short of what could reasonably be expected of a public authority.
4. The District Judge had a rational basis for concluding that it would cause serious injustice if Ms Marlow were left without her reasonable costs. He was not required to address every submission seriatim, provided that he explained succinctly why the order was fair and reasonable.
5. The judicial review court’s function was limited. Concerns about procedure or the merits of individual aspects of the decision did not justify intervention unless they undermined the integrity of the decision. The court had no jurisdiction in this claim to give guidance on the amount of costs, which remained for the District Judge.

The judgment itself does not state a prior appellate decision in the same litigation. It records that the High Peak Magistrates’ Court ordered the Council to pay Ms Marlow’s costs, and the Council sought judicial review of that order. The judicial review claim was dismissed.