Cherkley Campaign Ltd, R (on the application of) v Mole Valley District Council & Anor

Where a claimant succeeds in judicial review, the ordinary costs order may still be adjusted to reflect unsuccessful issues. A reduction is not appropriate merely because some grounds failed. The court should consider whether those grounds were reasonably pursued, whether they were closely related to successful grounds, and whether the claimant succeeded on the central challenge. Costs incurred before proceedings are recoverable only by the party legally liable for them. A claimant cannot recover costs incurred by a non-party or costs for which it has no legal liability. Interim injunction costs should reflect the practical and iterative nature of urgent applications, including applications needed to prevent irremediable harm.

The claimant succeeded in judicial review proceedings and obtained an order quashing the grant of planning permission. The judgment concerned consequential costs issues. The defendant sought a reduction because two grounds had failed. The claimant sought its substantive costs in full. The claimant also sought costs of interim injunction proceedings from the interested party, which opposed that application and sought costs of particular hearings.

A further issue concerned the costs of a pre-action protocol letter sent before the claimant was incorporated. The central questions were whether unsuccessful grounds justified a reduction, whether the claimant could recover costs incurred by another organisation, and how the costs of the interim injunction proceedings should be allocated.

1. Substantive judicial review costs. The claimant was entitled to its costs of the substantive claim in full, subject to detailed assessment if not agreed. The unsuccessful ecology and water grounds did not justify a percentage or issues-based reduction. They were reasonably pursued, were not pursued unselectively, and were closely related to the successful grounds. The claimant had also succeeded on the major grounds forming the heart of its challenge. This approach was consistent with the guidance in Bugden v Andrew Gardner Partnership [2002] EWCA Civ 1125 and CPR 44.3.1.7.
2. Pre-action protocol letter. The costs of the letter sent on 29 October 2012 were not recoverable. Under CPR 46.2, the CPRE, which was not a party, could not claim those costs unless joined. Further, the claimant was not incorporated until after the letter and had not agreed to pay the solicitor’s charges. The indemnity principle therefore prevented recovery from the defendant.
3. Interim injunction costs. The interested party was ordered to pay the claimant’s costs of and occasioned by the interim injunction proceedings from 18 March 2013. The urgent application to Simon J was not an abuse of process. The claimant was entitled to renew the paper application orally, given the time-sensitive risk of irremediable landscape damage. There had been no failure of full and frank disclosure. The arguments had also been inferentially rejected when Holman J declined to discharge the injunction.
4. The successive injunction hearings formed an iterative process of obtaining and modifying protection while development works continued. It was therefore inappropriate to separate out the costs of the hearing before Collins J. The order covered the substantive costs, the interim injunction costs, and specified costs of the costs application. Payment was stayed pending the final determination of the permitted appeals against the substantive judgment.

This was a first-instance costs judgment following the claimant’s successful judicial review. The judgment records that permission to appeal the substantive judgment had been granted to the defendant and interested party, and that the costs order was stayed pending final determination of those appeals.