King's Lynn and West Norfolk Council v Bunning

Costs in contempt proceedings remain a matter of judicial discretion. The general rule that the unsuccessful party pays does not make the party who obtains the practical outcome automatically successful, especially where the issues have not been tried and that party faced a real risk of losing. A judge may end proceedings and make no order for costs where a declaration has no practical utility and continuation would waste court time and public money, even though there is a prima facie case. Legal-aid status ordinarily does not diminish a successful party’s entitlement to costs. It may, however, be relevant to whether continued publicly funded litigation has utility. An appellate court should interfere with a costs order only for a recognised error of principle, improper consideration or omission, or plain unsustainability.

The Council obtained a High Court order restricting residential use of land. It later brought contempt proceedings against Ms Bunning and Mr Taylor for alleged breaches. By the hearing before HHJ Ralls QC, the Council sought only a declaration against Ms Bunning. She had left the land, and the judge considered that a declaration had no practical utility. He ended the proceedings and made no order as to costs.

Ms Bunning appealed only against the costs order. The central issues were whether she was the successful party, whether the judge had properly exercised the costs discretion, and whether her legally aided status could be considered in assessing the utility of continuing the proceedings.

1. Appeal dismissed. Lord Justice Irwin held, with Lord Justice Kitchin agreeing, that HHJ Ralls QC had made a proper exercise of his costs discretion.
2. Under Civil Procedure Rules 1998, rule 44.2(2) states the general rule that the unsuccessful party bears the costs, while rule 44.2(1)(a) gives the court a broad discretion to make a different order. The practical outcome alone did not make Ms Bunning the successful party. The issues had not been tried, and she faced a real risk of an adverse finding because the Council had sufficient evidence on service and knowledge of the order, while occupation during the relevant period was admitted.
3. The judge was entitled to consider that there was a prima facie case, but that the declaration sought had no practical utility after Ms Bunning had left the land and the relationship with Mr Taylor had broken down. Continuing the case would have required further litigation at public expense for an essentially academic purpose. Ending the proceedings and making no order as to costs was therefore neither wrong in principle nor plainly unsustainable.
4. Legal-aid status should ordinarily be irrelevant to a successful party’s entitlement to recover costs. It was nevertheless relevant here to the utility of continuing proceedings because both sides were publicly funded. There was no indication that, had the issues been tried, legal-aid status would have affected the costs decision apart from statutory requirements concerning the form and enforcement of any order.
5. The fallback principle in R (Boxall) v Waltham Forrest London Borough Council (2000) 4 CCLR 258 concerned compromised judicial review claims and did not apply to these High Court contempt proceedings. Other Boxall guidelines concerning legal aid and avoiding unnecessary court time and expense remained relevant. The principles concerning costs discretion in R (M) v Mayor and Burgess of the London Borough of Croydon [2012] 1 WLR 2607 and appellate restraint in F&C Alternative (Holdings) Limited v Barthelemy and Another (No 3) [2013] 1 WLR 548 supported that conclusion.

• Court of Appeal (Civil Division): Permission was refused on paper but granted on oral renewal. The appeal against the costs order was dismissed: [2016] EWCA Civ 1037.
• High Court of Justice, Queen’s Bench Division: HHJ Ralls QC, sitting as a Deputy High Court Judge, ended the contempt proceedings, declined to make the declaration sought against Ms Bunning, and made no order as to costs on 25 November 2013.