Campaign to Protect Rural England & Anor v Secretary of State for Communities and Local Government & Ors

Refusal of permission for judicial or statutory review does not by itself limit recoverable costs to one defendant or interested party. A claimant may be ordered to pay each party’s reasonable and proportionate costs of preparing and filing an acknowledgment of service and summary grounds. Additional parties need not show exceptional or special circumstances.

The Aarhus cap is a global ceiling on the claimant’s total costs liability. It is not a further stage-specific sub-cap and does not justify reducing costs below the amount independently assessed as reasonable and proportionate. Interested parties fall within the scheme. Courts must assess reasonableness and proportionality rather than simply allow costs because the cap has not been reached.

The appellant challenged the adoption of a local plan by statutory review. The Secretary of State, the local planning authority and the developer were served with the claim and filed acknowledgments of service and summary grounds.

Lang J refused permission on the papers and ordered costs in favour of all three parties, subject to the £10,000 Aarhus cap. HHJ Evans-Gordon affirmed the costs order on review. The appeal concerned multiple costs orders, the identification of a lead defendant, and the application of the Aarhus cap where the claim failed at the permission stage.

1. The appeal was dismissed. Lord Justice Coulson gave the judgment, with which Lord Justice Hamblen and Lord Justice David Richards agreed.
2. Under Part 54 of the Civil Procedure Rules 1998, a person served with a judicial-review claim who wishes to participate must file an acknowledgment of service and, where appropriate, summary grounds. A party who complies with that obligation and succeeds at the permission stage is prima facie entitled to recover the reasonable and proportionate costs of doing so. The principle stated in Leach [2001] EWHC Admin 455, and the guidance in R (on the application of Mount Cook Land Limited) v Westminster City Council [2003] EWCA Civ 1346, applied to more than one defendant or interested party. The same approach was confirmed in R (on the application of Luton BC) v Central Bedfordshire Council [2015] EWCA Civ 537.
3. There is no requirement for an additional defendant or interested party to establish exceptional or special circumstances. However, each set of costs must be reasonable and proportionate. The court must consider the utility of the separate acknowledgment and grounds, the degree of duplication, and whether an additional party should have anticipated points taken by the lead defendant. Entirely duplicative work may therefore be unrecoverable. The principles in Bolton Metropolitan District Council and others v the Secretary of State for the Environment [1995] 1 WLR 1176 remain relevant through the modern proportionality assessment, although the later CPR procedure has overtaken their application to the earlier procedural context.
4. The same costs principles apply to planning statutory review. Practice Direction 8C does not establish a different regime. Its use of the singular “a defendant” does not exclude multiple defendants, and paragraph 5.2 applies to any person served with the claim form who wishes to take part. An interested party is not excluded merely because it is described as such rather than as a defendant.
5. The Aarhus cap under Part 45 of the Civil Procedure Rules 1998 is global. It limits the claimant’s total exposure to costs otherwise recoverable by defendants or interested parties, regardless of the stage at which those costs are incurred. It creates no lower cap for the permission stage and does not justify a further reduction after reasonable and proportionate costs have been assessed. The court must not simply allow costs because the total remains below the cap.
6. The proposed question of which party should be the lead defendant did not arise for decision. Hard and fast rules should be avoided, subject to the statutory requirements governing service.

• Court of Appeal (Civil Division): dismissed the appeal against the affirmed costs order.
• High Court of Justice, Planning Court: Lang J refused permission for statutory review on 31 January 2018 and ordered costs against the claimant. HHJ Evans-Gordon affirmed that order on 20 April 2018.