Easter, R (On the Application Of) v Mid-Suffolk District Council & Anor

Refusal of permission for judicial review on the papers does not make an oral renewal hearing inevitable. Where the parties agree, the court may grant permission and dispose of the claim by consent without a hearing under Part 54 and rule 40.6 of the Civil Procedure Rules 1998.

Costs are a broad discretionary matter. The court may apportion costs by reference to the parties’ conduct and the point at which an interested party substantively assumes responsibility for resisting a claim. An appellate court should intervene only for an error of principle or an unjust or perverse result.

Cheryl Easter brought judicial review proceedings challenging planning permission granted by Mid-Suffolk District Council to her neighbour, Debenham Antiques Ltd. The Council initially conceded one ground, but the Interested Party later opposed permission and applied out of time to file an acknowledgement of service and summary grounds of resistance.

Permission was refused on the papers, then granted by Holgate J after an oral renewal hearing at which the Interested Party resisted the claim. The grounds were amended and the claim was ultimately disposed of by consent, leaving costs to be determined. On 16 October 2019, HHJ Evans-Gordon ordered the Council to pay costs up to 5 February 2019 and the Interested Party to pay costs thereafter. The Interested Party appealed, arguing that the oral hearing was inevitable and that later costs were not caused by its conduct.

Lord Justice Singh gave the judgment of the court, with which Lord Justices Popplewell and Moylan agreed. The appeal was dismissed.

1. Renewed permission. CPR 54.12 permits a claimant to renew an application after permission has been refused on the papers, but it does not require an oral hearing in every case. CPR 54.18 permits the court to decide a claim for judicial review without a hearing where all parties agree. The expression claim for judicial review is broad and includes the permission stage and other procedural steps, not merely the substantive hearing.
2. Consent orders. CPR 40.6 provides an additional route. Where the parties agree the terms of an order, a party may apply for it and the court may deal with that application without a hearing. This permits an agreed order granting permission and disposing of the substantive claim, even after permission has been refused on the papers. Section 31(3) of the Senior Courts Act 1981 requires permission for judicial review but does not require an oral hearing in those circumstances.
3. Costs and appellate review. The discretion under CPR Part 44 is broad and includes consideration of the parties’ conduct, including the manner in which a party pursued or defended an issue. The court applied the approach summarised in R (Parveen) v Redbridge LBC [2020] EWCA Civ 194: an appellate court must not substitute its own view and should intervene only where there is an error of principle or the result is unjust or perverse.
4. Application. The first-instance judge was entitled to take a common-sense view and to identify 5 February 2019 as the point at which the Interested Party took on the burden of defending the claim. Its out-of-time acknowledgement of service and summary grounds were substantive. Its resistance caused the oral hearing and preparation for it, while the fundamental grounds survived the later amendment. The judge was also entitled to allow for costs attributable to the Council after that date by setting them off against costs relating to the Interested Party before that date.
5. The costs order involved no error of principle and was neither unjust nor perverse. The appeal was therefore dismissed.

• Court of Appeal (Civil Division): Permission to appeal was granted on the papers by Lewison LJ on 6 February 2020. The appeal was dismissed on 27 October 2020: [2020] EWCA Civ 1378.
• High Court, Administrative Court: On 16 October 2019, HHJ Evans-Gordon ordered Mid-Suffolk District Council to pay the claimant’s costs up to 5 February 2019 and Debenham Antiques Ltd to pay costs incurred thereafter. The latter costs were summarily assessed at £19,338.84.