Westminster City Council v Secretary of State for Housing Communities and Local Government

Parties in judicial review and statutory review proceedings have a continuing duty to assist the court in managing its finite resources. That duty includes reviewing the merits throughout the proceedings, notifying the court promptly when settlement or discontinuance becomes likely, and complying with procedural orders unless a valid extension or other relief is obtained.

Agreement between the parties does not justify keeping a fixture while settlement terms or costs remain unresolved. Late notification may cause prejudice to other court users and may warrant an adverse costs order, including indemnity costs in a sufficiently serious case. The court may also require a hearing or detailed explanation to address failures of candour, compliance and case management.

Westminster City Council brought two statutory challenges under section 288 of the Town and Country Planning Act 1990 to planning inspectors’ decisions concerning permitted development rights for telephone kiosks. Permission had been granted on restricted grounds, and substantive hearings had been listed.

Following a Court of Appeal decision and legislative changes affecting the relevant permitted development right, the Council decided to discontinue. It notified the defendants shortly before the hearing but failed to notify the court promptly, comply with directions for bundles and skeleton arguments, or provide a satisfactory and candid explanation. The court therefore retained the fixture to examine the procedural conduct and the proper costs consequences.

1. The Council’s two claims were discontinued, but the court was entitled to retain the fixture and require an explanation. The late decision to discontinue, failure to notify the court, non-compliance with directions and incomplete or misleading explanations had wasted court resources and prevented the fixture from being reallocated.
2. Under CPR 1.1 and 1.3, parties must help the court further the overriding objective, including by ensuring that cases are dealt with expeditiously and fairly, court resources are appropriately allocated, and rules, practice directions and orders are obeyed. This is a continuing obligation throughout the proceedings.
3. Parties must continually reassess the merits after permission has been granted and after receiving grounds of resistance or other material. A party intending to withdraw or settle a fixed case should notify the Administrative Court Office as soon as the possibility arises, ordinarily before the final procedural steps for the hearing. Discussions about a draft order or costs do not justify withholding that information.
4. CPR 2.11 permits written agreements extending time only where its conditions are met. It does not give parties carte blanche to disregard a procedural timetable or imperil a hearing. Even a valid agreement does not displace the duty under CPR 1.3 to keep the court informed.
5. The court’s costs jurisdiction under CPR 44 remains available notwithstanding discontinuance under CPR 38 or settlement by submission to judgment. Conduct may justify an adverse order, including indemnity costs in a sufficiently serious case. In exceptional circumstances the court may hold a hearing analogous to the Hamid jurisdiction to investigate and discourage serious procedural misconduct.
6. No additional costs order was made against the Council for the hearing, having regard to the circumstances, the novelty of the hearing and the Secretary of State’s position. The judgment nevertheless gave formal guidance that unjustifiably late settlement or discontinuance is incompatible with the parties’ duties to the court.