CPRE Kent v Secretary of State for Communities and Local Government

When permission for judicial or planning statutory review is refused, each defendant or interested party may recover the reasonable and proportionate costs of preparing an acknowledgement of service and summary grounds. Recovery is not confined to one set of costs and does not require exceptional or special circumstances.

The court must nevertheless assess proportionality case by case. It should consider duplication, the utility of each party’s grounds and whether one party should have anticipated the points made by another. Supreme Court intervention in Court of Appeal guidance on costs practice ordinarily requires an error of law of general public importance.

CPRE Kent sought statutory review under section 113 of the Planning and Compulsory Purchase Act 2004 of a local-plan policy adopted by Maidstone Borough Council. The Secretary of State, the Council and an interested developer each filed an acknowledgement of service and summary grounds. Permission was refused and each received costs, subject collectively to CPRE Kent’s Aarhus costs cap.

The costs order was affirmed below. The Court of Appeal dismissed CPRE Kent’s appeal in [2019] EWCA Civ 1230; [2020] 1 WLR 352. It held that more than one defendant or interested party could recover reasonable and proportionate acknowledgement-of-service costs without showing exceptional circumstances.

The issue before the Supreme Court was whether the Court of Appeal had erred in law by upholding that practice.

1. Appeal dismissed unanimously. Lord Hodge gave the judgment, with which Lord Reed, Lord Lloyd-Jones, Lord Leggatt and Lord Burrows agreed. The Court of Appeal had made no error of law.

2. Appellate principles concerning costs are generally matters of practice rather than law. The Court of Appeal has primary responsibility for monitoring and controlling that practice because it encounters relevant cases more frequently and can respond more flexibly. The Supreme Court will ordinarily intervene in a costs appeal only where an error of law is established. The Court of Appeal may review its own guidance where sufficient reason exists, including a material change of circumstances or a previous decision made per incuriam.

3. The guidance in Bolton Metropolitan District Council v Secretary of State for the Environment (Practice Note) [1995] 1 WLR 1176 did not establish a binding rule limiting recovery to one set of costs. It concerned costs following a substantive planning hearing and predated the acknowledgement-of-service procedure. Its guidance had to be read in light of the later procedural framework.

4. Under rule 54.8 of the Civil Procedure Rules 1998, and paragraph 5.2 of Practice Direction 8C, a person served with a claim who wishes to participate must file an acknowledgement of service. A person contesting the claim must provide summary grounds. Failure to comply risks exclusion from the permission hearing and may affect the recovery of costs. Nothing in those provisions excludes recovery of the costs incurred in compliance.

5. Accordingly, when permission is refused, more than one defendant or interested party may recover the reasonable and proportionate costs of preparing and filing an acknowledgement of service and summary grounds. Exceptional or special circumstances are unnecessary. The court retains its discretion and must examine the utility of each document, duplication between parties and whether one party should have anticipated another’s points.

6. The policy concerns advanced by CPRE Kent could be addressed through rules, practice directions or revised Court of Appeal guidance. In the absence of an error of law of general public importance, they provided no basis for Supreme Court intervention.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The Court held that the Court of Appeal’s guidance disclosed no error of law: [2021] UKSC 36 .
2. Court of Appeal: The appeal against the costs decision was dismissed. The court held that each defendant or interested party might recover reasonable and proportionate acknowledgement-of-service costs without exceptional circumstances: [2019] EWCA Civ 1230 ; [2020] 1 WLR 352 .
3. High Court: HHJ Evans-Gordon affirmed Lang J’s awards of costs to the Secretary of State, Maidstone Borough Council and the interested developer. Lang J had refused permission for statutory review and awarded costs which exhausted the £10,000 Aarhus cap.