Kirklees Council v Secretary of State for Transport

A party who adopts a baseless procedural position which necessitates a hearing and causes other parties to incur costs may be ordered to pay those costs. The court should consider whether clear and open warnings were given, particularly where the party is unrepresented. Failure to give such a warning may prevent an immediate costs order, but does not necessarily prevent an order after the party has had a fair opportunity to make submissions. The amount awarded should be just, proportionate and responsive to the basis on which costs are ordered.

This was a consequential costs determination following the court’s substantive judgment in the same proceedings, reported at [2023] EWHC 2459 (Admin). Lovell Partnerships resisted consent orders concerning the effect of a quashing order and sought a two-year period before the quashing took effect. The court rejected that position as baseless and directed written submissions on whether Lovell Partnerships should pay the costs incurred by Kirklees Council and the Secretary of State for Transport. The issue was whether, in light of the parties’ conduct and the absence of advance costs warnings, costs orders were justified and proportionate.

1. The court ordered Lovell Partnerships to pay two sets of costs. Its resistance had necessitated the hearing and had caused the Council and the Secretary of State to incur costs.
2. Lovell Partnerships had procedural entitlements as a party, including the entitlement to require the judge to be persuaded to make the order and to identify reasons against it. Those entitlements carried corresponding responsibilities and risks. Its position seeking a full two-year period before the quashing order took effect had no proper basis and had already been rejected in the substantive judgment.
3. The court considered that clear and open warnings of the potential costs applications ought to have been given. Such warnings would have made the costs orders immediate, particularly because Lovell Partnerships was not legally represented. The absence of warnings did not eliminate the prima facie case for costs, because Lovell Partnerships had been given a fair opportunity to make written submissions before the costs decision.
4. Ordering costs was justified, appropriate and proportionate. The court made a modest broad-brush reduction because the costs were not being ordered on an indemnity basis.
5. Lovell Partnerships was ordered, within 28 days, to pay Kirklees Council’s costs summarily assessed at £4,000 and the Secretary of State’s costs summarily assessed at £850.

The judgment was a consequential costs decision following the court’s substantive judgment in the same proceedings, [2023] EWHC 2459 (Admin). No appeal history is stated.