Cotham School v Bristol City Council & Ors

A legal person may appear only once on the court record, even where it acts in different capacities or has conflicting interests. Separate representation does not justify naming the same person twice; if another interest requires independent representation, an appropriate person must be joined.

A claim under section 14 of the Commons Registration Act 1965 is a freestanding de novo claim, rather than a statutory review. It therefore falls outside CPR Part 46’s definition of an Aarhus Convention claim. A costs capping order is exceptional and will generally be inappropriate where costs management can control the risk of disproportionate costs.

The claimant academy school held a long lease of playing fields owned by Bristol City Council. The land had been registered as a town or village green following an application by a local resident. The school brought a CPR Part 8 claim under section 14 of the Commons Registration Act 1965 to amend the commons register.

The directions hearing concerned whether the Council could appear twice, once as commons registration authority and once as landowner, and whether the claimant was entitled to costs protection under the Aarhus Convention, the Corner House jurisdiction or CPR rule 3.19.

1. Court record. The rule in Hardie & Lane Ltd v Chiltern was general and applied to all civil litigation. A person could not appear twice on the record merely because it had different capacities or interests. The rule applied where the person appeared on the same side of the record as well as on opposite sides. The Council was one legal person, not two separate legal persons constituted by its administrative functions.
2. The Council was therefore ordered to withdraw its two acknowledgments of service and file one acknowledgment. It was to appear as a single defendant, represented and funded by one legal team, although more than one barrister could appear under one overall representation. If a genuine conflict required separate representation, an appropriate person would have to be joined.
3. Aarhus costs protection. The relevant provisions of the Commons Registration Act 1965 concerned national law relating to the environment. However, a claim under section 14 was not a judicial review or review under statute for CPR rule 46.24. It was a freestanding claim, determined de novo on the evidence before the court, without the usual time limit or restriction to material before the original decision-maker. CPR Part 46 therefore did not apply.
4. The court declined to use the Corner House jurisdiction to circumvent the deliberate limits imposed by CPR Part 46. The court was bound by Venn v Secretary of State for Communities and Local Government, and any extension to section 14 claims was a matter for the legislature.
5. Costs capping. A costs capping order under CPR rule 3.19 was an exceptional remedy. Where costs budgeting and management could adequately control any risk of disproportionate costs, the second and third preconditions in rule 3.19(5) were not met. The court ordered all parties to file and exchange costs budgets and declined to make a costs capping order.

First-instance directions judgment. No appellate decision was stated in the judgment.