Buckinghamshire Council v Jimmy Barrett & Ors (No 2: costs)

Costs do not automatically become the liability of one defendant merely because that defendant lost the claim against him. The court must exercise its discretion by identifying costs clearly attributable to each defendant and may award only a proportion of the successful party’s costs where appropriate. It must then assess whether the apportioned costs were reasonably incurred and proportionate, having regard to the importance and complexity of the case. Costs should not ordinarily be used as a punitive measure. A court may specify a later date for payment, balancing the paying party’s circumstances against the receiving party’s legitimate interest in recovery.

The claimant local authority obtained final mandatory and prohibitory injunctions against Jimmy Barrett following breaches of planning control. Its claim against Persons Unknown failed, and its claim against a second defendant was discontinued. The parties invited the court to summarily assess costs. The issues were apportionment between defendants, the reasonable and proportionate amount recoverable, and the time allowed for payment. The court also considered whether the failed Persons Unknown application warranted a punitive costs reduction and whether pro bono representation justified an award under section 194 of the Legal Services Act 2007.

1. The claimant was the successful party against Mr Barrett, but he did not automatically become liable for all costs incurred in the proceedings. The proper approach was to determine what costs could clearly be attributed to each defendant. A broad one-third apportionment was rejected. The court assessed 80% of the reasonable costs as attributable to Mr Barrett, reflecting his principal responsibility for the planning breaches.
2. Costs had to be reasonably incurred and proportionate. The case was not relatively straightforward: it involved live evidence, cross-examination, an inferential case and detailed analysis of the evidence. Instruction of external solicitors and independent counsel was reasonable, although some claimed work and rates were excessive. Seventy per cent of the properly apportioned costs was therefore recoverable.
3. The failed Persons Unknown application was not unreasonable. Although the remedy was exceptional and required a proportionate response, the claimant had genuine concerns, interim relief had previously been granted, and there had been limited time to respond to Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47. Costs were not to be used punitively in these circumstances.
4. The court balanced Mr Barrett’s position as an individual with the claimant’s status as a public authority and allowed six weeks from 25 January 2024 for payment under CPR 44.7(1)(c).
5. The pro bono representation did not justify an award under section 194 of the Legal Services Act 2007. The parties were directed to agree an order reflecting the assessment.

First-instance costs decision following the substantive injunction judgment, [2024] EWHC 140 (KB).