Cotham School v Bristol City Council & Ors

Costs protection under the Aarhus Convention is confined to claims falling within that regime. It does not extend automatically to separate applications relying on protective costs orders or costs-capping rules. A detailed offer to withdraw proceedings without costs may constitute a good reason to depart from the default Aarhus costs rule where the claim was unlikely to succeed.

Costs must be reasonably incurred, reasonable in amount and proportionate to the matters in issue. The court may assess recoverable costs by reference to appropriate rather than leading counsel. Permission to appeal requires a real, rather than merely fanciful, prospect of success or another compelling reason, but satisfaction of that threshold does not require permission to be granted.

The claimant, an academy school, brought a claim under CPR Part 8 seeking amendment of the commons register to remove the registration of Stoke Lodge playing fields as a town green. Following an earlier directions judgment, the court considered consequential costs issues and the claimant’s application for permission to appeal.

The claimant had sought three forms of costs protection: Aarhus Convention protection, a protective costs order under section 51 of the Senior Courts Act 1981, and a costs-capping order under CPR rule 3.19. The court also considered the costs payable to the second defendant and the City Council.

1. Costs. Costs were discretionary under section 51(1) of the Senior Courts Act 1981 and CPR rule 44.2. The second defendant was the successful party because she had defeated all three costs applications, although the court retained discretion to depart from the general rule.
2. Aarhus Convention protection. The default rule in CPR rule 46.28(3)(a) applied only to the Aarhus Convention application. The three applications sought different forms of relief under different regimes. The Aarhus protection did not extend to the protective costs order or costs-capping applications.
3. There was good reason to depart from the Aarhus default rule. The second defendant had provided detailed reasons why the application was bound to fail and had offered to allow withdrawal without seeking costs. The claimant’s failure to accept that offer, together with the court’s conclusion that the claim was not a statutory review challenging the legality of a decision under CPR rule 46.24(2)(a), justified an order for costs. The other alleged litigation misconduct did not independently establish good reason.
4. Assessment. Recoverable costs had to be reasonably incurred, reasonable in amount and proportionate to the matters in issue. Leading counsel was not reasonably or proportionately required for the directions hearing. The second defendant’s costs were summarily assessed at £7,500 plus VAT against the claimant and £1,500 plus VAT against the City Council, payable within 14 days.
5. Permission to appeal. Under CPR rule 52.6, a first appeal required a real prospect of success or another compelling reason. The real-prospect test meant a prospect that was not unreal. There was no real prospect of success on the Aarhus or protective-costs-order issues, and no compelling reason requiring an appeal. Permission was refused, with liberty to renew the application before the Court of Appeal.

First-instance consequential judgment following the directions judgment reported at [2024] EWHC 154 (Ch). Permission to appeal was refused, subject to renewal before the Court of Appeal.