Basildon Borough Council v Eliza Saunders & Ors

In deciding costs, the court should first identify the successful party overall and then consider whether there is a good reason to depart from the usual order. A party may be treated as successful where it defeats the principal substantive relief sought, even if continuing interim or prohibitory relief remains in force and the ultimate outcome is contingent. The court may order costs from a specified date, limit recovery to a proportion, or award costs for a particular issue. A late concession can justify shifting costs where the opposing party had sufficient information and time to reassess the merits of continuing to trial.

The claimant sought final injunctive relief under section 187B of the Town and Country Planning Act 1990 concerning alleged unauthorised development and residential use of land. The court declined to grant the requested final mandatory injunction requiring the fifth defendant and her children to leave, while continuing the existing injunction pending planning appeals.

This costs judgment concerned only the fifth defendant and the two-day final hearing. The issue was whether she was the successful party and, if so, whether the claimant should pay her costs from a specified date and on what basis.

1. Success at the final hearing. The fifth defendant was properly regarded as the successful party because she resisted the central relief sought: a final mandatory injunction which would effectively have evicted her and her children. The continuing prohibitory injunction did not alter that conclusion. The ultimate position remained contingent on the planning appeal process.
2. Costs discretion. Under Civil Procedure Rules 1998, r 44.2, the court should begin by asking which party was successful overall and then consider whether there was a good reason to make a different order from the usual one. The court could order costs up to or from a specified date, costs of a particular issue, or only a proportion of costs.
3. Appropriate costs date. By 18 October 2024, the claimant had sufficient information about the fifth defendant’s circumstances and had received a proposal for a consent order continuing the existing position. The claimant nevertheless proceeded with the final hearing. It was therefore appropriate for the claimant to pay the fifth defendant’s costs from that date.
4. Amount and form of order. The claimant was ordered to pay 50 per cent of the fifth defendant’s costs from 18 October 2024 on account, within 28 days of receipt. Costs incurred in the costs submissions were included. Any costs not agreed were subject to detailed assessment, including detailed assessment of the legally aided costs. Costs otherwise remained costs in the case.

The judgment records earlier interlocutory orders and a prior approved judgment following the final hearing. It does not describe an appeal from this costs decision.