Cotham School v Bristol City Council & Anor

The court has a broad discretion over costs. The usual order is that the unsuccessful party pays the successful party’s costs, but the court may apportion liability by reference to the parties’ relative participation and success. Where an application is withdrawn before determination, the court should not decide the underlying merits merely to allocate costs. A costs order requires a proper evidential basis for identifying the successful party; otherwise, the appropriate order may be no order. Permission to appeal requires a real prospect of success or another compelling reason. Appellate courts should not lightly interfere with primary factual findings, evaluative judgments or discretionary decisions. A definitive map is conclusive evidence of a recorded public right of way, but the absence of a marking does not conclusively establish the absence of such a right.

The ruling concerned consequential matters following the court’s substantive judgment in the claim by Cotham School against Bristol City Council and Katharine Welham concerning registration of land as a town or village green. The court had previously decided the substantive issues in [2025] EWHC 1382 (Ch).

The court determined the apportionment of the substantive claim’s costs, the costs of a withdrawn contempt application concerning alleged collateral use of a witness statement, and Ms Welham’s application for permission to appeal on five grounds. The central issues were the proper basis for costs orders in an undetermined application and whether the proposed appeal had a real prospect of success or another compelling reason for being heard.

1. Costs of the claim. Costs were in the court’s discretion under CPR rule 44.2(1). Although the general rule was that the unsuccessful parties should pay the successful party’s costs under CPR rule 44.2(2)(a), the court could make a different order under CPR rule 44.2(2)(b), taking account of conduct, relative success and admissible settlement offers. Cotham was successful. Because Ms Welham had led and substantially conducted the defence, while Bristol City Council had taken a much more limited role, costs were apportioned 90% to Ms Welham and 10% to Bristol City Council.
2. A payment on account was appropriate under CPR rule 44.2(8). The court declined to conduct a summary assessment and ordered payment of 60% of the approved costs budget, namely £9,467 by Bristol City Council and £85,203 by Ms Welham.
3. Withdrawn contempt application. The court applied the approach stated in Andrew Hicks Engineering Ltd v Jenk Associates Ltd [2023] EWHC 2031 (Ch). It was inappropriate to resolve the merits of an application that had not been determined merely to decide costs. There was sufficient material to show that the issue was arguable, including the broad meaning of use recognised in IG Index Ltd v Cloete [2015] ICR 254 and the potential abuse arising from an improper collateral purpose discussed in Navigator Equities Ltd v Deripaska [2022] 1 WLR 3656. However, the court could not identify the successful party. No order for costs was therefore made on the contempt issue.
4. Permission to appeal. Under CPR rule 52.6, Ms Welham had to show a real prospect of success or another compelling reason. The general importance of town or village green cases was not, by itself, a compelling reason. Permission was refused on most grounds because the court had applied binding legal principles, or because the complaints challenged factual or evaluative conclusions. The approach in Volpi v Volpi [2022] 4 WLR 48 was applied: appellate intervention requires the trial decision to be plainly wrong. The court left the Court of Appeal to decide whether permission should be granted on the potentially arguable education-legislation point.
5. The court refused permission to appeal.

This was a consequential ruling following the court’s substantive judgment in [2025] EWHC 1382 (Ch). The court refused permission to appeal against the substantive order.