Neutral Citation Number: 2013 EWHC (Admin)

CO/10709/2012

Neutral Citation Number: [2013] EWHC (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Wednesday, 27 March 2013

B e f o r e:

MRS JUSTICE LANG

Between:

THE QUEEN ON THE APPLICATION OF OLDFIELD

Claimant

v

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT

Defendant

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Mr Paul Stookes (instructed by Richard Buxton) appeared on behalf of the Claimant

Mr Rupert Warren QC (instructed by the Treasury Solicitors) appeared on behalf of the Defendant

Mr Christopher Katkowski QC (instructed by Osbourne Clarke) appeared on behalf of the Interested Party

J U D G M E N T

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1.MRS JUSTICE LANG: Iam grateful to counsel for their impressive skeleton arguments and oral submissions. Iconclude that grounds 1 and 2 are arguable for the reasons set out in the claimant's pleadings and skeleton. Iwill say no more about my views, as it is amatter for the judge who hears the full judicial review to determine where the merits lie.

2.In relation to ground 3, there is recent Court of Appeal case law on the correct approach for thecourt to take in considering achallenge to adecision on likely significant environmental effects and those authorities are binding on this court. In so far as ground 3 seeks to depart from the tests laid down in the existing case law, Iconsider it is unarguable. In so far as it seeks to argue that the Secretary of State has not correctly applied those tests to the facts of this case, Iconsider it is arguable and Iidentify the place in which Iconsider those points have been set out by the claimant in the grounds at page20, paragraphs 34 to 36, but after that Iconsider that the grounds are moving on to the broader challenge to the appropriate test, which in the light of the existing authorities Iconsider to be unarguable.

3.Ialso consider ground 4 to be unarguable. It is clear and there is support in the authorities for this, that the legal requirement is to decide whether or not the EIA regulations and directive are applicable and there is no separate requirement to consider the need for extended participation rights.

4.MRS JUSTICE LANG: There is anapplication for aprotective costs order, and Iwill deal with that and Ialso just need to ask the parties whether they are content for the court to make the standard directions for service of evidence and skeleton arguments and bundles and so on, or whether there is any application to depart from those?

5.MR STOOKES: On the second point, my Lady, Iam content for the standard points and directions.

6.On the application for aPCO, the defendant said that he has no objection to aPCO. There was silence from the second interested party. Isuspect that is in the light of the emerging Civil Procedure Amendment Rules.

7.As it is set out in the skeleton, we would ask for aPCO with nil liability for the claimant. This is at paragraph43 of the skeleton argument, and that rather than in accordance with the new amendment rules of having acap at £5,000 for the claimant's costs and £35,000 for the reciprocal cap. We ask for acap set at nil, the reason being my client simply cannot afford acap set at £5,000. The cost in this case have been costs incurred. We did ask for the inquiry to be adjourned and it was not, so my clients have incurred those costs.

8.MRS JUSTICE LANG: Have Igot the new rules?

9.MR STOOKES: My Lady, they are either at tab3 or 4. They are at tab3. It is the second page that my learned friend brought me to and the costs, the standard on what is about to be the standard conventional costs are at the final page, which is in fact 41, and this is in the Practice Direction, which is the document set out.

10.MRS JUSTICE LANG: So that specifies £5,000?

11.MR STOOKES: It specifies £5,000 at 5.2, areciprocal cap at £35,000.

12.MRS JUSTICE LANG: So you ask me to depart from the £5,000?

13.MR STOOKES: Yes, my Lady.

14.MRS JUSTICE LANG: Where is my discretion to do that?

15.MR STOOKES: My Lady, the proposed discretion Ithink Ihave not

16.MR WARREN: If Imay assist, my Lady? At the moment these amendments are not in force. So your discretion is as previously.

17.MR STOOKES: Iam very grateful. There is discretion inherent in 3.1 to make any order for costs.

18.MRS JUSTICE LANG: Did not your client originally suggest acap of £2,000 or am Imisremembering that?

19.MR STOOKES: My Lady, yes, that is correct. That was in the statement of grounds. This was issued prior to the enquiry but there have been costs that have been incurred and could not be anything other than incurred and it is for that reason.

20.MRS JUSTICE LANG: But the other thing is she is not really on her own, is she? Although this is not in former representative action. She does say in her witness statement, does she not, that she is chair of some local trader's group?

21.MR STOOKES: This action is on behalf of my client.

22.MRS JUSTICE LANG: There would be scope for fund raising, would there not?

23.MR STOOKES: There could be, but there is not support for that. I will double check the instructions but Iunderstood the position to be that the traders certainly were not Iam not saying they would not fall forward or support of it.

24.MRS JUSTICE LANG: They do not want to put their hands in their pockets.

25.MR STOOKES: Yes. Iwill only say that. The original application was for a£2,000 limit there.

26.MRS JUSTICE LANG: Iwill just hear from other counsel.

27.MR WARREN: My Lady, the Secretary of State's position is (i) no objection to aPCO in principle; (ii) the standard approach which, as at today's date is still through the emerging MOJ guidance was £5,000, should apply unless there is evidence to substantiate a different order. Whilst Iappreciate my learned friend makes these points on instructions to the court, we do not have any evidence of the kind that is usually put in to justify the percuniosity etc in these cases.On that basis I take the matter no further and Iput it no higher than that. Our submission will be the standard £5,000 cap should apply.

28.MRS JUSTICE LANG: And on the standard directions?

29.MR WARREN: Standard directions we are content with, yes.

30.MRS JUSTICE LANG: I am not quite sure to what extent this affects you, but is there anything you want to say?

31.MR KATKOWSKI: Standard directions are fine my Lady, and the rest of it does not really affect me because the second set of costs in a substantive hearing obviously is not going to happen. Isay nothing about the PCO.

32.MRS JUSTICE LANG: Iam willing to make aprotective costs order, it is appropriate given the nature of the case. Iam willing on the basis of the claimant's witness statement to cap her costs at £2,000. Ithink it would be unreasonable to reduce it to nil. The cap for the defendant should be £35,000. Have either of you addressed the question of VAT and whether those figures are inclusive or exclusive of VAT?

33.MR STOOKES: My Lady, following the case of Warley v Wealden District Council they should be plus VAT. The reason being that any VAT that is claimed is on behalf of the government and it gets paid straight to the government.

34.MRS JUSTICE LANG: So the order should read £2,000 plus VAT and £35,000 plus VAT?

35.MR STOOKES: Yes, my Lady.

36.MRS JUSTICE LANG: Very well. The Associate, with my input, will be able to draw up anorder reflecting all these matters which will also include the standard directions. Thank you very much.

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