The claimant sought judicial review of the decision of the defendant local planning authority to grant planning permission to her neighbour, the interested party. The defendant subsequently confirmed that it would concede the claim on the ground of a breach of the duty to give reasons. The interested party informed the defendant that it would not contest the claim but would not sign a consent order either. As negotiations were then taking place between the claimant and the defendant regarding the contents of the consent order, that order had not been submitted to the court when the claimant’s application for permission was refused by the judge on consideration of the papers. The claimant filed a renewal application. The interested party’s planning consultant wrote to the court contending that permission for judicial review should be refused and that the planning permission should not be quashed unless agreed by all parties, including the interested party, or at a substantive hearing. In the meantime, the defendant declined to sign a consent order, citing the fact that the interested party had urged it not to since it was now defending the claim and the matter could therefore no longer be disposed of by consent between the other parties. The claimant was granted permission to proceed with the claim for judicial review at an oral hearing. The defendant did not participate in the hearing, but the interested party was represented and resisted the grant of permission. Subsequently, the interested party confirmed to the defendant that it would sign a consent order, and a consent order was agreed between all parties and sealed by the court. In respect of the issue of costs which fell to be determined, the claimant submitted that her costs should be paid by the defendant and that in the alternative, costs incurred up 5 February 2019, the point at which the interested party sought permission to serve an acknowledgment of service should be paid by the defendant, and thereafter by the interested party. The defendant submitted that it should only be responsible for the costs incurred in pursuit of the claim against it, but not for costs incurred in dealing with the interested party. The interested party contended that it had not taken the risk of defending the defendant’s decision, that once permission had been refused on the papers, an oral hearing was bound to follow to allow proper scrutiny of an application to overturn that decision and that it could not be said that the actions of the interested party had caused an increase in costs. The judge ordered the defendant to pay the claimant’s costs up to 5 February 2019 and for the interested party to pay her costs incurred after that date. The interested party appealed against that decision, contending that where permission to proceed with a claim for judicial review had been refused on the papers, a hearing on the renewed application for permission was inevitable and required by the rules, and that, in particular reliance on the terms of CPR r 54.12(3), the Civil Procedure Rules did not permit permission to be granted at that stage without a hearing.
On the appeal—
Held, appeal dismissed. Where permission to apply for judicial review had been refused on the papers, an application to renew the application had to made within the time period specified by CPR r 54.12(4), although there was no requirement for a hearing to then be held, since (i) rule 54.18 provided that the court “may decide the claim for judicial review without a hearing where all the parties agree” and the phrase “claim for judicial review”, as defined by CPR r 54.1(2)(a) was a broad one and was not necessarily confined to the substantive hearing in a claim for judicial review but referred to every step of the procedure from the time when the claim was first commenced until it was finally disposed of, and (ii) CPR r 40.6, which applied where all the parties agreed the terms in which a judgment should be given or an order should be made, provided that any party could apply for a judgment or order in the terms agreed and that the court could deal with such an application, and there was nothing on the face of those provisions to indicate that claims for judicial review were excluded and no good reason why they should not permit a consent order to be made in circumstances where, although permission had been refused on the papers, the parties were agreed that permission should be granted without a hearing. That construction of the Civil Procedure Rules was reinforced by the overriding objective, the need to determine cases justly and at proportionate cost. As CPR r 1.4(1) made clear, the court must further the overriding objective by actively managing cases. Active case management included helping the parties to settle the whole or part of the case and, where appropriate, dealing with the case without the parties needing to attend at court. That also accorded with good practice in the Administrative Court. In the present case, the reasons the judge gave for the exercise of her discretion in making the costs were more detailed than usual and commendable but it was important that the task of busy judges dealing with costs applications should not become over-complicated or technical. In the circumstances the judge did not err in principle and her decision was not unjust or perverse. She was entitled to conclude that from 5 February 2019 the interested party had taken on the burden of defending the claim, and to take a common sense and realistic view of the costs, doing what she described as “broad justice”, set off some of the claimant’s costs of dealing with the interested party before 5 February 2019 against those incurred after that date but which did not concern the interested party (paras 28, 30–34, 36–39, 44–45, 46, 47).
Timothy Straker QC (instructed by Sharpe Pritchard llp) for the interested party.
Victoria Hutton (instructed by Attwells Solicitors) for the claimant.
Robin Green (instructed by Solicitor, Mid-Suffolk District Council) for the local authority.