• news-banner

    Expert Insights

Unsuccessful claimants may have to pay multiple defendants’ costs

A recent decision of the Supreme Court in CPRE Kent v Secretary of State for Communities and Local Government [2021] UKSC 36 has clarified that unsuccessful challengers of planning decision may have to pay multiple defendants’ costs.

CPRE Kent sought permission for statutory review of the decision of Maidstone Borough Council to adopt its Local Plan following a finding by an inspector that, subject to modifications, the Local Plan was “sound”. The Local Plan included a policy which allocated a large site at Woodcut Farm for mixed employment floor space. Roxhill Developments Limited was the promoter of the proposed development at Woodcut Farm and was an interested party in the review.

The claim form was served on SSCLG (the first Respondent), the Council (the second Respondent) and Roxhill, in which (amongst other things) CPRE requested that its cost liability be capped at £10,000 in accordance with CPR Part 45 (the Aarhus Cap). Lang J refused permission to apply for statutory review but accepted that the claim was subject to the Aarhus Cap. On 31 January 2018 Lang J ordered CPRE to pay the costs of SSCLG, the Council and Roxhill in preparing and filing their acknowledgments of service (AoS) and summary grounds of defence which reached the full limit of the Aarhus Cap.

CPRE objected to the award of more than one set of costs, and to the quantum of costs ordered, arguing that it was wrong in principle for costs at the permission stage to absorb the entirety of the Aarhus Cap. HHJ Evans-Gordon affirmed Lang J’s award of costs in April 2018. CPRE sought permission to appeal to the Court of Appeal which was granted in July 2019.

Coulson LJ in the Court of Appeal rejected CPRE’s submissions concluding that there is no general rule in planning cases which limits the number of parties who can recover their reasonable and proportionate costs of preparing those documents, if the application is refused at permission stage.  Coulson LJ helpfully summarised the costs principles which apply to both judicial review and statutory review cases as follows:

a)    When permission to seek review is refused, a claimant may be liable to pay more than one defendant and/or interested party for their costs of preparing and filing their AoS and summary grounds.

b)    It is not necessary for the additional defendant(s) and/or interested party to show "exceptional" or "special" circumstances in order, in principle, to recover those costs.

c)    However, to be recoverable, those costs must be reasonable and proportionate. So, for example, if there is an obvious lead defendant and the court was not assisted by the AoS or summary grounds of an additional defendant(s) and/or interested party, then the costs of that additional defendant(s) and/or interested party may not be proportionate and so will not be recoverable. That is an assessment which is case-specific and not susceptible to more general rules.

On appeal, the Supreme Court found that the Court of Appeal’s ruling revealed no error of law. In reaching a conclusion, Lord Hodge set out previous case law supporting the view that an unsuccessful claimant should bear the reasonable and proportionate costs incurred by defendants and interested parties in preparing and filing their AoS and summary grounds of resistance given that they are obligated to do so under the CPR if they wish to participate in the proceedings.

The Supreme Court’s ruling will likely encourage those considering applying for review of a planning decision to think twice before taking action in view of the risk of substantial costs even if the claim is refused at the first stage.

Our thinking

  • Mental Health Management

    Nick Hurley

    Events

  • Arbitration Act 1996: Law Commission recommends limited changes

    Richard Kiddell

    Insights

  • Charles Russell Speechlys advises Nortal on its acquisition of Questers

    Hamish Perry

    News

  • Family and Employment law assistance in legal advice deserts

    Sarah Farrelly

    News

  • Property Patter: the latest on the Building Safety Act

    Richard Flenley

    Podcasts

  • James Souter writes for City AM on Meta pulling out of its London office

    James Souter

    In the Press

  • Charles Russell Speechlys advises Puma Private Equity on its £3.5 million investment into TravelLocal

    David Coates

    News

  • Georgina Muskett and Karin Mouhon write for Property Week on the importance of preparation when proposing site redevelopments

    Karin Mouhon

    In the Press

  • China Daily, and other titles, quote Silvia On on trends affecting Chinese HNWIs

    Silvia On

    In the Press

  • The Evening Standard quotes Rose Carey on the increase in visa fees

    Rose Carey

    In the Press

  • Spears quotes Piers Master on the potential exodus of UHNW non-doms from the UK ahead of a potential Labour government

    Piers Master

    In the Press

  • Charles Russell Speechlys advises Zenzero’s management team on its majority acquisition by Macquarie Capital

    Mark Howard

    News

  • David Savage writes for Construction News on the upcoming building-control overhaul

    David Savage

    In the Press

  • Updates and points to note in relation to buy-to-let residential properties

    Twiggy Ho

    Insights

  • Investment Week quotes Julia Cox on the proposed scrapping of inheritance tax

    Julia Cox

    In the Press

  • Heritage property and conditional exemption

    Sarah Wray

    Insights

  • Property Week quotes Cara Imbrailo on Rishi Sunak scrapping MEES requirements for residential landlords

    Cara Imbrailo

    In the Press

  • The Financial Times quotes Emma Humphreys on UK rental costs

    Emma Humphreys

    In the Press

  • Stamp Duty Refund - New Impetus To Eligible Incoming Talents

    Ian Devereux

    Insights

  • City AM quotes Gareth Mills on the CMA’s new set of principles for regulating AI

    Gareth Mills

    In the Press

Back to top