COST BITES 81: A SUCCESSFUL APPELLANT GETS THEIR COSTS: THE COURT WOULD NOT GIVE A “BLANK CHEQUE IN RELATION TO PAYMENT ON ACCOUNT OF COSTS

There are two matters of interest in the Court of Appeal judgment in  R (On the Application Of) v Thanet District Council (Re Costs) [2023] EWCA Civ 526.  Firstly the court’s rejection of an argument that the successful party had won on a case not pleaded and should not get their costs.  Secondly the way in which the court dealt with an application for a sum on account of costs when the successful party had not, in fact, filed a schedule of costs.  The court refused to make any order that represented a “blank cheque”.

“There should be an order for a payment on account of costs, but the order proposed by SO is a blank cheque. It is an order for payment of a proportion of whatever sums her lawyers choose to insert on a schedule which they have, apparently, yet to draw up. This is not satisfactory.”

THE CASE

The appellant had been successful in her application in relation to an issue over her parking a vehicle on certain land.  A question arose in relation to costs. The appellant argued that she has been successful.

THE RESPONDENT’S CASE

1. Thanet District Council submits that it succeeded on all pleaded issues in the High Court, and lost on only one issue which was actually raised by Mr. Elleray KC at the hearing before him and was not pleaded at all. It therefore submits that the costs order made by the High Court should stand, and it should have its costs of those proceedings. It further contends that it should be entitled to set off its entitlement to costs against its liability to SO in respect of the proceedings in the Court of Appeal.

THE COURT OF APPEAL DECISION

The Court of Appeal rejected the respondent’s argument on this issue.

1. 1. It is not, in my judgment, true that the issue on which SO succeeded was first mentioned by the judge at the hearing on 28 June 2022. While it had not been clearly stated in terms in the Amended Statement of Facts and Grounds, it is inherent in Ground 1 that SO was relying on the fact that she entered the site with permission and she resisted the contention of the Thanet District Council that the permission had lapsed. Ground 1 was summarised as follows:-

“The decision to issue a s 77 CJPOA 94 is unlawful as the Claimant and all other occupiers of the Land entered it with the consent of the owner and the Defendant has misdirected itself to its powers under section 77 CJPOA 94 and has failed to have any regard to relevant guidance and circulars as to managing and evicting Travellers from the Land. The Land is owned by the Government and there is no evidence that the relevant Secretary of State has been consulted with or has withdrawn any consent to occupy the Land. It is submitted the service of the direction on or around the 28 September 2021 and the 30 November 2021 is unlawful and irrational as no reasonable Defendant properly directing itself to its powers, circulars and guidance would have served any such s 77 CJPOA 94 direction on all occupiers on the Land in all the circumstances of this claim.”

1. 1. That summary would be improved if a full stop were inserted immediately after the second reference to section 77 CJPOA 94.

1. 1. Paragraphs 53 and 54 of the very long Amended Statement of Facts and Grounds say this:-

“53. The unlawfulness of the Defendant’s action is that the Land appears owned by the Crown and in respect of the Claimant and her extended family she was permitted to occupy the Land with the consent of the occupier. (see s 77(1)(c) CJPOA 94.

54. It is submitted it is unlawful for the Defendant to give a direction under s 77 CJPOA 94 when the Claimant and other occupiers of the Land has been given the consent of the occupier to reside in vehicles on the Land. It is submitted this is the case here. It is clear the Claimant and her family would not be present on this Land but for the actions of the Defendant relocating them there and failing to provide an alternative suitable site.”

1. 1. The response alleged that the consent had been temporary and had now lapsed, but said nothing about whether SO had been told this, and whether that mattered.

1. 1. A Reply was served on behalf of SO which did not take matters further, but reiterated that SO was an authorised occupier and claimed that section 77 directions could not be issued against authorised occupiers.

1. 1. For these reasons I consider that the legal effect of the consent to occupy the Land as at the date when Thanet District Council decided to issue the section 77 directions was clearly in issue, although it is true that SO’s representatives did not clearly articulate the point on which they later succeeded.

1. 1. It is true that SO raised a number of unsuccessful (indeed unarguable) challenges, and it is also true that her documents are not as clear and focussed as they should be. However, she did establish that Thanet District Council had failed to issue any effective section 77 direction against her and therefore that her continued occupation of the Land after November 2021 was not a criminal offence. This makes her the successful party and she is entitled to a costs order in her favour. This should be an order that she is entitled to 60% of her costs in the High Court in addition to her costs of the proceedings in the Court of Appeal. The deduction reflects the issues on which she failed.

1. That being so, no issue as to set-off arises. I would have made this order whether she was privately or publicly funded and it is not necessary to consider any of the authorities cited.

A PAYMENT ON ACCOUNT OF COSTS

The successful appellant sought a payment on account of costs. However no schedule of costs had been filed.  The court set out a mechanism whereby the payment could be carefully regulated.

1. 1. There should be an order for a payment on account of costs, but the order proposed by SO is a blank cheque. It is an order for payment of a proportion of whatever sums her lawyers choose to insert on a schedule which they have, apparently, yet to draw up. This is not satisfactory. Instead, the order will be as follows:-

5. The court will make an order for a payment on account of costs in favour of the Appellant pursuant to CPR 44.2(8) and gives directions at (i)-(iii) below for the determination of the amount.

i) The Appellant will serve and lodge with the court two costs schedules, one covering the costs in the High Court and the second the costs in the Court of Appeal within 7 days of receipt of this Order.

ii) The Respondent may file and serve comments on the schedules within 7 days of their receipt.

iii) In default of agreement as to the payment on account of costs, the court will consider the schedules and comments without a hearing and will direct the amount of the payment on account and the date by which it must be made.