Neutral Citation Number:  EWHC (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Wednesday, 27 March 2013
B e f o r e:
MRS JUSTICE LANG
THE QUEEN ON THE APPLICATION OF OLDFIELD
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
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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
1. MRS JUSTICE LANG: I am grateful to counsel for their impressive skeleton arguments and oral submissions. I conclude that grounds 1 and 2 are arguable for the reasons set out in the claimant's pleadings and skeleton. I will say no more about my views, as it is a matter 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 the court to take in considering a challenge to a decision 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, I consider 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, I consider it is arguable and I identify the place in which I consider those points have been set out by the claimant in the grounds at page 20, paragraphs 34 to 36, but after that I consider that the grounds are moving on to the broader challenge to the appropriate test, which in the light of the existing authorities I consider to be unarguable.
3. I also 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 an application for a protective costs order, and I will deal with that and I also 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, I am content for the standard points and directions.
6. On the application for a PCO, the defendant said that he has no objection to a PCO. There was silence from the second interested party. I suspect 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 a PCO with nil liability for the claimant. This is at paragraph 43 of the skeleton argument, and that rather than in accordance with the new amendment rules of having a cap at £5,000 for the claimant's costs and £35,000 for the reciprocal cap. We ask for a cap set at nil, the reason being my client simply cannot afford a cap 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 I got the new rules?
9. MR STOOKES: My Lady, they are either at tab 3 or 4. They are at tab 3. 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, a reciprocal 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 I think I have not
16. MR WARREN: If I may assist, my Lady? At the moment these amendments are not in force. So your discretion is as previously.
17. MR STOOKES: I am 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 a cap of £2,000 or am I misremembering 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 I understood the position to be that the traders certainly were not I am 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. I will only say that. The original application was for a £2,000 limit there.
26. MRS JUSTICE LANG: I will just hear from other counsel.
27. MR WARREN: My Lady, the Secretary of State's position is (i) no objection to a PCO 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 I appreciate 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 I put 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. I say nothing about the PCO.
32. MRS JUSTICE LANG: I am willing to make a protective costs order, it is appropriate given the nature of the case. I am willing on the basis of the claimant's witness statement to cap her costs at £2,000. I think 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 an order reflecting all these matters which will also include the standard directions. Thank you very much.