The case is of wide-ranging significance in regulatory appeals. In particular, the Supreme Court has overturned the Court of Appeal’s decision in that case and held that:

“There is no generally applicable principle that all public bodies should enjoy a protected status as parties to litigation where they lose a case which they have brought or defended in the exercise of their public functions in the public interest” (SC judgment para. 97)

After giving detailed consideration to the line of authority deriving from Bradford MDC v Booth [2000] 164 JP 485, the Supreme Court found that the principle derived from that line of cases goes no further than establishing that, where a public body is unsuccessful in regulatory proceedings, an important factor that a court or tribunal exercising an apparently unfettered discretion should take into account is the risk that there will be a chilling effect on the conduct of the public body if costs orders are routinely made against in in those kinds of proceedings, even where the body has acted reasonably in bringing or defending the application.

The Court did, however, indicate that it is not necessary to consider the question of whether a chilling effect exists afresh each time that it exercises its discretion. That the courts have already made the assessment that there is a general risk of a chilling effect in the kind of proceedings with which a case is concerned, is sufficient to establish such an effect in that category of cases and analogous proceedings. Even in such cases, however, the existence of a chilling effect is no more than a relevant material consideration, to be taken into account with all others in reaching a decision on costs.

The case is an important one for all those who represent regulated entities to be aware of, and going forward is likely to have significant implications for the determination of costs applications in regulatory proceedings.

Charles Streeten acted for the 4th Intervener (Oakridge Farms Limited), who supported the successful appellants, instructed by Nathan Taylor-Allkins of Woodfines LLP

A copy of the judgment is available here.