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Supreme Court Grants Permission in Public Law Costs Case

Ned Westaway

The Supreme Court (Lords Kerr, Carnwath and Briggs) has granted permission to appeal from the Court of Appeal’s decision in CPRE - Kent Branch v SSCLG [2019] EWCA Civ 1230; [2020] 1 WLR 352.  The case concerns the proper approach to costs that should be applied by the courts when refusing permission for public law challenges, in particular (i) should a second defendant and/or interested party generally be awarded its costs of acknowledging service (in addition to the principal defendant) and (ii) what is the role of proportionality.

The appellant argued in the Court of Appeal that the starting point should be the principle articulated by the House of Lords in Bolton MBC v SSE (Practice Note) [1995] 1 WLR 1176, i.e. that an additional respondent will not normally be awarded costs “unless he can show that there was likely to be a separate issue not covered by [the main respondent] or unless he has an interest which requires separate representation”.  However Bolton pre-dated the CPR and related to costs at a hearing.  The Court of Appeal held that multiple sets of costs at the permission stage under the CPR should generally be awarded (subject to considerations of proportionality), referring to its own decision in R (Mount Cook Land Ltd) v Westminster CC [2003] EWCA Civ 1346.

The appellant also pointed to the inconsistent practice of the lower courts on this point of principle.

The appeal will be the first opportunity for the Supreme Court to consider the approach to costs in public law litigation, and the first case on the topic at this level since Bolton.

Ned Westaway, instructed by Richard Buxton Solicitors, is acting for the appellant.