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Supreme Court Judgment in CPRE Kent

Ned Westaway
Esther Drabkin-Reiter

The Supreme Court has today handed down judgment in the appeal on costs in planning statutory challenges in CPRE (Kent) v Secretary of State for Communities and Local Government [2021] UKSC 36 (judgment here and press summary here), for which permission to appeal was granted in March 2020 (see here).  

The case concerned the principle of whether multiple awards of costs in statutory and judicial review cases should be awarded where a claim is refused permission to proceed on the papers.

The Supreme Court declined to consider the substance of the appeal on the basis that “the Court of Appeal has primary responsibility for monitoring and controlling developments in practice … including principles as to how lower courts should exercise their discretion in relation to costs” (para.18).  This approach followed the Supreme Court’s decision in the case of R (Gourlay) v Parole Board [2020] UKSC 50; [2020] 1 WLR 5344.  

Lord Hodge, giving the leading judgment, set out some of the Appellant’s arguments, however as they quintessentially related to matters of practice, and the Supreme Court did not identify an error of law in the Court of Appeal’s decision – which it saw as “guidance as to practice” – the appeal was dismissed.

At para.30 of his judgment, Lord Hodge noted:

“In so far as CPRE-Kent advance arguments of policy, I observe that the courts in In re Leach (Collins J at para 18), Mount Cook (Auld LJ at para 75) and R (Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583; [2006] 1 WLR 1260 (Carnwath LJ at para 46) have called on the Civil Procedure Rule Committee to address the procedure for applications for costs at the permission stage and in the latter judgment the principles to be applied. That Committee can make rules, or the Master of the Rolls can make an appropriate practice direction, or the Court of Appeal can review its guidance on practice. Absent an error of law of general public importance, it would not ordinarily be appropriate for this court, for the reasons set out by Lord Reed in Gourlay at para 36, to intervene in a decision on costs, and there is no basis for intervening in this case.”

Ned Westaway and Esther Drabkin Reiter (instructed by Richard Buxton Environmental & Public Law appeared for the appellant, CPRE Kent.