A party’s conduct is a factor in the court deciding whether to award costs on the indemnity basis rather than the standard basis

A further issue arose in Cash v Wokingham Borough Council (see PP 2014/183) in relation to costs. The claimant sought to persuade the court that an enforcement notice issued by the local planning authority (LPA), and served on him in 2009 as owner of the relevant land, was rendered a nullity by particular circumstances. He chose to proceed under CPR Part 8 (Alternative Procedure for Claims) rather than under CPR Part 54 (Judicial Review and Statutory Review). In R v Wicks [1997] 2 PLR 97, the House of Lords recognised that the preclusive provisions of section 285 of the Town and Country Planning Act 1990 (“the Act”) – relating to the challenges to the validity of an enforcement notice – still left for the court a residual category of grounds of challenge that fell outside the scope of the statutory appeal to the secretary of state provided for in section 174 of the Act. (Examples of such grounds that are commonly given include bad faith, bias, procedural impropriety and even matters relevant to the issue of expediency.) But such a challenge has to be by way of a claim for judicial review. The court, in the present case, pointed out that the provisions of CPR Part 54 are a valuable protection for public authorities, and that attempts to circumvent those protections by bringing an ordinary civil claim amount to an abuse of process. It held that this was what had occurred, and further that the claim was completely out of time and without merit. Counsel for the LPA applied for her client’s costs to be paid on the indemnity basis, rather than on the usual standard basis. (Rule 44.3(3) of CPR Part 44 (General Rules about Costs) provides as follows: “Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party”.) The judge noted that rule 44.2(4) states that the court, in deciding what order to make about costs, will have regard to all of the circumstances, including the conduct of the parties. Rule 44.2(5) provides that the conduct of the parties includes conduct before as well as during the proceedings, and whether it is reasonable for a party to raise, pursue or context a point. Accordingly, and in light of her earlier findings, she concluded that it was appropriate to order payment of the LPA’s costs on the indemnity basis.   John Martin is a planning law consultant