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Planning appeal costs awards

Cutbacks iStock 000013353612XSmall 146x219What are the recoverable costs of a self-represented party in a planning appeal? Brendon Lee explains.

It is common place these days for an Inspector or the Secretary of State to award costs on a planning appeal where it has been determined that a party has behaved unreasonably and such behaviour has directly caused another party to incur unnecessary or wasted expense in the appeal process.

However, such award can only address the principle of whether costs should be awarded in full or in part, and not the amount. The National Planning Practice Guidance clarifies that the amount is to be settled subsequently between the parties or, where parties cannot agree on a sum, assessed by the Senior Courts Costs Office.

The assessment of the reasonableness of professional costs is well established. But what costs can a party claim when acting for themselves during the planning appeal process without instructing professionals? Can they claim costs for their personal time and labours?

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The statutory powers to award costs

Since April 2009 an Inspector and the Secretary of State has had powers to make an award of costs for all forms of planning appeal procedures (having previously only be available for local inquiries). Such power is provided by sections 322 and 322A of the Town and Country Planning Act 1990 which enables cost ordering powers under section 250(5) of the Local Government Act 1972 to apply to planning appeal procedures. Section 250(5) provides that:

“the Secretary of State may make orders as to the costs of the parties at the inquiry and as to the parties by whom the cost are to be paid, and every such order may be made a rule of the High Court on the application of any party named in the order.”

The problem is that “costs” is not defined in any of the aforementioned Acts. So what are the costs of a self-represented party?

The common law position

It is a long established principle at common law that a self-represented party in legal proceedings is not entitled to the cost of their time and labours. The general principle arose from the decision of the Court of Appeal in The London Scottish Benefit Society v Chorley Crawford and Chester (1884) 13 QBD 872. This case concerned self-represented solicitors and the question as to whether they were entitled to recover costs for their time and labours. Bowen LJ expressed the reasoning for the general principle as:

“professional skill and labour are recognised and can be measured by the law; private expenditure of labour and trouble by a layman cannot be measured. It depends on the zeal, the assiduity, or the nervousness of the individual.”

The Court of Appeal however found that there was an exception to the general principle for self-represented solicitors finding it would be absurd to allow costs for the same work to be undertaken by another solicitor and not to allow costs for a self-represented solicitor.

Some decades later the general principle was revisited and confirmed in Buckland v Watts [1970] 1 QB 27. Sir Gordon Willmer however further clarified the principle saying:

“Other professional people, who become involved in litigation and conduct their own cases, may recover something in respect of their own professional skill in so far as they qualify as witnesses and are called as such.”    

This exception was supported by Warren J in Sisu and Ors v Tucker and Ors [2005] EWHC 2321 where he held that a litigant in person, even if a professional (and he was not a solicitor) could not recover costs in respect of his time other than on matters within his own professional expertise and which required the attendance of an expert.

Statutory Powers

Following the Buckland case, came the enactment of the Litigation in Person (Costs and Expenses) Act 1975 (LiP Act). It provides that where, in certain specified legal proceedings, any costs of a litigant in person are ordered to be paid by any other party to the proceedings then (subject to rules of court) it is allowed to include such sums in respect of any work done by the litigant in the proceedings.

The specified legal proceedings are limited. The LiP Act only applies to the English courts, the First-tier and Upper Tribunal, and any other court or tribunal specified in an order made by the Lord Chancellor. Currently Rule 46.5 of the Civil Procedure Rules (CPR) sets out the rules of the civil courts in relation costs for a litigant in person.

However, neither the LiP Act nor the CPR applies to planning appeal proceedings.

Section 250(5) to be interpreted in accordance with the common law

There has been no judicial consideration of the interpretation of section 250(5) or self-represented costs generally in respect of planning appeal procedures. However, similar cost provisions have been considered in non-LiP Act jurisdictions. In Nader (trading as Try Us) v Customs and Excise Commissioners [1993] STC 806 CA the Court of Appeal had to consider the application of self-represented claimants before the VAT Tribunal. The relevant power to grant costs arose under Rule 29(1)(a) of the VAT Tribunal Rules 1986 (as amended) which provided:

“A tribunal may direct that a party or applicant shall pay to the other party to the appeal or application – (a) … such sum as it may determine on account of the costs of such other party”

Like Section 250(5) this power did not define the meaning of ‘costs’.

The Court of Appeal in Nader found that Rule 29 should be construed as giving the tribunal power to award costs which were confined to such sums as would be recoverable at common law, and that for a litigant in person to succeed it would have to be shown that the law on costs in the Tribunal falls by statutory powers into a different category from that of the common law position. Where there is no such statutory empowerment, whether by the LiP Act, CPR or otherwise, the common law position prevails. The Court of Appeal found that the common law position applies to Rule 29.

The Nader decision on Rule 29 was followed in 2008 by the London Tribunal Centre case of Melina Serpes v The Commissioners for Her Majesty’s Revenue & Customs LON/2000/1392. In this case the tribunal re-considered the interpretation of Rule 29 and whether such interpretation had changed since Nader. Noting Nader and the London Scottish case, the tribunal found that self-represented litigants cannot recover costs for their time and labours under Rule 29, and to do otherwise would be to re-write the legislation as opposed to interpreting it.

Recently the Court of Appeal, in R (Bar Standards Board) v Disciplinary Tribunal of the Council of the Inns of Court and Another [2016] EWCA Civ 478, looked at another similar case regarding self-represented litigants’ costs in respect of non-LiP Act legal proceedings before the Bar Disciplinary Tribunal. In this case the relevant legislation was Rule 31 of the Bar’s Disciplinary Tribunal Rules 2009 which provided:

“A Disciplinary Tribunal shall have power to make such Orders for costs, whether against or in favour of a defendant, as it shall think fit”.

Like Section 250(5) this power did not define the meaning of ‘costs’.

The Court of Appeal found that the common law principle applied. McCombe LJ stated:

“If the CPR do not apply, the best guidance for the tribunal in assessing costs remains the common law as stated in the London Scottish case.”

Accordingly, it would seem that without express enacting powers whether by amendment to the LiP Act, section 250(5) or the TCPA, then self-represented party’s costs on planning appeals should be assessed in accordance with the common law.

Self-represented companies

The common law principles of a self-represented party will apply equally to incorporated parties represented by a director or employee. This would also cover in-house expertise. That is to say, an in-house solicitor would be subject to the London Scottish exception (and their costs recoverable). Likewise, in-house experts would be an exception (and their costs recoverable) but in respect only of their time on matters within their professional expertise.

Summary

The costs recoverable by a self-represented party under a costs award from a planning appeal are limited to their reasonable out-of-pocket expenses. No costs can be claimed for their time and labour. The only exceptions are self-represented solicitors/barristers and professionals (but only where providing relevant expert opinion).

When negotiating, or contesting an assessment of, the quantum of a costs award it is recommended that parties consider the lawful recoverability of the costs claimed where they relate to a self-represented party.

Brendon Lee is a solicitor at Buckles Solicitors. He can be contacted on 01733 888920 or This email address is being protected from spambots. You need JavaScript enabled to view it..

 

 

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