Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 148
P1393/10	OPINION OF LORD McEWAN in the Petition of DULCE PACKARD AND OTHERS Petitioners; for Judicial Review of a decision of the Scottish Ministers dated 9 November 2010 to grant consent under the Electricity Act 1989 and deemed planning permission under the Town and Country Planning (Scotland) Act 1997 as amended ­­­­­­­­­­­­­­­­­________________

Petitioners: J D Campbell QC; DLA Piper Scotland LLP

First Respondents: Cameron; SGLD

Second Respondents: Martin QC; Burness LLP

7 September 2011

[1] The motions before me today, 3 August 2011, were for expenses against the petitioners. The petitioners conceded expenses on the normal scale in favour of the first (successful) respondents (the Scottish Ministers) and the expenses of today's appearance. I will award both of these in favour of the Ministers.

[2] The argument took place over the motion for expenses by the second respondents (North British Wind Power) who had also been successful. They also moved for an increased fee in terms of Rule of Court 42.14(3). The petitioners opposed, in principle, any award of expenses, and in particular any increased fee. I was referred to a number of authorities which I now list:

·       Bolton M.D.C. v Secretary of State for the Environment [1995] 1 WLR 1176;

·       Bell v East Renfrewshire Council 2006 SLT 104;

·       Renewable Energy Systems Limited v The Moray Council [2007] CSIH 2 ("R.E.S.");

·       King Group etc. v Sainsbury [2010] CSOH 11;

·       R (Corner House) v Trade and Industry Secretary [2005] 1 (11) WLR 2600.

[3] I should say a little about the petition for Judicial Review which I heard in March of this year. The documents, authorities and other productions were many and detailed. Three large boxes had to be taken home by me. The case was set down for four days, did not finish, and as a pressing matter two days in the following week were needed. I agreed as a matter of urgency to advise the case by the end of May, and did so. That was to allow the restart of certain preparatory work in relation to a road and a small building. I refer to what I have already written in my opinion and add only this. The case was of major importance not only to the parties but also in the public interest. It followed upon a second planning inquiry into the same subject-matter (a proposed wind farm) which had been bitterly contested, and at which the second respondents had been successful. Apart from seeking judicial review on a number of grounds the petitioners sought interdict and interim interdict against any works starting at the end of 2010. I did not hear that matter, and the point was settled at the time on an undertaking.

[4] With that introduction I now deal with the arguments presented. Mr Martin moved for expenses and the additional fee on various grounds. He said that five issues were argued (some of the petition having been abandoned) and a number of his pleas were sustained at the end of the day. The arguments on mora and personal bar were unique to his clients, and were not dealt with by the Scottish Ministers. These pleas had been upheld. Also the matter of interdict and expenses affected only his clients.

[5] Counsel took me to Bolton M.D.C. and the speech of Lord Lloyd at 1178. It had first to be noted that this case concerned third appearance costs whereas the present was first appearance. There were two special factors in the present case. The petitioners had sought interdict only against his clients and although matters were held on an undertaking, the issue could re-emerge if they had lost at judicial review. His clients were entitled to present their own arguments to protect their positions. Next, the scale of development was very important. There were proposed 48 turbines. The national interest was involved. There were financial consequences. An adverse decision would mean that these respondents could not carry on with their plans.

[6] He next referred to Bell which he distinguished. That case concerned a policy and Messrs Wimpey who were intervening did not have any consent to protect. Here his clients had, and stood to lose it at review. He then referred me to R.E.S. which he said was a "first stage" type of case and was directly in point. In the present case his clients had put forward, quite properly, separate points on radar, conditions and actual or perceived bias. The case of King Group was like Bell. It was a challenge to a policy which was unsuccessful. In the present case the petitioners had put lots of facts before the court. Many of these were in documents which involved named persons within the second respondents. They had a right to be heard about all of these, and a duty to the court to explain them in the correct light.

[7] As to the additional fee, Mr Martin adhered to his written submissions attached to the motion sheet. He added, the development was very large involving millions of pounds. The interdict rendered the whole review as urgent, and important work had to be done around Christmas 2010 when staff were on holiday. The review involved six separate grounds and a degree of specialised knowledge was needed to interpret the Electricity Act which was not well known. The whole mater was primarily for the Auditor. The expenses of today should also be awarded.

[8] In his reply speech he added this. His clients held a permission which was a lawful valuable commodity and one which they were entitled to protect in argument. If the review had succeeded there was no clear way forward. That is why the argument about mora was vital. The issue of what was to follow a successful review had been his first argument. Counsel touched on protected expenses orders in Scotland and in England and said that here they were not in point. He referred in passing to Corner House, another case called Road Sense, and a case concerning a Fatal Accident Inquiry (the case is McArthur 2006 S.L.T. 170) and Article 9 of the Aarhus Convention. Almost all of the petitioners were wealthy especially the fifth petitioners. The petition was wholly different to what happened at the Inquiry.

[9] In his reply Mr Campbell conceded the expenses to the Ministers (first respondents) and continued, arguing firstly that the second respondents should not be awarded expenses at all or (said in his reply speech) that any award should be restricted to less than 50%. He referred me to the Record and pointed out that he had argued five points. He accepted that he had sought interdict, but that matter was settled on a short undertaking which was then relaxed to take account of road widening and the building of a concrete platform. The interdict did not play a large part in the case.

[10] His first main point was that the outcome had turned on what was said by counsel for the Ministers and was not influenced by Mr Martin's argument. His clients chose to intervene and merely adopted what was said by the Ministers. He referred to various passages in my opinion on the case. Mora and personal bar were peripheral issues. What was important was the "litany" of correspondence. After looking at Bolton M.D.C. he pointed out that at the second inquiry legal submissions were made to the reporter and later directly to the Ministers. The second respondents did not need separate representation since the issues at review were not related to the development. Counsel submitted on a separate point that as his clients would never have got interdict to stop the second inquiry there was no need to argue mora and personal bar. Again under reference to Bolton he asked what would have happened if the review had been successful. It would then have been for the Ministers to decide what to do. The case might have gone to another Minister, or to another Reporter, or to a judge or to an English judge. The second respondents would not lose their consent but only their chance to do the works at a particular time, i.e. in 2011.

[11] Counsel then looked at the other cases. Bell he said was correctly decided by the (then) Temporary Judge. Accepting that the second respondents were a developer on site he distinguished King as being rather different and not in point. The proper question with multiple expenses was always to ask what was determinative of the issues. Under reference to R.E.S., he asked where was the divergence of interest. Here there was none. The second respondents had no direct interest to offer the opposition they did. Mora was simply overlaid by bias and natural justice. Mr Campbell ended this chapter by saying that the Lord Justice Clerk had not in R.E.S. followed Bolton. That was important.

[12] Mr Campbell's second argument was that all that had been decided at the review were matters of public law rather than private right. Because of that, he said, as between the petitioners and the second respondents no expenses should be found due to or by either party. He then mentioned protected expenses orders in England and referred in passing to Corner House without fully discussing the case. He mentioned in passing the corresponding position in Scotland in a case called Road Sense v Scottish Ministers [2011] CSOH 10 but did not develop this point. He then moved to discuss the additional fee request.

[13] Counsel said no additional fee should be allowed. Under head (a), "complexity ... etc", he said the same solicitors were in both inquiries, and the same questions were argued both times viz policy, landscape and radar. Mr Campbell then appeared to say that only the review was complex. To the petition answers were quickly lodged. All the letters were lodged by the time of the second inquiry and everyone knew what the MOD were going to do. Under (b), "skill ... etc", he said there was nothing complicated about the Electricity Act. The second respondents had had a caveat against any interdict. Under (c), "... documents ... etc", he said the litigation was routine. The documents were just letters and e-mails and a few policy documents. Under (d), "... place and circumstances ...", he disputed that significant work had had to be done as the answers were lodged in February. Under (e), "... importance ...", and (f), "... value ... etc", he accepted that the matter was important but loss of the petition would only be loss of an opportunity in 2011.

[14] Let me now turn to look at the cases.

[15] Bolton M.D.C. was a case referred to at the review and dealt with by me in my opinion (see paragraph 60). As now cited again (as a Practice Note), it concerned third costs in the House of Lords where there was a separate representation but overlap of argument. There were a considerable number of parties. Lord Lloyd gave the principal speech. The court, he said, had to see that unnecessary costs were not incurred and where there was multiple representation the losing party would not normally be required to pay more than one set of costs, unless recovery of further costs is justified in the circumstances of the case (1178 B). Plainly there can be differences between first, second and third costs and if the interests of more than one respondent are identical only one order might be appropriate. His Lordship set out the proper approach at 1178 F/H to what is not a rule. It is important to ascertain if there is a separate issue which applies only to the developer and which requires separate representation. A second set of costs is more likely to be awarded at first instance third set costs are rarely justified.

[16] His Lordship then dealt with the facts of the case and pointed out (1179 A) that all the issues were capable of being covered by counsel for the Secretary of State. However, the special facts of the case allowed the view that the developers had a sufficiently independent interest to justify protection by separate representation. Importance was also attached to the exceptional scale of the development (the Trafford Centre in Manchester) and the importance of the outcome. There were also many objectors.

[17] In Bell a local authority as planning authority had adopted a particular policy in relation to a motorway service area and adopted it with their local plan. The Petitioner sought to have the policy quashed. Two other respondents (Wimpey and Carvill) had obtained outline planning permission and had an interest in the application. They entered the process and made separate submissions to the Temporary Lord Ordinary. However, his decision to refuse the petition was dependent only on what was said by the local authority. The two potential developers were only awarded expenses up to the date of their lodging answers.

[18] The King Group Ltd concerned certain non statutory guidance decisions made by a local authority in advance of a planning inquiry into retail development at a farm site. Sainsbury's had sought to review that decision but had failed. At the review, King Group, who had no input into the formation of the two decisions, chose to enter the process and made submissions. At that stage they only had an interest in the broad sense in the decision making of the local authority. They held no planning permission. Their submissions to the Lord Ordinary were supportive of the local authority but were not determinative of the issue involved or contributed significantly to the outcome.

[19] King now sought their expenses against the unsuccessful Sainsbury who had already conceded expenses to the local authority. Following R.E.S. the Lord Ordinary refused expenses.

[20] R.E.S. was a case like the present in the sense that it deals with first stage expenses. Against local authority (Moray) opposition a developer had succeeded before an inquiry Reporter. The local authority appeal to the Court of Session failed. The arguments for the Ministers and the developer seem to have been the same but the appeal raised issues about the merits of the proposal and the quality of the developers evidence. The court found that the developer had a direct interest to oppose any such criticism on appeal. At the end of the day that consideration justified a separate award of expenses to the developer.

[21] It seems to me that the Lord Justice Clerk followed the guidance in the practice note in Bolton while at the same time leaving a complete discretion to the Court where special circumstances might arise.

[22] I do not intend to deal with Corner House or any of the cases on protected costs or expenses. The cases were not properly cited to me, and in my opinion are not in point for the present purposes. Nor do I look at the Aarhus Convention.

[23] On the primary point, and applying the test in Bolton, I am satisfied that the second respondents in this petition had a sufficiently independent interest requiring protection so as to justify separate representation. In the first place they held a permission to develop in view of the Minister's decision following the second inquiry. It was a real right not a potential one or a peripheral interest. That distinguishes this case from cases like Bell and the King Group where the interveners and interested third parties had no such rights. It is self evident that if the second respondents lost the review they could not proceed and stood to lose a lot of money.

[24] In the second place, the terms of the petition and answers show that interdict was sought and that only affected the second respondents. Part of their answers raised issues of mora and personal bar. They were entitled to argue those points upon which they were successful and to inform the Court about the interim interdict. None of those matters affected the Ministers and stood as separate issues for the second respondents.

[25] In the third place there was a need to have separate representations over the argument about bias and perceived bias. If the review had succeeded it is far from clear to me that somehow the second respondents would keep their permission at all, or what would happen thereafter. I am glad I did not have to address that point. If the matter had simply gone back to a different Minister to determine de novo then at the review it was necessary for the Minister to remain aloof from the second respondents. (See Bolton 1179 C).

[26] Fourthly, and on the very argument about bias, it was appropriate that the second respondents were not associated with the Ministers and for this reason. Looking to my opinion on the case, and in particular at paragraphs 9 and 12, prompted me to look again at the notes I made at the time of what Mr Campbell actually said about bias. His words were that following the first inquiry the Ministers made up their minds to do everything in their power to bring about conditions where consent would be granted and conducted covert conversations with the Ministry of Defence and the second respondents to that end. As I have written he went on to say that on 25 February 2008 the second respondents began the seduction of the Scottish Ministers. Accordingly, it was clearly being suggested that the documents and meetings showed that all these parties were acting together. In that situation it was in my view entirely right that the second respondents were separately represented to present their own view of what was said, written or agreed. That they did as well as adopting what was said for the Ministers. It should be stressed these were all factual matters and how they were dealt with by various people.

[27] Fifthly, these respondents separately presented an important argument on the meaning and effect of Rule 21(4). That touches on the issue of whether the second inquiry was ultra vires. That argument was also successful and was part of my decision.

[28] Sixthly, these respondents also presented arguments about how the Reporter had dealt with factual matters on which they had submitted evidence and cross-examined at the second inquiry. They also made submissions on and in support of the Reporter's reasons and her suggested conditions in her conclusions on these facts. In my view they had a separate right to do so.

[29] Seventhly, the expenses here are first instance expenses and following Bolton 1178 H a second set of expenses is in my view justified in the particular circumstances of this case. Finally it is of some importance to notice that the review by the petitioners has wholly failed on all points.

[30] I now turn to consider the motions for the additional fee under the various headings in the Rule of Court. It is to cover the work and responsibility of the solicitors. Under heading (a) (Complexity etc ...) the second respondents have set out written grounds of justification. In my opinion there is sufficient merit in all of these to allow the matter to go to the Auditor. It was virtually conceded by Mr Campbell that the judicial review was complex. Having heard the case, I am of the view that there were many different grounds which the solicitors would have had to assess and consider. There were difficult legal issues especially over mora and there was voluminous correspondence to sift and assess. Some criticism was made of the work involved in considering perceived bias. In my view, that was a complex matter for the solicitor to assess. I dealt with it at some length in my opinion. As to (b) (Skill, time ... labour ... urgency ...) this relates to the interdict and the six grounds of review themselves. In my view it was necessary to react at once and there were many documents to be looked at in a hurry which I later considered at leisure. Also the whole planning background to the review was not straightforward as the M.O.D. had changes position. I agree with counsel that specialised knowledge was involved over the Electricity Act.

[31] Under head (c) ("number or importance of documents ...), I think it was incorrect of Mr Campbell to describe this as routine litigation. The documents were voluminous and covered a long period. The solicitors work in assessing these must have involved a lot of time and responsibility. It was not just letters, emails and policy documents.

[32] Heading (d) ("... place and circumstances ....") stands alone. The work done in relation to the interdict came at an awkward time at Christmas 2010. In my view a claim under this head is properly made. I take (c) and (f) (... importance ... value ...) together. This was not seriously revisited, nor could it be. It is a major matter for the solicitors client; of individual and national importance. The high costs were not disputed.

[33] I propose to allow the motion for the additional fee under all heads claimed. In the end of the day the detail of it is a matter for the Auditor. I have the following final observations. It is obvious that the amount of time actually recorded may not always actually reflect the time taken or the skill and responsibility. Such qualities are often exercised out of office hours. Also there can be an inevitable overlap between the various headings quoted to me. The skill and experience of the Auditor will ensure that there is no double recovery.

[34] In the result I will grant the motions. Both respondents are awarded the expenses of the judicial review and the hearing on expenses against the petitioners. I find the second respondents entitled to an additional fee under Rule of Court 42.14(3)(a) to (f) inclusive.