The High Court in Watt v London Borough of Hackney and another  EWHC 1978 has examined, in the context of a planning case, the circumstances in which a mistake of fact could constitute a ground for judicial review. The judgment also raises some interesting other issues; firstly, the failure by the solicitor instructed on behalf of the claimant to take on board the court’s advice that the matter was not one where an “ordinary” litigation approach was appropriate and, secondly, the costs consequences that flowed from the court’s decision. Although the claimant succeeded in her application that the planning permission granted by the council should be quashed, the court held that she was not entitled to her costs until 27 April 2016, the date of the hearing at which her case was recast as a mistake of fact.
The claimant issued an application by way of judicial review to quash the defendant planning authority’s resolution to grant planning permission for the erection of a three-storey building on a vacant site next to a primary school. The two sites, which were within a conservation area, were separated by an open area bounded by walls, which formed part of the school’s curtilage and was used as a playground. Given the proposed development would overshadow the school playground and block out the sunlight from the school’s external areas, the applicant for planning permission obtained a “sunlight and shade assessment” from a company, Twenty 16 Design (T16D). That assessment considered whether the development would affect the light enjoyed by the school and erroneously assumed that the boundaries of the playground area were fenced in such a way that they admitted light. In fact, the boundaries of the school were solid and admitted no light.
Objectors to the planning application obtained their own independent daylight/sunlight assessment. In addition, the claimant sent the council a report dated 6 April 2016 that had been commissioned by the Hackney Learning Trust from Daylight Planning Ltd (DPL report) by the Hackney Learning Trust. The DPL report suggested there were flaws in the T16D report. However, when dealing with the objections to the planning application relating to daylight and sunlight, the council’s officer relied on the conclusions in the T16D report that the playground received sunlight that comfortably met guidance issued by the Building Research Establishment. The council’s resolution to approve the planning application was passed on the casting vote of the chair of the committee.
The judicial review proceedings
Although the claimant was refused permission to apply for judicial review on the papers, she was subsequently granted permission at an oral hearing, with a hearing of the substantive claim listed for 27 April 2016. The claimant made an application by notice of 12 April 2016 to amend her grounds on the basis that the council had proceeded on an erroneous factual basis. In response, the council filed a witness statement from Mr Westover, the architectural technician, daylight consultant and director at T16D in which he responded to the DPL report. A witness statement was then filed on behalf of the claimant from Mr Beck of DPL; that statement criticised the original T16D report and the new response from Mr Westover. At the hearing, and from the papers, it was apparent that the claimant’s solicitor was adopting an approach to a judicial review application that the judge commented “would not have been out of place in the county court”. In particular, the claimant’s solicitor appeared to think it was appropriate to draw questions for Mr Westover to respond to. Indeed, the court was provided with emails that he sent with a further series of questions that he sent to Mr Westover on 25 April 2016.
In order to avoid unnecessary duplication, the court adjourned the hearing to permit the claimant and the council to each file expert evidence by one witness, on the issue of overshadowing. At the hearing, the judge:
- Ordered the claimant to pay the defendant’s costs thrown away.
- Considered it necessary to remind the parties in open court of the differences between county court litigation and applications for judicial review. He impressed upon the claimant’s solicitor that he was not to get involved in discussions between witnesses (which clear instruction was disregarded).
In accordance with the court order, both parties served a second witness statement. However, on 15 June 2016, the claimant sought permission to file a third witness statement from Mr Beck. From this it was apparent that, while the two experts had been meeting, the claimant’s solicitor had (despite the court’s clear instructions) been directing questions at Mr Westover. In addition to those questions he had already sent, a further 11 detailed questions were sent to the council’s expert. At the hearing of the matter on 23 June 2016, the judge expressed his concern at this approach and that he would have something to say about this on the issue of costs.
Decision of the High Court
The claimant’s first ground, on which she succeeded, was that there was an error of fact which constituted a ground for judicial review within E v Secretary of State for the Home Department  EWCA Civ 49,  Q.B. 1044. As Lord Carnwath’s dicta in E made clear, there had been a separate ground of review, based on the principle of fairness, since the case of R v Criminal Injuries Compensation Board ex p A  2 AC 330. Applying the rationale of the principles that were identified by Lord Carnwath, the court was satisfied that:
- There was a mistake of fact in relation to the sunlight assessment (which was treated by the committee as authoritative) which created a misleading picture.
- The mistake of fact was established. Although there was some disagreement on the effect of the mistake, there was no dispute that there had been a mistake and that it related to how the walls of the playground were modelled.
- The claimant was not responsible for the error.
- The mistake had played a material part in the decision-making process of the committee in deciding to grant planning permission.
Therefore, the court ordered the planning permission to be quashed on this ground of challenge. The claimant’s five other grounds were held by the court to have no merit in law.
In judicial review, as in other proceedings, the general rule is that costs follow the case. Traditionally, the courts have exercised considerable discretion in deciding what costs order to make, which depends very much on the facts of the case. In reaching his decision on costs, the judge in this case had regard to the relative success of the parties and the court’s discretion set out in CPR 44.2.
Both parties made written submissions on the issue of costs. The claimant contended that:
- She should receive all of her costs, except those awarded against her on 27 April 2016.
- Although she had not succeeded on all grounds, it would be wrong for the court to adopt an “issue based approach” since she had succeeded on the principal issue in the case, namely overshadowing. The other matters that she had raised were “subsidiary points” on which little time was spent at the hearing.
The council submitted that:
- The claimant should be ordered to pay the agreed sum of costs thrown away as per the order of 27 April 2016 in any event. These should be added to the Aarhus capped sum that the council was ordered to pay because the claimant’s case had been recast at the hearing on 27 April 2016 as a mistake of fact case.
- Given her solicitor’s conduct, the claimant should pay the council’s costs, assessed on an indemnity basis. The claimant’s legal team had approached the case as though the court’s task was to address the planning merits, rather than addressing the lawfulness of the decision and the manner in which it was reached.
- It should only pay one sixth of the claimant’s claimed costs as five of the six grounds were dismissed. Although those grounds had not taken up much time at the hearing, they had involved a great deal of work in case preparation. Further, the court had specifically warned the claimant and her legal team on 27 April 2016 that her case needed more focus and that parts of the claim were “rather optimistic” but despite this warning they had continued to argue the same points.
As the claimant’s case would have failed if she had not advanced her argument there had been a mistake of fact, the court held that the claimant should not be entitled to any costs against the council until 27 April 2016. Further, the council was entitled to an order of costs against the claimant for its defence of the action until that date (capped at £6000 since it was an Aarhus claim). However, the court considered that, following the amendment of the claimant’s grounds, virtually all of the conduct of the action related to the one successful ground and the claimant was therefore entitled to her reasonable costs of pursuing the action from that date. Although the judge agreed with the council’s submission that the claimant had persisted in arguing unfocused and optimistic grounds, he was not persuaded that had added to the hearing time. The one exception was the claimant should not be allowed the costs incurred in making and filing of Mr Beck’s final witness statement.
The judge did not consider this was a case for awarding costs on an indemnity basis. The Aarhus protective costs cap of £35,000 applied to any costs the claimant received from the council although the judge considered it inconceivable that the costs order he made would produce a claim, let alone an assessed bill, that came anywhere near that amount.
So what principles of practice can be taken from this decision. The key ones appear to be:
- Judicial review litigation is not to be conducted in the same way as ordinary civil litigation. The claimant’s solicitor in this case did not appear to appreciate that, in contrast to ordinary civil litigation, judicial review proceedings are (at least in principle) co-operative and, certainly from the public body’s point of view, intended to be less adversarial. Despite the court reminding the parties of the differences between county court litigation and applications for judicial review, it appears that the claimant’s solicitor considered that it was appropriate to direct questions to the council’s expert witness in accordance with CPR 35.6. As the court pointed out, even if this was a case to which CPR 35.6 applied, the claimant’s solicitor was asking written questions on a second occasion without the court having given consent. Despite a clear instruction from the court that he should not get involved in discussions between witnesses, that instruction was disregarded. However, although the judge described the solicitor’s approach as “unwise”, he did not consider that it had significantly added to the costs of the action.
- Orders made by the court should be followed. In this case, the judge made an order permitting the claimant and the council to each file evidence limited to expert evidence by one witness. Despite that limit being reached, the claimant sought permission to file a third witness statement. It appears that the court took a dim view of this application given that the claimant was not allowed her costs in making and filing that statement.
- It is important that any claim challenging a decision is based on public law principles. If the claimant had not amended her claim to advance the argument that the council’s decision was based on a mistake of fact, she would not have succeeded. As it was, if she had included that claim at the outset she would not have incurred the thrown away costs of £6000.
More information on the procedure to be followed in relation to judicial review claims can be found in our Practice note, Judicial review procedure: a practical guide.