CO/1936/2012
Neutral Citation Number: [2013] EWHC 4168 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Tuesday, 18 September 2012
B e f o r e:
MRS JUSTICE LANG
Between:
THE QUEEN ON THE APPLICATION OF SAVE BRITAIN'S HERITAGE
Claimant
v
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
Defendant
SEFTON METROPOLITAN BOROUGH COUNCIL
WIRRAL METROPOLITAN BOROUGH COUNCIL
LIVERPOOL CITY COUNCIL
BLACKBURN AND DARWEN BOROUGH COUNCIL
PENDLE BOROUGH COUNCIL
BURNLEY BOROUGH COUNCIL
STOKEONTRENT CITY COUNCIL
HYNDBURN BOROUGH COUNCIL
HULL CITY COUNCIL
Interested Parties
ComputerAided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Richard Harwood (instructed by Richard Burton Solicitors) appeared on behalf of the Claimant
James Eadie QC and Iain Steel (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Mr M WenbanSmith (instructed by Cobbetts) appeared on behalf of the Interested Parties, Pendle BC and Burnley BC
Mr M WenbanSmith (instructed via Direct Access Scheme) appeared on behalf of Darwen and Blackburn BC
The other interested parties did not appear and were not represented
J U D G M E N T
(As Approved)
Crown copyright©
MRS JUSTICE LANG: I have given careful consideration to the written and oral submissions. I consider that the claimant has established an arguable case that there has been a material error of law in the decisionmaking process; indeed this is conceded. The Secretary of State does not wish to attempt to recover the sums already paid and so it is said, on his behalf, that there is no point in pursuing this claim.
Whilst recognising the force of this, and the difficulties involved in undoing what has already been done, I consider that the claimant is entitled to have its claim considered by the court in a full judicial review hearing, and I consider this would be in the public interest given the importance of the environmental issues. The court has discretion whether or not to grant relief, even where liability is established. I do not consider that there was a failure to act promptly in bringing the claim, therefore I grant permission and I would like to discuss directions with counsel.
MRS JUSTICE LANG: I have brought along the template that the court has for case management directions so that we have a document to work off. I only have three copies for perhaps Mr Harwood, Mr Eadie and Mr WenbanSmith. So looking at case management directions my view is that it would be in everyone's interest for there to be expedition. Any uncertainty about decisions involving public funding is undesirable and there has already been significant delay. So subject to your respective views I was thinking of making an order that it be heard in this coming term, towards the end, but I imagine that anything too close to Christmas would be unattractive. I had in mind say perhaps something listed no later than the week commencing 10 December. There is the week of the 10, the penultimate week of term, and then Monday 17 is the last week of term before Christmas. I want to maximise the amount of time for preparation, but on the other hand if you go into that last week of term the court will be chockablock with the usual preChristmas rush and I do not know how many days you think this is going to take. I am little concerned about timing. Should I hear from you first on expedition and timing? Perhaps Mr Eadie first. I imagine Mr Harwood will be more than happy with expedition.
MR HARWOOD: More than happy with expedition and that sort of timescale. Given what needs to be done it then becomes a matter of compressing the particular timescale to make sure we fit in with that.
MRS JUSTICE LANG: Mr Eadie, what do you
MR EADIE QC: It is a matter entirely for you whether you are content to order expedition and allow this case, or what remains of it, to jump the queue ahead of the other Administrative Court business, which I know is pressing. I am not going to seek to dissuade you from that. The only thing we would urge is to allow us sufficient time at the beginning of the process to consider the development of the grant of permission. It may well be, given the events that have happened and the reconsideration which has occurred, the Secretary of State I make now promises will take the view he does not want to chuck more good money after bad in relation to this.
MRS JUSTICE LANG: I think that is a matter for you. The first bullet point under the case management directions sets out the standard 35 days. I would not abridge that. If there is to be any other sort of thinking about directions that can be done during that period. So if listing say that the week commencing 10 December is convenient, or
MR EADIE QC: I do not have my diary here. I do know that from a few days before for eight days I have a case that is running in relation to the transfer of prisoners in Afghanistan, and so I will not be able to do that date now. It may be that the Secretary of State, if a decision is taken to contest this, would want me to be involved, given I have been involved until now. I know my diary for that last bit of December is very difficult and it may be that in the circumstances there would still be expedition if my Lady ordered a slightly longer window, as it were, and we could then liaise, myself and my learned friend, about timing and about finding a date that would be convenient to both of us to be heard by say end of January next year. That would not be more than a month, or so, of additional spreading of time and may enable us to be present. Rather than having a "no later than" you have a hearing on a date.
MRS JUSTICE LANG: I hope I am not disclosing any secrets by saying that Listing Officers when they see a deadline date always list on and around the deadline date.
MR EADIE QC: Even if it went into January I know that would make my life easier as I know December is hideous. It seems a little harsh on the Secretary of State to deprive counsel of choice, unless it is absolutely necessary.
MRS JUSTICE LANG: You must be heavily in demand, Mr Eadie. I imagine sometimes the Government has to make judgments about how they best deploy you.
MR EADIE QC: They certainly do and that is undoubtedly right. The question is whether the court, given the urgency of this case, or the view about the urgency of the case, should force them to that election. I can pretty much predict, given this case is this case and Afghanistan is Afghanistan, which way they would jump were they to be put to that election. The real question for you is whether you would want to put them to that election. If you extended the window to the end of January I am pretty certain we can find a date. This case will not take more than a day, I do not imagine.
MRS JUSTICE LANG: That was the other consideration. Is that right? I thought two days would be safer.
MR EADIE QC: There are no live issues left. There are some. I do not want to go back on my lady's permission. You have identified some issues and I fully accept that. They are within a relatively narrow compass, which is a better way of putting that point. We are not fighting about the unlawfulness of the original decision any more.
MRS JUSTICE LANG: Is the court going to want to look at the position of individual local authorities in a way that obviously is going to take a little time? I think there is an issue also of concern to me, to be frank, that I do not really want a dozen local authorities separately represented, because it turns into a much bigger and longer process. I have wondered whether it would be reasonable to direct that interested parties should be limited to written representations.
MR EADIE QC: Either that or you limit them to, as it were, a single counsel or single legal team.
MRS JUSTICE LANG: Maybe both, so that they can put in their details of their individual situation in writing, but that all local authority interested parties who wish to be represented by one counsel, so that we do not have a dozen people here
MR EADIE QC: I am not seeking to dissuade you from that. I suspect, as I say, by the time the hearing comes around, particularly if they have put in their position in writing, we are not going to be spending a lot of time arguing about the individual position of individual authorities. It is tolerably clear that a percentage of them have spent or committed one can have an argument around the edges of what logically "committed" means. You can clarify the position in relation to some of them and others of them, but the fact of the matter is that you will end up with a percentage of the money that has been spent. That is probably clear. The real question is whether variations in that percentage are going to make any real difference to the court's decision on relief. I do not think we are going to spend that much time on the individual position of local authorities, I have to say.
MRS JUSTICE LANG: I will hear from Mr Harwood.
MR HARWOOD: My Lady, first of all, in terms of the timescale for expedition, we would really want this dealt with before Christmas. It is a matter that obviously is of concern to quite a number of people, both public authorities, ourselves and also residents in the areas, for these matters to be sorted out. It is unfortunate it has taken to this stage to get a decision on permission. So the whole context of course of the response from the Secretary of State has been a lot of money has been spent and there is no practical point. We are concerned that the Secretary of State's approach of just keeping a delay in the proceedings has an effect of seeking to strengthen their position, rather than actually resolving the important issues on the ground. My Lady's suggestion that they should be dealt with not later than the week commencing 10 December is the sensible course. In terms of my diary that week is good for me. A couple of weeks beforehand are quite busy, but that week we can do.
MRS JUSTICE LANG: What about Mr Eadie who has a clashing case?
MR HARWOOD: Of course there is always the problem of diaries and the question then of representation. This is a case where whilst from our perspective we are dealing with it on a conditional fee basis, my learned friend's side is not. Whilst the documentation is expanding with the responses from the authorities, it is not such a volume of material that the Secretary of State is not capable of dealing with that by choosing other counsel if they feel the need to do so. My main point is that it is important to get on with this case and it is one way which on its merit does require dealing with before the end of term.
MRS JUSTICE LANG: Parking that for a moment, what do you say about time estimate?
MR HARWOOD: I am little cautious about whether we could do it in one day. It does depend how the issues evolve. The points which may take time, if it proves to be of sufficient importance to get into them, are the legal issues on restitution and what has actually happened with the money, when it has been spent and so forth. There is quite a difference in approach between the Secretary of State saying that the majority has been spent or committed, and our analysis which is pointing towards less than half of it spent and very little which is capable of resisting a restitutionary remedy.
Once those issues have gone through there may be a difference between the parties in terms of what is capable of being recovered. At this stage it is not possible to say that we are not going to have to get into those documents, we may have to. In terms of the interested parties' positions, it seems to us it would be quite sensible if the interested parties were jointly represented both in terms of limiting the number of people making submissions to the court, but also simply in terms of case management. At the moment my solicitors have to correspond with the nine local authorities, who are interested parties, and the other four who have not formally acknowledged service, on just about everything. There is quite a considerable increase in costs in the process. A single representation from the interested parties would be of great assistance.
MRS JUSTICE LANG: I am not sure that is going to help your particular problem with service, because I imagine that the local authorities would use their inhouse solicitor and then share a counsel. The problem with that is that obviously they all need still to be served separately.
MR HARWOOD: As it stands at the moment two of the authorities, possibly three, are represented by Cobbetts Solicitors and the rest are using their inhouse solicitor. There may well be a mechanism to try and rationalise the representation on that side. That does depend on the interested parties.
MRS JUSTICE LANG: Mr WenbanSmith, do you want to say anything about what we are discussing as to representation of the local authorities?
MR WENBAN-SMITH: Only one brief point, which you mentioned: most local authorities use their inhouse legal teams because of the cost of seeking outside legal representation, and many of them are bound contractually internally to do so. Only in exceptional circumstances do they go outside their own legal services' teams for costs reasons. In this case, for instance, your Ladyship will have realised Blackburn have chosen not to instruct Cobbetts, but they have instructed me directly, whereas Pendle and Burnley are using Cobbetts. In my submission it would be unworkable to oblige local authorities to spend money on legal representation outside their teams.