CPRE Kent v Secretary of State for Communities and Local Government [2021] UKSC 36

CPRE Kent challenged costs orders made against it after its statutory planning review was refused permission. The Supreme Court upheld the Court of Appeal's practice that multiple defendants and interested parties may each recover reasonable costs for preparing acknowledgements of service, qualifying the Bolton principle for permission stage proceedings.

Facts

CPRE Kent, a charity seeking to protect the Kent countryside, challenged Maidstone Borough Council’s local plan under section 113 of the Planning and Compulsory Purchase Act 2004. The claim was served on the Secretary of State, the Council, and Roxhill Developments Ltd as an interested party. Each filed an acknowledgement of service and summary grounds contesting the claim. Lang J refused permission and awarded costs totalling £10,000 (the Aarhus cap) to all three respondents. CPRE Kent appealed solely against the costs decision.

Issues

Principal Legal Issue

Whether the Court of Appeal erred in law by upholding the practice that, where permission for statutory or judicial review is refused, each defendant and interested party who filed an acknowledgement of service has a prima facie entitlement to its reasonable and proportionate costs, departing from the Bolton principle that normally only one set of costs would be awarded.

Jurisdictional Issue

Whether this court should intervene in an appeal solely concerning costs, given the Court of Appeal’s primary responsibility for developing practice in this area.

Judgment

The Bolton Principle and its Qualification

Lord Hodge, delivering the unanimous judgment, noted that Bolton Metropolitan District Council v Secretary of State for the Environment provided guidance on practice, not binding legal rules. Lord Lloyd in Bolton had stated:

“As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule.”

CPR Rule 54.8 and Practice Direction 8C

The court held that the introduction of CPR Part 54 created a mandatory procedural obligation for defendants and interested parties to file acknowledgements of service if they wish to participate in judicial review proceedings. This innovation justified qualifying the Bolton practice at the permission stage. Lord Hodge explained that there was no error of law because Bolton itself was merely guidance on practice, and the Court of Appeal was correct to interpret CPR rules 54.8 and 54.9 as supporting costs recovery for acknowledgements of service.

Applicable Principles

The court endorsed Coulson LJ’s conclusions from the Court of Appeal:

“(a) When permission to seek review is refused, a claimant may be liable to more than one defendant and/or interested party for their costs of preparing and filing their AoS and summary grounds. (b) It is not necessary for the additional defendant(s) and/or interested party to show ‘exceptional’ or ‘special’ circumstances in order, in principle, to recover those costs. (c) However, to be recoverable, those costs must be reasonable and proportionate.”

Limited Role of Supreme Court

Following R (Gourlay) v Parole Board, the court confirmed that appeals on costs rarely meet the threshold for Supreme Court intervention, which requires an arguable point of law of general public importance. The Court of Appeal has primary responsibility for monitoring practice developments, and this court will only intervene where an error of law is established.

Implications

This decision confirms that in statutory and judicial review proceedings, multiple defendants and interested parties may each recover their reasonable and proportionate costs for preparing acknowledgements of service when permission is refused. The Bolton principle limiting costs to one set applies to substantive hearings but is qualified at the permission stage due to the mandatory acknowledgement of service procedure under CPR Part 54. The decision reinforces the Court of Appeal’s primacy in developing costs practice and the Supreme Court’s reluctance to intervene absent legal error. Policy concerns about access to justice and the chilling effect of multiple costs awards are matters for the Civil Procedure Rule Committee or the Court of Appeal to address through rule changes or practice direction amendments.

Verdict: Appeal dismissed. The Court of Appeal did not err in law in upholding the practice that multiple defendants and interested parties may each recover reasonable and proportionate costs for preparing acknowledgements of service when permission for statutory or judicial review is refused.

Source: CPRE Kent v Secretary of State for Communities and Local Government [2021] UKSC 36