The Supreme Court has dismissed an appeal by CPRE against the recovery of multiple sets of Acknowledgement of Service (“AoS”)/ summary grounds costs at the permission stage in judicial and statutory review cases. James Maurici QC and Jacqueline Lean explain why.
The appeal in CPRE Kent v Secretary of State for Communities and Local Government  UKSC 36 (30 July 2021) sought to challenge the position established in cases such as In re Leach  EWHC Admin 455;  CP Rep 97; R (Mount Cook Land Ltd) v Westminster City Council  EWCA Civ 1346;  PTSR 1166 and R (Luton Borough Council) v Central Bedfordshire Council  EWCA Civ 537;  2 P & CR 19. It was argued that the position was inconsistent with Bolton Metropolitan District Council v Secretary of State for the Environment (Practice Note)  1 WLR 1176.
Following the judgment, which upheld the decision of the Court of Appeal, the position (which applies both to judicial review and statutory review cases) is:
(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. So, for example, if there is an obvious lead defendant and the court was not assisted by the AoS or summary grounds of an additional defendant(s) and/or interested party, then the costs of that additional defendant(s) and/or interested party may not be proportionate and so will not be recoverable. That is an assessment which is case-specific and not susceptible to more general rules.