Court of Appeal confirms that JRs can settle by consent after refusal of permission on the papers but before any renewal hearing

Today the Court of Appeal handed down judgment in the case of  R(oao Easter) v Mid-Suffolk District Council and Debenham Antiques Limited [2020] EWCA Civ 1378.

The appeal arose out of an underlying judicial review claim brought by Ms Easter against the grant of planning permission by Mid-Suffolk District Council to Debenham Antiques. The judicial review was never defended by the Council. Initially, neither was the claim defended by Debenham Antiques, the Interested Party. However, following a refusal of permission on the papers, the Interested Party sought to defend the judicial review by filing an Acknowledgement of Service out of time and appearing at the judicial review oral renewal hearing. Holgate J granted permission for the JR to proceed at the oral renewal and emphasised the strength of the claim.

Following the oral renewal, both the defendant and the interested party consented to judgment on all four of the pleaded grounds. There then followed a contested costs application which was decided on the papers by HHJ Evans-Gordon. The Judge decided that the Council should pay costs up until the date which the Interested Party filed their Acknowledgement of Service and that the Interested Party should pay the costs thereafter.

The Interested Party appealed that decision. The principal error of law alleged was that the claim couldn't have been dealt with by consent prior to the oral renewal hearing because once permission has been refused on the papers an oral hearing had to take place. That appeal was successfully defended by the original Claimant, Ms Easter.

In his judgment, Lord Justice Singh (with whom Moylan and Popplewell LJs agreed), confirmed that Judicial Reviews can be disposed of by consent after a refusal of permission on the papers but prior to a renewal hearing under the terms of both 54.16 and 40.6 CPR. This construction of the CPR was further underscored when one considers the terms of the Overriding Objective and the need for 'active case management' which includes 'helping the parties settle the whole or part of the case' (CPR 1.4(2)(f)) and 'where appropriate, dealing with the case without the parties needing to attend at court' (CPR 1.4(2)(j)). The Court then re-emphasised the fact that a challenge to a first-instance costs decision 'will only succeed if there has been an error of principle or the result is unjust or perverse' and dismissed the Appellant's remaining arguments.

Victoria Hutton acted for the successful First Respondent.