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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> London and South East Railway Ltd & Anor, R (on the application of) v British Transport Police Authority [2009] EWHC 1255 (Admin) (08 May 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1255.html Cite as: [2009] EWHC 1255 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		8 May 2009

1. MR JUSTICE COLLINS: The major issue that has been raised and has occupied considerable time this morning has been the question of costs. There is an underlying difficulty - "difficulty" being the right word - in as much as the funds available to the authority in the sense of the budget that it has are solely derived from contributions from the various bodies, including TOCs, and to the very greatest extent from the TOCs, each year. If the authority has a substantial sum which it has not budgeted for to pay, it will have to recoup that over the following years. Thus it will be inevitably recouped from the TOCs. Thus any order in favour, for example, of the claimants will not be 100 per cent because in due course they will have to contribute to whatever their percentage is so far as their liability is concerned under the budget to the eventual deficit that otherwise would result in the budget of the authority.
2. The problem is, as I indicated in argument, it seems to me it is not possible for the court - in deciding on an appropriate costs order - to modify the order in any way which meets that problem. It is not only the claimants that are affected; it is all those who have taken part in these proceedings, and, indeed, beyond these proceedings, the other TOCs which have not taken any part. That is the system that is in operation and there is nothing I can do about it. There is nothing that I can do in approaching the costs order that I consider to be the correct one which can meet that difficulty. In the end, Mr Sharpe and all other counsel recognised that although it was a factor which is in the background it is not a matter which can influence me in deciding what is the appropriate costs order and, in particular, who should pay the appropriate costs.
3. It has led the claimants to be keen, if possible, that the costs should be payable - to which they say they are entitled - not solely by the defendant but in part by the intervenors NMF and Heathrow Express) who raised arguments and took points which did not succeed. Thus Mr Sharpe has submitted that it is fair in the circumstances that they should have a direct liability to him for a percentage of the costs, a percentage to be calculated on the basis of the time that was spent in arguments they put forward which were not arguments which were originally raised by or relied on by the defendant in the course of dealing with this case.
4. The first question is whether the claimants should have all their costs. They have won. The claim was made because they were faced with invoices demanding payment of substantial sums of money which were not in accordance with the PSA that existed between them and the authority. Initially they sought to resist that on the basis that the authority was acting unlawfully in demanding it. The points they took were ones that depended on various arguments, including deficit and budgetary concerns. They did not approach it at that time on - what is regarded and has been adopted in this court - the key issue, which is whether there was power in the authority to override the provisions of the PSA in question.
5. Those provisions undoubtedly, on their face, prevented the authority from levying the extra amount resulting from the new model which had been brought into existence.
6. Initially the defendants' defence, as indicated in correspondence and also raised when the matter was before this court, was that this was a matter which should have been dealt with by arbitration - there had been arbitration proceedings and I do not need to go into the details because they are spelt out in my judgment - and that was the route that the claimants should have taken; and this was not a public law matter but it was a private law matter. That appealed to Mr Justice Mitting who refused permission on the papers.
7. Renewal [of application] before Mr Justice Underhill teased out the public law point which clearly is a public law point, namely whether there was power to override. That was the focus. Indeed, when he opened the case Mr Sharpe informed me that although there was a lot of paper involved in the case before the court, in reality, that was the point and the only point which he considered it necessary for the court to decide.
8. Mr Ross did not at that stage accept the narrowing of the issues of that point alone but encouraged me to make decisions upon other issues which, he submitted and may be correctly, would have been of benefit to the authority and to train operators in general insofar as that was possible on the material before me.
9. Others sought to persuade me that that was not only not necessary but not desirable because there were various issues of fact that may need to have been decided which were not before me. And, in any event, those issues would take up an unnecessary time for no proper good purpose.
10. In the end, I declined to reach decisions on those additional matters.
11. Thus for Mr Ross to submit, on behalf of defendant, that that was the only issue and that should have been regarded as the only issue is, with respect, not entirely accurate and not borne out by the way in which the matter was approached.
12. It seems to me that in all the circumstances it is right that the claimants should have all their costs of this matter. The only caveat I have is that there was far too much paper generated unnecessarily. That is not a matter I can, I think, reflect in any reduction by way of percentage but it is a matter which I would draw to the costs judge's attention that he should be very stringent in his approach to reasonableness of paper that has been generated. That will include pre-action correspondence. I have not gone into the details, but it seems to me that the claimants will have to justify the amounts that they claim in respect of work done before the lodging of the claim and involved in production of documentation for the court.
13. I can repeat now what I have said again and again in this court which is that parties should use their discretion in the material that they seek to put before the court in lodging the claim. Of course the Huddlestone principle requires - and indeed the duty of candour requires - that all material is put which could indicate that there was a possible argument against the claim or against the validity of the claim. Anything adverse must be put before the court. Equally the party will put all material which it considers to be necessary for the decision of the court to be properly approached. There is often - indeed I would say usually - a considerable amount of material which may become relevant but which is not, on the face of it, immediately relevant. Such material should be made available for inspection by the other party if the other party has not had access to it. No doubt, one copy should be available at court in case it is needed. But what need not happen is that all that material be put before the court in submitting a claim.
14. I add another rider. I was immensely assisted in this case by the use of A5 documentation. Although there was an awful lot, it did mean it was much easier to carry around. This court - I do not know the position with other courts - encourages the use of A5 material in any case where there is a substantial amount of documentation, indeed in any case. I appreciate that not all will necessarily have access to the necessary technology. I am told it is not particularly rare these days. It is actually cheaper too because it saves a lot of paper; that is something that we are all supposed to be encouraging in these times.
15. With that caveat, as it were, I am satisfied that the claimants are entitled to their costs of this claim.
16. What about Arriva? The general rule, subject to the Bolton approach, is that intervenors will normally expect not to have to pay but not to receive. That is the approach with which the court will start. Of course there may be circumstances when it is clearly appropriate that an intervenor receives or equally clearly appropriate that an intervenor pays if, for example, that intervenor raises an issue which has not been raised by the other parties, some time is spent dealing with that issue and the court rejects it in due course. In those circumstances it is clearly applicable that the intervenor should contribute something towards the overall costs of the hearing.
17. Mr Pleming submits that Arriva falls within the Bolton principle. His clients had, unlike the claimants, taken the authority to arbitration. In that arbitration they were raising not only the issues in connection with the proper construction of their own PSA, which was not identical to that of the claimants, but also were attacking the validity of the new model on which the assessment of amount payable was based. Neither of those issues were dealt with in these proceedings by me. I was discouraged from doing so and no party wanted me to deal with the question of the new model although there was quite a lot of material before the court which related to it.
18. Arriva was anxious, and understandably anxious, that nothing was decided by this court which could have an effect upon the arbitration and could influence or dictate to the arbitrator what he should decide or the approach that he should make other than that relating to the point which had essentially led to the claim coming before this court, namely whether there was power to override a PSA if the authority took the view that that was necessary in order to achieve a fair distribution of the amounts payable by the TOCs in order to meet the amounts that were necessary to be available to ensure that there was an efficient British transport police force which will carry out its functions in an appropriate and proper fashion.
19. There is no question, in my view, but that Arriva acted entirely reasonably in taking the view that it was necessary for them to appear in these proceedings if only to protect their specific interests and to raise matters which ensured that those interests were not adversely affected. Of course that involved supporting the arguments put forward on behalf of the claimants. They also went somewhat further in certain respects.
20. An argument was raised but only in relatively short compass on the basis of state aid. I confess that it was an argument which did not immediately, or even after a time, appeal to me as being an argument which appeared to have any great validity. Nonetheless it was understandable that it was a matter which could have affected the decision which I reached.
21. Also Arriva raised the argument that it was not possible to vary the PSAs without obtaining the consent of the Secretary of State. That was developed partly as an attack on NMF who were arguing that there had been a variation by agreement of their PSA and thus they could not be bound to repay the amounts by which they had benefitted as a result of that variation. It is partly an attack on that, but also it was a matter which was capable of supporting the approach made by the claimants on the basis that if the Secretary of State had to agree then there was no proper variation of the PSA which the claimants have. That argument did not succeed. I took the view that there was no need to obtain specific consent because there was the consent by the Secretary of State.
22. There were two issues which, on one view, were raised and could have been dealt with. I put it that way around. I have to consider - to decide - whether in my view they fall within the Bolton principle. There is no question but that there are cases in which the court has decided that if it is appropriate for a party to come to court - he has an interest which is over and above that of the claimant and an interest that either needs to be protected specifically or where the intervenor can raise arguments, and does raise arguments which are distinct from those raised by the claimant - it may be appropriate, if there is success, for there to be a costs order in the intervenor's favour.
23. It seems to me that Arriva does benefit from the Bolton principle and that it is entitled to an order for costs in its favour. But the additional issues that it raised beyond protecting its own interests - were matters which did not lead to success. They did not add to the claimants' argument in other respects. It seems to me in those circumstances that they should have a proportion of their costs and not the whole of their costs. It seems to me in all the circumstances that the appropriate proportion for them to have is 75 per cent of their costs.
24. Who should pay those costs both of Arriva and of the claimants? The answer is primarily the defendant. It seems to me that the appropriate order to make is that the defendant pays those costs to be subject to detailed assessment if not agreed.
25. The question then is whether NMF or HEX or both should contribute to those costs. Mr Fordham on behalf of NMF has made some general submissions that it would be wrong for the court to penalise intervenors who had a proper basis for coming to court and who properly would regard it as the norm that they neither pay nor receive simply because they raised some arguments which, in the end, did not find favour because that would be to adopt an approach which would go into the matter in detail and to apportion in a way which was not appropriate. I do not accept that it is right to say that that is the way in which the court would apply the matter in the circumstances of this case.
26. The reality is that NMF raised a delay issue which was not originally relied on albeit the defendant - perhaps not altogether surprisingly - sought to benefit from it in due course, and also what has been described as a claw-back issue; that is to say, even if the position was unlawful nonetheless the statutory provisions enabled, in subsequent years, the authority to claw back the losses and thus obtain from the claimants what they were not able to receive from them immediately. That argument also failed. Those were substantial arguments.
27. It seems to me that it is right that a percentage of the costs payable by the defendant should fall upon NMF to reflect that part of their involvement which led to failure.
28. The question is: what is the right percentage? I bear in mind and recognise that sadly the bulk - and perhaps a very significant proportion - of the costs will be costs incurred before the matter actually reached the hearing before this court. That is something one must bear in mind in deciding what the correct percentage should be. It will be a small percentage. It seems to me that in all the circumstances - bearing that overall position in mind - I would assess it at 10 per cent of the costs payable by the claimant.
29. Heathrow Express is, in my judgment, in a different position. It is true that it embellished the arguments relied on by the claimants in certain respect. Really it added very little, if anything, to the substance of the hearing. In those circumstances it seems to me that it is not appropriate to make Heathrow Express pay anything. Thus they will neither receive nor pay anything by way of costs.
30. Does that deal with everything?
31. MR SHARPE: Yes. Thank you.
32. MR PLEMING: There is one matter, my Lord; that is the question of timing of any application to appeal. I want to be sure there is no ambiguity. It is Order 52.4 in the White Book, the amendment introduced in 2005, at page 1493 of the 2009 Edition. I want to ensure that we are all working to the same rule.
33. MR JUSTICE COLLINS: It is the decision. You are quite right. It could be arguable, I suppose, that the decision was some time ago. For the avoidance of any doubt, I think it is probably sensible for me to say that the 21 days run from today so that there can be no argument about it. I had assumed it was from the court order.
34. MR PLEMING: So did I.
35. MR JUSTICE COLLINS: Which, I would have thought, would be rather

a sensible view.

36. MR PLEMING: Otherwise time would have gone.
37. MR SHARPE: I say it was a deliberate change from the old practice in which time did run from the order. It was to forestall the possibility of an order taking a week to be drawn up and the time to appeal running from that day. it was a deliberate change to make the time run from the date of judgment.
38. MR JUSTICE COLLINS: It may be sensible - may be not.
39. MR ROSS: I think your Lordship's views are clear. We would welcome a little further clarification.
40. MR JUSTICE COLLINS: Yes, certainly.
41. MR ROSS: Your Lordship entered a caveat about costs.
42. MR JUSTICE COLLINS: That is a matter for the costs judge.
43. MR ROSS: They are, we presume, to apply to all the costs we are being ordered to pay to both these claimant parties.
44. MR JUSTICE COLLINS: Yes, of course.
45. MR ROSS: Secondly, when your Lordship ordered NMF to contribute 10 per cent towards the costs we are going to have to pay out, similarly that 10 per cent applies to the costs we are to pay the claimants and the costs we have to pay Arriva.
46. MR JUSTICE COLLINS: Yes, of course. Your overall liability to pay the costs.
47. MR FORDHAM: Have we understood correctly that my Lord would limit that from the date until we intervened in these proceedings? Until then we were not any part.
48. MR JUSTICE COLLINS: When did you first - - - - -
49. MR FORDHAM: It would be quite wrong for costs prior to the date of our intervention.
50. MR JUSTICE COLLINS: That is a thought, yes. It may be I should vary the 10 per cent. You are quite right.
51. MR FORDHAM: I will get the date.
52. MR JUSTICE COLLINS: Presumably it was after the claimant had been given permission to proceed.
53. MR FORDHAM: No. It was certainly after the claim being lodged.
54. MR JUSTICE COLLINS: Of course. I think there is force in this. Your contribution to the overall costs should be only to the costs incurred after the lodging of the claim. In those circumstances it is right that I should increase your percentage and I shall increase it to 20 per cent.
55. MR FORDHAM: The reason I asked for clarification was as to whether you had already considered that issue. If it had been considered - - - - -
56. MR JUSTICE COLLINS: No - because it would have been 10 per cent of the whole lot. You may be better with 20 per cent of post-lodging. You can take either whichever you wish.
57. MR FORDHAM: We will stick with the 10 per cent.
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