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No legal duty to consult and costs capping order set aside


The words 'no legal duty to consult' should please public bodies who are frequently challenged for allegedly failing to consult. Yet this case shows that there is normally no legal duty to consult when a public policy is being changed.

In the instant case, the claimant alleged that Leighton Linslade Town Council had been legally obliged to consult market traders over variations to the pitch fees that market traders would be required to pay.

In dismissing the claim HHJ Dight (sitting as a Deputy High Court Judge) made two important rulings regarding consultation duties and costs.

1) No legal duty to consult

The normal position on consultation remains as set out by the House of Lords in 1993 "that it is not enough for [applicants] to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair". This is because the "court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made." (ex parte Doody [1994] 1 AC 531).

The need for common law restraint was explained by Laws LJ who described "the archetype of public decision-making" as recognising the public interest in a public body's freedom to change policy:

"Thus a public authority will not often be held bound by the law to maintain in being a policy which on reasonable grounds it has chosen to alter or abandon. Nor will the law often require such a body to involve a section of the public in its decision-making process by notice or consultation if there has been no promise or practice to that effect. There is an underlying reason for this. Public authorities typically [...] enjoy wide discretions which it is their duty to exercise in the public interest. They have to decide the content and the pace of change. Often they must balance different, indeed opposing, interests across a wide spectrum. Generally, they must be the masters of procedure as well as substance; and as such are generally entitled to keep their own counsel." (Bhatt Murphy [2008] EWCA Civ 755, §41).

The law of legitimate expectation makes a limited inroad to the above freedom but as Laws LJ noted this is only "where the decision-maker's proposed action" without consultation would "be so unfair as to amount to an abuse of power".

The required element of gross unfairness could arise either from the way the public body had previously conducted itself (substantive expectation) or because of the nature of the change that is proposed (procedural expectation). Given these high thresholds Laws LJ held that legitimate expectation cases "will not often be established." (Bhatt Murphy, §§42, 49)

HHJ Dight dismissed the claimant's procedural expectation arguments because the authorities show that such a challenge required a "fundamental change" in policy which might be described as a "moving of the goal posts". The Judge ruled that the changes effected by Leighton Linslade Town Council "do not begin to get close to the sort of changes required to create a legal duty to consult".

In any event the Judge also found that, if there had been a legal duty, then it had been discharged as the local authority had listened to the views of market traders before formulating proposals which the traders had then been entitled to comment on before the authority made a "decision in the interests of the local community".

2) Costs capping order set aside

In June 2018 the claimant, who acted in person, had succeeded with a paper application for a costs cap that limited her costs liability to £4,000. However, the claimant's father had died five months earlier leaving her with the prospect of inheriting a substantial sum of £50,000 to £100,000.

The Judge noted that there was no statutory power to set aside a costs cap. Moreover, although the Administrative Court Judicial Review Guide 2018 said the court should only set one aside if there was "an exceptional reason" for doing so, no source was given for this view (§24.3.7). The Court had a general power to set aside a costs cap (CPR r3.1(7)).

By requiring the claimant to provide information about her 'financial resources' - rather than merely 'assets' and 'income' - the draftsman must have intended her to disclose assets, income or other money 'which a party might be able to obtain in due course' (Criminal Justice and Courts Act 2015, s89(1)(a)).

In other words, the claimant's application for a costs cap without disclosing her prospect of an inheritance amounted to material non-disclosure entitling the trial judge to set it aside. The judge noted that the statutory scheme was taken in part from the common law, which had talked of a costs cap being made in 'exceptional circumstances' (Corner House [2005] EWCA Civ 192). He made a further costs capping order in the sum of £20,000, an amount which the claimant was ordered to pay.

Jon Holbrook was counsel for Leighton Linslade Town Council. He was instructed by Hetal Ruparelia, Solicitor, Devonshires. Reported on Westlaw as [2019] 2 WLUK 241.

Press report here and here