Judgment #2 – no permission to appeal

If you’ve been following our saga, you’ll know that there was a hearing on 24 January at which Cotham School applied for costs protection for its litigation to try to get our village green status removed (meaning, basically, that if they lost they wouldn’t have to pay our costs as well as their own). You can read more about that here. Cotham also said it wouldn’t be able to continue its litigation without that protection.

The Court was having none of it – this simply isn’t the right sort of claim to be eligible for costs protection. And, in fact, both we and the Commons Registration Authority had already told them so in early December, and we even made Cotham an offer that they could withdraw the claim at that point on a no cost basis, saving themselves from their own future costs and from having to pay ours. Unfortunately, they chose to continue – hence the hearing and, after that, a ping-pong of submissions about who should pay the costs of the hearing, and how much. We explained more about that here.

Now we have the judgment following all those submissions. First, and most importantly, Cotham School has been denied leave to appeal about the costs protection issue. The Judge pointed out that he was following existing authority (at both High Court and appellate level) so ‘there is no real prospect of success’ for the school on this issue. They could in theory try applying directly to the Court of Appeal, but that is an expensive and uncertain process.

Secondly, the Judge dealt with the issues about costs, and dismissed the school’s argument that it should not be ordered to pay our costs of the hearing at this stage. In particular, he referred to our earlier offer to let the school withdraw on a ‘no cost’ basis, remarking that ‘with the benefit of hindsight, at least, [it] was a generous one… In my judgment, the combination of that detailed explanation [as to why the school’s argument was wrong] and the failure to accept the offer amount to a good reason why the claimant should pay the second defendant’s costs’.

Now, we haven’t got the whole of our costs back – as it was only a one-day hearing, the Judge made a ‘broad brush’ summary assessment of costs. In his view, no counsel’s fee for a one-day hearing of this sort should have exceeded £6,000 – although in fact even the junior counsel who were involved charged more than that. He has directed Cotham School to pay £7,500 +VAT towards our costs, and Bristol City Council to pay £1,800 +VAT (for the part of the hearing about whether it could split itself into multiple parties).

The judgment touches on one other topic and that is how the litigation has been conducted so far. The TVG applicant is a ‘litigant in person’ – by contrast all the other parties have both solicitors and barristers acting for them. We raised various examples of what we believe to be unreasonable conduct on behalf of the claimant – for example, Kathy has been subjected to demands for various undertakings along the way by the school’s solicitors, allegedly on the basis that these were required to comply with the rules of civil procedure. While the Judge chose not to engage with each of the examples we set out, he has made it clear that those specific demands were not justified and that, if the other matters were substantiated ‘it would tend to show that the litigation was not being properly conducted’.

So what happens next? We hope that the school will take stock of its position. It has spent several tens of thousands of pounds on this litigation so far – more than half of the £70,000 it said it could afford to spend on the whole case, and we’ve barely even started yet. Cotham must now pay us a further £9,000. It’s time to stop. In the interests of the pupils and the longer-term interests of the school, it’s time for governors to call time on this. The school is fully aware that it can provide effectively safeguarded PE lessons at Stoke Lodge. It might want a fence, but it doesn’t need one and it’s not entitled to one. It’s time to draw a line under this and enjoy Stoke Lodge for what it is – a beautiful, historic Village Green.