Warning: what follows is pretty dry, but it’s important to get accurate facts out there to combat deliberate misinformation.
TLDR: The community did not refuse any costs capping offer – Cotham School deliberately excluded us from its £20k deal with the Council and then argued for the community to bear 90% of the costs of the litigation.
On 15 July the High Court handed down a decision about the allocation of liability for costs, following its ruling that Stoke Lodge should not have been registered as a Village Green.
The general rule in litigation is that the unsuccessful party will be ordered to pay the costs of the successful party (subject to the court’s discretion, taking into account the conduct of the parties, justice and fairness, etc). Normally, where a public authority (here, Bristol City Council) has actively sought to defend a decision (here, to register a new Village Green) and is unsuccessful, the public authority is ordered to pay the successful claimant’s costs. But in this case, Cotham School argued (vindictively in the view of the community) for our representative, Kathy Welham, to be allocated 90% of the costs* and the Council only 10% – and the Court gave Cotham what it wanted. Our community has been landed with a large bill to pay in a short time, as reported here: ‘Stoke Lodge campaigners hit with ‘vindictive’ £90,000 legal bill‘.
We understand that Cotham School representatives have tried to justify this by claiming that Mrs Welham rejected an agreement to cap her potential costs liability, but this is untrue and reflects very poorly on the school. Here are the facts.
In late 2023, Cotham School launched this court action, listing the Council as two defendants: (1) landowner and (2) Commons Registration Authority. The Council as landowner suggested a costs capping agreement among all parties, stating that its proposal was made in recognition of the importance of the community being able to play a full part in proceedings. Cotham School was at the time seeking a costs protection order from the Court (and was also saying how important it thought community participation was). Mrs Welham said she would discuss costs capping once the school’s costs application had been dealt with.
The Council as landowner was struck out as a party to proceedings following a hearing in January 2024, so its proposed agreement fell away. At the same hearing, the school’s application for costs protection was rejected (judicial review-style costs protection is not available for this type of claim). The school said it would appeal that decision, and it had until 15 March 2024 to do so.
Just before the 15 March deadline, the school decided not to appeal the decision on costs protection. This was the point at which Mrs Welham had indicated she would discuss costs capping arrangements. However, one working day later, on Monday 18 March 2024, the school’s solicitors wrote to Mrs Welham taking any costs capping discussions off the table.
A couple of things to note about this – first, it’s clear that the school knew that Mrs Welham thought there would now be a discussion about costs capping, otherwise it would not have paid to have its solicitor send that email. Secondly, Cotham School rejected costs capping discussions, not Mrs Welham. Our understanding is that this was a strategy intended to force the community out of the litigation. However, as noted previously by both the Council and the school (see above), it is very important – and totally normal – in a case like this for the TVG applicant and local community to participate actively in defending their Village Green. And the First Defendant was the Council, which was robustly defending its decision to register Stoke Lodge as a Village Green.
Mrs Welham then became aware that the school had made a fresh approach to an officer at BCC Legal Services (for the Commons Registration Authority/CRA) about making a two-way agreement – correspondence which deliberately excluded Mrs Welham and which has never been disclosed to her despite multiple requests. The rule previously set by the CRA was that correspondence between any of the parties must be copied to all parties – but an officer chose to break that rule and agree to a different form of costs cap limited to the Council and the school (£20k each way), deliberately excluding Mrs Welham. You can watch on this link a video of the April 2024 Public Rights of Way and Greens Committee** at which the community expressed anger during public forum (around 11mins 30 to 14mins 10) that a CRA officer had been liaising with the school behind Mrs Welham’s back. At around 9mins 45 seconds Mrs Welham asks the Committee to confirm that the Council would not sign a consent order on costs capping unless it included all parties. No such consent order was ever put before the Court – the agreement between the Council and the School remains (so far as we know) in undisclosed emails only.
Mrs Welham never rejected any form of costs capping agreement – she simply said that she would wait for the outcome of the school’s legal actions seeking to get costs protection from the court. In the period after the January 2024 hearing, Cotham School never made any approach to Mrs Welham to discuss costs capping, but it did actively seek and reach an agreement with the Council, deliberately excluding Mrs Welham. And then the school chose to refuse any discussions on costs with Mrs Welham.
The school’s repeated misleading statements about the details of the costs capping arrangements do not show it in a good light. It was made clear in court (see BBC report on this link) that instead of making an agreement with Mrs Welham, Cotham School purchased much more expensive ‘after the event’ insurance (although the Finance Officer was unable to remember how much it cost). It would have been cheaper and less hostile for the school to make an arrangement with Mrs Welham, but it chose not to. Due to the high (and unrecoverable) cost of that insurance, the school is unlikely to be much better off having excluded Mrs Welham from costs capping arrangements than if it had behaved fairly and properly.
But costs capping agreements do not determine the allocation of liability by the Court, and the school actively sought to persuade the Court to allocate liability on a 90/10 basis, rather than a 50/50 split between the two defendants or some other ratio. In our view, this highlights again Cotham School’s attitude towards our community. As Kathy Welham has said:
“We, however, are standing by our commitment and obligations, and I would like to emphasise that we hope that the money that is (unjustly, in my personal view) being required of me and my supporters, will be used to help mitigate any detriment to Cotham School pupils flowing from the effects of the school’s multiple legal actions on its reserves of education (public) money.
Finally, we as a community remain incandescently angry that our last accessible, neighbourhood green space, that we love deeply, and which has been relied upon for many decades by the thousands of Bristol citizens who share it with Cotham School, is again in danger of not being protected as it should be. Our commitment to protect the land for future generations is undiminished.”
*These percentages are based on the costs budget set by the Court at an earlier stage, and the total is significantly less than the amount Cotham School has actually spent on litigating this matter: see this BBC report ‘A court in Bristol has heard how a school spent hundreds of thousands of pounds over a fence’.
** This was also the meeting at which Sandra Fryer, Cotham School’s Chair of Governors, and another Cotham School representative attracted press attention for filming members of the community: https://www.bristol247.com/news-and-features/news/stoke-lodge-campaigners-filmed/
We need to talk about Stoke Lodge 