Category: BCC’s actions

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/

As you know if you’ve been following our story, Bristol City Council has been prevented by the High Court from appearing in two different capacities in the litigation brought by Cotham School to challenge our TVG registration.

Cotham School had planned for the litigation to be structured as:

Now, there are a few things wrong with this. One, as clearly identified by the High Court, is that BCC is a single corporate body and cannot appear in two capacities in the same litigation (even on the same side and even if it was making the same arguments in both capacities – it is even less possible for it to become a claimant and sue itself).

Secondly, the Public Rights of Way and Greens Committee was outraged to discover that the CRA was planning to take a neutral position in the litigation rather than defending the Committee’s decision, and had taken that position without even asking them.

Both of those issues have now been corrected – BCC will be one defendant, represented by the Commons Registration Authority, and will actively defend the decision to register Stoke Lodge as a village green. So now, the case has a significantly different structure, with far greater costs risk for Cotham than it anticipated when it launched the claim:

But the third thing that’s wrong is that officers acting for ‘BCC as landowner’ ever thought they could take action to challenge a decision made by a fully delegated regulatory committee. This triggered a furious reaction from Councillors on the PROWG Committee in January (you can read more about this in our previous post here). Since then we have continued to ask how this could have happened, since both local government regulations and the Council’s own constitution make clear that the Executive may not interfere with matters relating to village green decisions (just as the Executive may not lawfully interfere with planning decisions).

A response to an Audit Committee question has now revealed that the external costs incurred by BCC officers trying to challenge the PROWG Committee’s decision were £12,700 (plus £2,400 for the CRA which also argued for BCC to be allowed to split like an amoeba and act in two capacities) – plus, in real terms, the £1,800 BCC has had to pay towards our costs on this matter: £16,900 of taxpayers’ money, not including all the officer time spent. The public forum papers for this meeting are here.

Questions were also asked at the Growth and Regeneration Scrutiny Commission meeting. The Public Forum papers for this meeting are here. In response to a question about whether Council resources – both in terms of money and officer time – have been directed appropriately in relation to Stoke Lodge, the following answer was given:

There are two points to underline here. First, the Council has not sought to take over the Cotham School claim – but ONLY because the Court put a stop to its plans. Its firm intention to apply to become a claimant alongside Cotham School, and to continue the claim if Cotham withdrew, was stated in writing and is not deniable.

Secondly, this is the first formal confirmation that in seeking to overturn the PROWG Committee’s village green decision, officers were acting on the instructions of the Executive. So the question is – which member or members of the Executive gave those instructions? This was discussed in some detail during the Public Forum part of the meeting, as you can see on this link.

The odd part of the verbal exchange is that there seems to be no recognition that the Council has a constitution and that officers were acting in breach of it – whether on the instructions of the Executive or not. The number of parties allowed in litigation is to do with court rules about civil procedure – that’s a separate point to the issue that once a decision is taken by a regulatory committee, that is the position of the Council – end of. Anything else is unlawful interference by the Executive. As Councillor Mark Weston said: “The Council tried to break the law – who signed off on the attempt to break the law?” The answer provided was: “I don’t have anything further to say on that.”

We intend to keep asking the question, not least because there is a wider concern – given that there has been so little regard for BCC’s own constitution in our case, there is a critical question – have the decisions of other regulatory committees also been affected by unlawful executive interference?

On 24 January 2024, Court 7 of the Bristol Civil and Family Justice Centre was more crowded than usual. Four parties had been brought to court at the order of the Judge, to put arguments on two issues:

• Was BCC entitled to be more than one defendant, as proposed by Cotham School? Two BCC legal officers and one barrister were there to make that argument, with a second barrister sending written submissions.
• Was Cotham School entitled to any form of protection from adverse costs risk in this litigation it had started? The normal rule in litigation is that the loser pays the costs of the winner but in some types of case, certain types of litigant can be protected from this in order to be able to bring their claim.

What did the Court decide? For the long version, you can read the judgment here.

1. Bristol City Council must ‘sail under one flag’

A whole morning was spent arguing that BCC could be two entities in this claim (and we know, but the Judge was not formally aware, that the ultimate agenda of Cotham School and BCC officers was for one of those entities to ‘jump the fence’ and run the litigation for Cotham School even though this would mean BCC suing itself). The Judge was having none of it:

‘As I have already said, the first issue for me to decide is whether the City Council should continue to appear in two places on the court record, as both first and third defendant, with two entirely separate legal teams, potentially arguing inconsistent cases, or whether it should have a single place and a single legal team, albeit comprising several team members, who might have different responsibilities and skills. This is an entirely procedural matter, dealing with the rules of procedure for litigation. There are a number of authorities which bear upon it, and in my judgment they embody a procedural rule.’ [22]

‘The purpose of the rule is not only to reflect the practical reality that a single legal person ought not to be capable of adopting different positions in the same litigation, able to blow hot and cold simultaneously (or, as Sills J put it in Theriault v Theriault, 2007 CanLII 13519 (Ont SC), [3], “to suck and blow at the same time”). It is also to avoid unnecessary legal complication. Multiple legal representation takes longer, can produce duplication of effort, and leads to multiple sets of costs. There are also potential problems of claims between the different emanations of the same person, of set-off between that person and others, of making costs orders against one emanation and not another, and of enforcement of orders more generally. The rule is a sensible one in the context of litigation.’ [28]

‘In my judgment, on the facts of this case, there is no good reason why the Hardie & Lane rule should not apply. The City Council should appear on the record once only. I will order that the two acknowledgments of service filed by the City Council be withdrawn, to be replaced by one such acknowledgment setting out its position in relation to the claim. The City Council may participate in these proceedings represented by one legal team and funded by one set of costs. But it is of course open to the City Council to have more than one barrister appearing in court, for example, to deal with different legal specialisms. However, they must all sail under one flag. If the City Council considers that it has a conflict which prevents it presenting arguments in support of any particular interest, then an appropriate person will have to be joined to ensure that that interest is represented. The court would obviously co-operate in that endeavour.’ [63]

2. Costs

Cotham School argued that it was entitled to protection from the costs of its litigation on three alternative bases. The first is referred to as ‘Aarhus Convention’ costs, and (broadly) means that if a member of the public challenges the decision of a public authority on a matter relating to the environment, they may be entitled to protection from adverse costs risk. By default this would mean that the claimant could not be ordered to pay more than £10k of the costs of any defendant, and that no defendant could be ordered to pay more than £35k of the costs of any claimant.

But the school’s problem is that this type of protection is only available for judicial review claims and for certain types of ‘review under statute’. And it’s very clear that an application for the Court to hear all the evidence and make a decision in this type of claim is not a review of a previous decision, it’s a brand new decision made by the court.

‘In my judgment the nature of a claim under section 14 is that of a freestanding claim, de novo, that the land the subject of the claim does not meet the statutory criteria for a town or village green, and that therefore the amendment of the register constituted by the registration of the land should be reversed. Although a decision under section 14 to reverse the earlier entry would mean that the earlier decision to register the land was wrong, and therefore made in “error” (a word used by section 14(b)), this claim is not a review of that decision. If it were, then for one thing the court could not receive evidence not before the original decision-maker (at all events unless there were circumstances corresponding to those in the well-known decision in Ladd v Marshall [1954] 1 WLR 1489, CA). Indeed, the claimant has adduced such evidence in these proceedings, so the point is not an academic one. One would also expect to find a time limit for the application to be made. Yet there is none.

I conclude that this claim does not fall within the words “review under statute” in rule 46.24(1), and this is not therefore an Aarhus Convention claim. I emphasise that this is the result of a decision by the Civil Procedure Rules Committee to confine the definition of such claims in this way… I must apply the rule as it is. I am a judge, and not a legislator. Accordingly, in my judgment there can be no Aarhus Convention costs protection in this case.’ [92-93]

A similar hurdle prevented Cotham getting a Protective Costs Order in the form of Court of Appeal authority that was binding on the Judge:

‘I do not see how in those circumstances I can properly “side-step the limitation … that has been deliberately imposed by secondary legislation”, as the Court of Appeal said in Venn. That would be for me, sitting at first instance, to take the step which the Court of Appeal (with regret) declined to do. In my judgment, only the legislature can take that step.’ [99]

And as to the idea of a ‘costs capping order’, the Judge felt the matter was better dealt with by having the parties produce budgets for their future costs.

Why is the costs issue so important?

The Judge had some points to make about costs, too. He noted that the community’s costs to date are around £45,500 ex VAT. From our perspective, this is partly because we’ve had to argue against two parties (one of them being BCC as a supposed defendant but trying to fight for the school). Cotham School has filed a costs budget for the whole process of £100k, but has also said that the one-day hearing on 24 January cost it £23,500 (more than the annual salary of a teaching assistant, and a quarter of its projected budget for the whole process – so that £100k projection looks very undercooked). It also submitted a sworn statement that it could not afford to allocate more than £70k for its own costs and any adverse costs risk (which doesn’t sit well with its £100k projection either). As a result of losing its arguments on costs, the school will have to pay all or most of the community’s costs of this hearing (which were £25k plus VAT). Litigation is really expensive and most of the school’s ‘allocation’ for this has already been spent. That money could (and should), of course, be spent on education rather than litigation.

So what’s next?

There’s quite a long ‘to do’ list following from the judgment. Sorting out who pays for the costs of the 24 January hearing is one element. BCC has to file a new acknowledgement of service as a single defendant, setting out a single coherent position (rather than as previously, saying it would both contest and not contest the claim while also remaining neutral). If the case continues, there will be a case management conference to arrange how things proceed (dates for witness statements to be submitted, costs budgets, etc).

But Cotham School’s initial reaction to the judgment is that it might spend more education money on going to the Court of Appeal to argue again that it needs to be protected from the costs of this litigation that it started.

The key point is this – Cotham doesn’t have to run any legal challenge at all. Ofsted and the Department for Education are absolutely clear that there is no requirement for detached playing fields to be fenced, so Cotham can do PE on Stoke Lodge Village Green just as it has done for years. We’re happy, as we’ve always been, to sit down and talk to Cotham about moving forward together – we hope that HHJ Matthews’ decision provides the incentive they need to finally accept that offer.

It’s been a while since our last post, but a lot has been happening! Here’s the inside track.

Stoke Lodge was registered as a village green on 22 August 2023. That matters because the register is conclusive evidence of everything in it and only the court has power to amend the register now. Here’s the entry:

At the end of November, Cotham School issued proceedings under section 14 of the Commons Registration Act 1965 to ask the High Court to consider whether this entry should remain as it is, or be amended or removed. We talked about this process in earlier blog posts here and here. That means, essentially, the High Court examining all our evidence to check that the legal tests are met.

Cotham School chose to launch this claim against three defendants: (1) Bristol City Council as Commons Registration Authority [the CRA has to be a party, otherwise any instruction regarding the register would not be binding on them]; (2) Katharine Welham, the TVG applicant on behalf of the community; and (3) Bristol City Council as Landowner. So Bristol City Council is listed as two defendants, and that’s partly what triggered the court hearing this week – the Judge wanted to know why the case had been set up that way.

Here is Cotham School’s explanation, which they published on 10 January 2024:

So Cotham’s plan, from the start, was that BCC would object to the registration of the land even though BCC itself had registered the land. It’s interesting that the school went public with this before any other information about it was in the public domain – perhaps in an attempt to make sure BCC did what it wanted?

What’s peculiar is that on 10 January, none of the parties knew that the Judge was about to call everyone to court to ask questions about how Cotham had set the case up – that only happened on 12 January. It appears that before then, Cotham School was 100% confident that it had the position sewn up and that in very short order the parties would change to: Cotham School and BCC vs BCC and the community.

But putting this into the public domain started a firestorm that was in full force at the Public Rights of Way and Greens Committee meeting on 22 January. You can watch the meeting on this link. Councillors were unanimous in their opposition both (a) to the suggestion that their decision to register was not being actively defended by their lawyers, and (b) to the idea that other officers in the Council were attempting to challenge and undermine that decision.

What’s important to know is that decisions about village greens, like planning decisions, are fully delegated to the relevant committee under the Council’s constitution. By law and by the constitution, they are not matters for the executive or for political interference, and Committee members were clear that the Council would never try to challenge a decision of a planning committee. So what was going on here? Councillors used words like “shocking”, “abhorrent”, “bizarre”, “disrespectful”, “unlawful” – you can see local press coverage of the meeting here and here. As Councillor Jackson said:

“This is a precedent and I’m absolutely disgusted that we are actually talking about this. Someone up that chain of decision-making decides to ignore what we’ve said? That cannot be the case, and that cannot ever happen on any regulatory committee that elected members are overturned because someone decides that what we said, they didn’t like.”

And so the way Cotham set up the case failed to take account of both:

• the fact that the Council is a single corporate body and can only be one party to any legal action; and
• the constitution of the Council itself, which delegates all issues relating to village greens to the PROWG Committee. Officers cannot override the Committee’s decisions on a whim.

Right now, we’re awaiting the formal decision of the Judge from the hearing on 24 January, but as reported here, he was clear on the day that the Council ‘was not like an amoeba that could split in two’: ‘there is only one Bristol City Council. It has a lot of different duties and powers but it’s only one entity.’

Dealing with extra challenges like this obviously makes this expensive legal process even more costly. If you’d like to help defend public access to Stoke Lodge, and help us ensure that the opposing parties have to play by the rules, you can donate here: https://www.gofundme.com/f/we-love-stoke-lodge-legal-funds or contact us at welovestokelodge@gmail.com. We’re very grateful for your support!