Costs hearing at Arches Court

In refusing the Victorian Society permission to appeal on the removal of pews from Bath Abbey on 1 March 2018, ([2018] EACC 1), the Dean of Arches directed that the Victorian Society (VS) should bear the petitioners’ reasonable costs of submitting the Response and the court costs of considering and determining the application. On 8 March 2018, the VS submitted a Representation on Costs (“the Representation”), dated 5 March 2018. “In purported reliance on Re St Mary, Sherborne [1996] Fam 63, the Victorian Society contends that the court costs on appeal should be paid by the petitioners irrespective of whether they have been successful or not on the appeal (at 70C)” .

Background

Following the consistory court hearing Re: The Church of Saint Peter and Saint Paul, Bath (Bath Abbey) [2017] ECC B&Wl on which we posted here, the chancellor allowed, subject to conditions, a petition for the removal of the nave pews and their replacement by chairs of a particular design, notwithstanding the objection of the Victorian Society as party opponent. Permission to appeal was refused by the chancellor, but the Victorian Society subsequently renewed its application for permission to appeal to the Court of Arches. 

At the Appeal hearing, Re Bath Abbey [2018] EACC 1, the Dean analysed the points raised by the VS and concluded:

“[13]. …in the present instance, whilst its initial objection was entirely understandable and the issues deserved the close scrutiny which a consistory court hearing involves (and did involve in this case), I am satisfied that its application for permission to appeal does not meet the test of having a real prospect of success. Nor do I consider that the undoubted importance of Bath Abbey (or any other matter) is such as to provide “some other compelling reason why the appeal should be heard”, nor does the Victorian Society so contend”.

We summarized the case here; subsequently, the Court issued its decision on costs: Re Bath Abbey [2018] EACC 2

Decision on costs: Re Bath Abbey [2018] EACC 2

Relying upon Re St Mary, Sherborne [1996] Fam 63, the Victorian Society contended that the court costs on appeal should be paid by the petitioners irrespective of whether they have been successful or not on the appeal (at 70C) [2]. It submitted that there should be no order for costs as between the parties for three reasons:

(a) the court should be reluctant to penalise a statutory amenity society, even if it is held to have been wrong to seek permission to appeal;

(b) this is especially so where the financial resources of the church in question are large and those of the Victorian Society relatively small (its last audited accounts for y/e 2016 showed total gross income of “only £618,166”);

(c) any costs awarded should not extend to the petitioners’ costs of employing counsel and solicitors (Sherborne at 70F-G), and since the petitioners’ non-legal costs are likely to be trivial, none should be awarded.

The Dean of Arches considered the award of court costs and of parties costs in the circumstances of an unsuccessful application for permission to appeal.

Court costs

Following a substantive hearing of the Victorian Society’s appeal in In re St John the Baptist, Penshurst (No.2), 30 March 2015 unreported, the Court of Arches, gave detailed consideration to the approach in such cases to court costs, and described the approach in Sherborne to court costs as one which it saw no reason to change (para 15). The Dean noted that where permission to appeal has been granted, there is generally a public interest in the hearing taking place ( Sherborne at 70A).

Where an application to appeal has been refused, however, there is no public interest in encouraging hopeless applications for permission; rather the opposite. It has been the invariable practice of the Dean in recent years to order unsuccessful would-be appellants to pay the court costs [3]. He said:

“[5]. …Sherborne apart, the only matter identified in the Representation is the disparity between the wealth of Bath Abbey and the modest means of the Victorian Society. A somewhat similar, albeit stronger, argument was rejected in Re St James, Kidbrooke, [2017] EACC 2.

[6]. Accordingly there will be no change to the terms of the original order in relation to court costs, save that those court costs will include those of consideration and determination of the Representation.

Parties’ costs

The Dean readily accepted that statutory amenity societies should not be discouraged from participating in the faculty jurisdiction, including appeals. However,

“[7]. …”both on a substantive appeal and where permission to appeal has been refused, there is no sound reason why they should be exempt from a normal parties’ costs order. The costs of the petitioners on this occasion are unlikely to be considerable, and I do not regard the limited means of the Victorian Society as a reason for departing from the normal order”.

[8]. …in Sherborne the petitioners (unlike the Victorian Society in that case) were not represented by solicitors or counsel (at 70H). The appeal court did not rule that legal costs would never be allowed, merely that on the facts of that case “it is very unlikely that in any event we would have made a costs order to cover such legal representations” (at 70H-71A). In recent years following substantive appeal hearings, no attempt appears to have been made to disallow costs of legal representation, although it is often now the case that legal representation is given on a pro bono basis.

[9]. Be that as it may, in cases where applications for permission to appeal have been refused, the parties’ costs order has always included the costs of legal representation, although in Kidbrooke between the decision refusing permission to appeal and the decision on costs, the petitioners generously waived their entitlement to recover any costs (para 2).

[10]. In the present instance it was clearly appropriate for the petitioners to instruct Counsel to settle a Response to the Victorian Society’s Reasons and Grounds (both of which had been settled by Counsel).

The Dean concluded  “[a]accordingly there will be no change to the terms of the original order in relation to parties’ costs”; he also expressed regret that “the making of this Representation has inevitably increased the amount of the court costs. [He] deliberately did not seek a response to the Representation from the petitioners, because that would only have added to the amount of the parties’ costs which [he] would have then ordered the Victorian Society to pay.