[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> BT3G Ltd & Ors, R (on the application of) v Secretary Of State For Trade & Industry [2001] EWCA Civ 1539 (17 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1539.html Cite as: [2001] EWCA Civ 1539

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr Justice Silber

		Royal Courts of Justice Strand, London, WC2A 2LL
		Wednesday, 17th October 2001

1. LORD PHILLIPS, MR: The court has to deal with two applications for costs by Vodafone. The first relates to the costs of a hearing before Laws LJ, which occurred in these circumstances. An issue arose as to whether Vodafone had a right to appear on this appeal as a party. That issue was canvassed before Master Venne who concluded that they were entitled to appear as of right and so directed.
2. That decision was then challenged by the appellants before Laws LJ. He did not reach a final decision on the point of jurisdiction, but expressed the opinion that Vodafone were not entitled to appear as of right. He went on to order that they should, nonetheless, be permitted to appear as a matter of discretion.
3. Although the transcript does not record the fact, it seems that he then ordered that the costs of that hearing should be in the appeal. Mr Gordon QC has submitted that the effect of that order was that the costs order before Laws LJ should be the same as the costs ordered to be paid on the appeal. This matter has not been canvassed deeply, but our initial response to that submission is that it is not right but that, where there is an order that costs should be in the appeal, that means that the costs shall follow from the result of the appeal and if a party is successful on the appeal that party will get the costs below.
4. We can conceive of situations where the successful party on the appeal will not get the costs of the appeal, but that is no reason why they should not have the costs below having been successful. This may well be such a situation. If we are wrong on that, then we consider that "costs in the appeal" must be left to the appellate court to decide the appropriate order in respect of that head of costs. If the matter is in our discretion, we reach the same conclusion, which is that Vodafone have their costs before Laws LJ, having been successful before him. Whether or not they recover costs here is an independent question. The question before Laws LJ was whether they should be entitled to appear on the appeal, even though they might be at risk of not recovering their costs of doing so.
5. As to the costs of the appeal, we have been referred to the case of Bolton Metropolitan District Council v Secretary of State of the Environment [1995] 1 WLR 1176, a decision of the House of Lords. The circumstances in which more than one set of costs can be awarded is multi-party litigation.
6. In a helpful skeleton argument, Mr Nicholas Green QC and Mr Andrew Henshaw summarised, in my view accurately, the propositions to be derived from that decision as follows:

"(a) The fundamental rule is that there are no rules. Costs are always in the discretion of the court.

(b) Where there is multiple representation, the losing party will not normally be required to pay more than one set of costs, unless the recovery of further costs is justified in the circumstances of the particular case.

(c) The interested party will not normally be entitled to its costs unless either:-

(i) there was likely to be a separate issue on which he was entitled to be heard, ie an issue not covered by counsel for the Secretary of State, or

(ii) he has 'an interest which required separate representation'.

(d) A second set of costs is more likely to be awarded at first instance than in the Court of Appeal or House of Lords 'by which time the issues should been crystallised, and the extent to which there are indeed separate interests should have been clarified'."

7. Mr Henshaw has submitted that there was here a separate issue and that Vodafone had an interest which required separate representation.
8. The separate issue upon which he relies is the possibility that, if the appeal were allowed, the appropriate relief that the court would then order would be that Vodafone would make a payment designed to put them in the same position as if they had had to pay for their licence as soon as the conditional grant was made. How live a possibility that was is a matter which would require considerable debate and argument in which the Secretary of State would have an interest.
9. We raised as an aside in our judgment that it was at least a possibility. It seems to me that it was and is. But, if that were to be the result, there would had to be, first, a further hearing at which the appropriate relief, would have been canvassed and Vodafone would have been entitled to be heard at that hearing in relation to that relief.
10. Mr Henshaw's strong argument is that Vodafone did have a substantial interest in the appeal which justified their taking part in it. That interest can be put in two ways. First, the possibility that the appeal might be allowed, which would then open the further possibility that they might have to make a compensatory payment. Secondly, there was clearly another commercial interest which they had, which was to resist a result which might involve their competitors receiving very substantial sums, a stance Mr Vaughan described as a "dog in the manger" stance. I suspect that this was the major commercial interest they had in seeking to take part in the proceedings. That is not an interest which should be reflected by an award of costs in their favour.
11. As intervenors they are not directly covered by the principle in Bolton. It seems to me, however, that, in practice, precisely the same approach should be adopted. The court should look at the substance. When that is done, it does not seem to me that they had any justification for separate representation which entitles them to have an award of costs on the appeal.
12. For that reason, I would dismiss their applications for the costs on the appeal.
13. LORD JUSTICE HENRY: I agree.
14. LORD JUSTICE BROOKE: I agree.