A judgement was handed down on the 27 June 2013 resulting from an application by Derbyshire CC for a judicial review of the decision of the High Peaks Magistrates' Court to award costs to Kate Marlow in respect of her action against Derbyshire under s 130A Highways Act 1980. The application was denied and costs are to be awarded to Kate Marlow.

Kate Marlow first approached Jenny in early 2011 when she had no legal representation and was most confused about what Derbyshire County Council were telling her. Jenny considered the ‘bundle’ she supplied and thought she had an excellent case to answer. Kate approached Jacqui Mann (of Nigel Davis solicitors) who, in turn instructed Celina Colquhoun and Philip Williams (of No.5 Chambers, Chancery Lane, London) who agreed to take the case on a conditional fee basis and Jenny was appointed to be the expert throughout all the various hearing when called upon to do so.

Judgement of the case can be found at: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2013/1762.html&query=Derbyshire+and+High+and+peak&method=boolean

It has been a hard battle but well fought and won - eventually. Works to clear the obstruction are now underway but many question remain to be answered on the council’s side, namely;

  • Parker J says of the council ‘I do not find that the Respondents have acted dishonestly or in bad faith, but that they have acted unreasonably, causing unnecessary delay and significant additional costs, consistently throughout the life of this case …
  1. Ms Marlow has persevered and stood out as a beacon of commitment and reasonableness to her cause, identified in her application, and in my view she must be reasonably compensated for the costs she has necessarily and properly incurred in successfully bringing these proceedings against what I regret to say has been an intransigent and misleading public authority.
  2. In my judgment this matter could, and should quite properly have been settled months, if not years ago, at relatively modest cost to the Respondents,
  3. … in relation to encouraging public authorities to make and stand by honest, reasonable and apparently sound administrative decisions, made in the public interest, without fear of exposure to undue financial prejudice if their decision is successfully challenged – what we have in this case is a public authority which has dragged its feet for a considerable period of time, and altered its position in important matters of principle, at times, supporting and indeed virtually encouraging Ms Marlow in her pursuit of seeking the removal of the unlawful obstructions, only to alter their position, contest this matter and then just days before a three day scheduled contested hearing sign a Consent Order in effect agreeing to all that the applicant has sought from day one.
  4. the Council's conduct fell significantly short of what could reasonably be expected of a public authority.

This is public money and I am of the opinion that an inquiry needs to take place to establish

  • who made the decisions internally (before and after Ruth Stockley came on-board) to continue contesting this case when it was clear there was an obstruction and it was the councils duty to ‘assert and protect’ the public’s right to use of the highway.
  • What were Cabinet and/or councillors told with regards the costs of this case as they kept creeping up ?
  • Who gave the authorisation for the case to continue knowing that they were likely to lose as, if anybody had have read the case notes, the writing was clearly on the wall ?

To all those local authority officers who think members of the public and their advisors know nothing. I, for one am more than happy to try and resolve problems that may have gone further than they should have but we, the advisors, do know our stuff and we need to be listened to, trusted, argued with and challenged but not rejected out of hand. Take this judgement as a lesson, learn and act on it.

See attached article to be published in IPROW Waymark January 2014.

See also Nicholas Dobson's article in the Law Society Gazette at

http://www.lawgazette.co.uk/in-practice/changes-position-intransigent-and-misleading-public-authority

 

For further details, advice or assistance contact

Jenny Trevor on +44(0)207 193 2053 or go to 'contacts us'