HL Deb 03 April 1984 vol 450 cc598-607

3.12 p.m.

The Chairman of Committees (Lord Aberdare)

My Lords, I beg to move that the Bill be now read a third time.

Moved, That the Bill be now read a third time—(Lord Aberdare.)

The Earl of Kinnoull

My Lords, I should like briefly to intervene at this stage to draw attention to the Special Report from the Select Committee on this Bill on the question of petitioners' costs. I say at once that 1 am grateful to the noble Earl, Lord Listowel, the chairman of that Committee, for making available that report even if I did not agree with the committee's decision.

It all arose from an application by the petitioners, Trinity House and Tower Hill Trust, for the costs of fighting their case—an environmental battle—against London Transport which had amounted to the staggering sum of £35,000. It proved a victory, I am glad to say, in preserving one of London's oldest and historic landmarks—a victory, indeed, for the public good but a pyrrhic victory in terms of the crippling costs.

Certain noble Lords—particularly the noble Lord, Lord Beswick, who I know has been following this Bill with his usual parliamentary care—have been following the Bill's progress. The issue of the ticket hall proposal, at Tower Hill Underground, which was the nub of the problem in this contested case, was of course only a small part of the major Bill which concerned the new rail link between London Docks and the City. The ticket hall proposal came under Clause 16 of the original Bill with powers of compulsory purchase and powers as regards planning consent for the new building.

I hope that the House will not mind my recalling briefly what happened. Just prior to the deposit of the Bill London Transport had cursory consultations with the local planning authority as to the design of this ticket hall. No consultation whatever was held with the landowners involved—Trinity House—despite the fact that as a body they have been trustees of that historic site for over 200 years. In fact, Trinity House only heard about the proposal a month after the Bill was deposited. They were appalled at the insensitive design, but the question that arose was how were they effectively to fight the proposal, particularly as London Transport showed no remorse or any desire to redesign this ticket hall. Trinity House decided, on advice—and I think that they were absolutely right—that they could not simply say, "We do not like this proposal". That is not enough in today's techniques of opposing effectively planning proposals. It would have been all too easy if they had said that, but it would also have been all too easy for London Transport to claim that the technical operational and cost constraints made their proposal—that is Scheme 1—the only sensible answer.

Trinity House took it upon themselves to appoint immediately an independent consultant to advise them and, indeed, to devise a credible alternative proposal that would have a minimum impact environ-mentally. It was produced in two months and it was rejected by London Transport four months later on the grounds of cost and operational problems. But it achieved its goal, because what happened then was that London Transport instructed another independent consultant, at a cost we do not know, who came up with Scheme 3. Scheme 3, with certain modifications, met the approval of Trinity House, the Governor of Tower, the local planning authority and no doubt many other amenity bodies, and was generally acceptable. It was a victory for sensitive and responsible planning, achieved for the public good but, as I have said already, at very great personal cost to Trinity House.

But the cost did not stop there, because London Transport then discovered that Scheme 3 went outside the limits of deviation of the original Bill and so they sought leave of the Select Committee to strike out this entire clause and so promote an entirely new Bill for this purpose. Because of all this additional work the Trinity House parliamentary agents sought a contribution directly from London Transport, and they sought £10,000 which was roughly a third of their costs. The reply eventually came that London Transport would offer an ex gratia payment of £2,000, but subject to Trinity House not seeking costs from the Select Committee.

The transcript of the proceedings of that Select Committee, which I have studied very carefully, showed that the petitioners put forward two arguments to the committee to support why they considered that they had been put to unreasonable cost by the promoters to defend their rights. The first was that there had been no prior consultations which they claimed—a claim I think I would support—could have avoided a great deal of abortive costs. I must say that I found that argument compelling in those special circumstances and was disappointed, frankly, that the Select Committee's report did not even refer to this question of prior consultation. No doubt the noble Earl, Lord Listowel, will deal with that later on.

The second argument that they put forward—and this is to me even more compelling—was that the promoters, having withdrawn part of a Bill and promoted another Bill, of course incurred abortive costs, and indeed unreasonable cost to those who were fighting the case. No reference was made to that in the Select Committee's report either. Instead, I humbly suggest that the report seemed to concentrate on the engineers' costs for Scheme 2 of £8,000 which had been incurred by the petitioners, but forgot completely to highlight—and I particularly say this to the noble Lord, Lord Foot—the fact that there had been legal costs of £21,000 which had grown and grown as the promoters came up with Scheme 3 and then the new Bill.

But perhaps the most disappointing aspect, and what I think seems to be patently unfair, is the £2,000 ex gratia payment offered to the petitioners by the promoters. During the proceedings of the Select Committee the noble Lord, Lord Foot, at the very end of the proceedings, on page 43, asked: "Is it"—that is, the offer—"still on?" The reply was: I am instructed it lapsed on its non-acceptance, but we are prepared to make the offer again; so again it is an open and standing offer upon those terms, of course". I suspect that none of the Members of the Select Committee really understood what "upon those terms" meant because, of course, they did not have the terms before them. I suspect that they thought, as I thought when I read it, that that offer in fact still stood. I am sad to say that I understand that it does not still stand, and indeed that London Transport have withdrawn it. What I suspect the reply really meant was that if the petitioners' parliamentary agent sat down immediately at the very end of the proceedings, then he would get his £2,000—not a wholly reasonable situation. On reflection, I would hope that the noble Earl, Lord Listowel, as chairman of that committee, might feel able to approach London Transport to see whether they would reconsider settling the sum with the petitioners, and so gain some good will out of this matter.

Of course, I accept the Select Committee's decision on this matter of not seeking a recommitment. But I suspect that if they had been given a freer rein, other than the constraints of Section 1 of the old 1865 Parliamentary Costs Act, a different decision would have been made. In my experience this is the second Bill in recent times that has disturbed me due to the lack of flexibility that committees have in awarding costs to petitioners. I cite the Shrewsbury Bill.

I believe that the time has come for the Chairman of Committees to look into this question of costs on Private Bills. Clearly, the 1865 Act is demonstrably too rigid and restrictive to meet modern-day needs. I would humbly suggest to my noble friend either that Section 1 of this Act should be repealed and the matter of costs becomes added to the standing orders of the House, or that Section 1 is amended to give greater flexibility to Select Committees to award costs. I believe that this Bill has demonstrated that need.

3.22 p.m.

Lord Foot

My Lords, I have a great deal of sympathy with the words that have fallen from the lips of the noble Earl. In my view, the decision that was made in this case on the matter of costs raises a question of general importance and one of particular importance about the procedures which are followed before Select Committees. Very briefly, I should like to recite the history of the matter slightly differently from the way is which the noble Earl recited it but I hope not distorting it in any way. It went like this.

The London Transport Executive promoted this Bill in order that they might be empowered to build a railway from the Docklands up towards the City. The terminus at the western end of the railway was to be in the neighbourhood of Tower Hill. In my view the noble Earl, Lord Kinnoull, is quite right when he said on 15th December 1983 in this House on Second Reading (at col. 352 of Hansard) that that site in the neighbourhood of Tower Hill is: Perhaps one of the most historical and environmentally sensitive landmarks in London". The noble Lord is quite right in saying that, as soon as the petitioners became apprised of what was about to happen, they immediately took action, and commissioned a report from a firm of engineers putting forward an alternative scheme to the one which had been put forward under the Bill by the London Transport Executive.

That scheme was evolved and was presented for consideration to the London Transport Executive, and after a period of time the executive indicated that it was unacceptable to them and they then proceeded to evolve a third scheme of their own. As a result, the detrimental effects that would have flowed from their original plan were averted. I think that the noble Earl agrees that the plan which eventually emerged was a vast improvement upon what had gone before, not only from the point of view of the petitioners in protecting their own properties, but also from the public's point of view in preserving the splendour of the environment.

Therefore, the situation was that, as a direct result of the second scheme evolved and produced by the petitioners, the Bill was amended and we were eventually faced with a very much more attractive proposition than we had been faced with in the first place. I think that it can be perfectly rightly said that the petitioners' opposition and the scheme which they persuaded the promoters to adopt resulted in radically altering the original plan, with the result that, in my view, the petitioners not only took proper steps to protect their own properties, but in forcing through the third scheme—which was so much more attractive—they performed a very useful public service.

Unhappily, however, when it came to the question of whether there was to be an order for costs against the promoters and in favour of the petitioners to compensate them in some way for the expense to which they had been put in putting forward their opposition, because of the terms of Section 1 of the 1865 Act—which is the Act of Parliament which governs this matter—we on the committee felt that we could not accede to the petitioners' request. The reason for that is that Section 1 of the 1865 Act provides in these very restrictive terms that: a petitioner shall be entitled to recover costs from the promoters"— and I omit the matters which do not here apply— When the committee … strike out or alter any provision of such Bill for the protection of such petitioner, and further unanimously report, with respect to any or all of the petitioners against the Bill, that such petitioner or petitioners has or have been"— and here are the important words— unreasonably or vexatiously subjected to expense.". So if the petitioners in this instance were to persuade the Committee to grant them an order for costs against the promoters, it was incumbent upon them to persuade the Committee that the promoters, the London Transport Executive, had indeed unreason-ably made them subjected to expense.

After considering the whole matter, we came to the conclusion that we should not go so far as that, and on that account we were precluded from making an order for costs. I agree with the noble Earl that it is high time we took another look at Section 1, because I know of no other jurisdiction or tribunal before which it is necessary for a person seeking costs to establish so restrictive a condition as that. That was an Act of 1865 and it is still the law which prevails in the procedures of Select Committees today. It is high time that another look was taken at that because the views about when costs are properly payable have undergone a very considerable change and alteration in the 120 years that have since passed.

There is another objection to this particular section which seems to me to reduce the matter almost to absurdity. As I said just now, it is provided that before a committee can order that costs shall be paid to petitioners, they must unanimously report that in their view the promoters have unreasonably or vexatiously made the petitioners subject to expense. On the face of it that seems to me to be quite ludicrous. If there must be unanimity, and if a Select Committee consists of five Members of this House with four of them in favour of awarding costs and one of them against, then they are not unanimous. As a result, it inevitably follows that the decision of the minority of one prevails over the decision of the majority of four.

That question did not arise in this case, may I say, because, rightly or wrongly, we were unanimous in the view that we took; but I pray that in aid of the argument that we ought to take another look at this extraordinary Act of Parliament in order that there may be some relaxation in the restictive provisions, but above all that this requirement of unanimity may be struck out from the test and from the Act. Therefore, I share the anxieties that have been expressed by the noble Earl, and I hope that as a result of this Bill we shall—and I hope with not too long a delay—set up some inquiry (I am not sure what the organisation should be) to see whether this is not indeed today in need of amendment.

3.32 p.m.

Lord Beswick

My Lords, I think that the House has reason to be grateful to the noble Lord, Lord Foot, for the constructive way in which he has followed what the noble Earl, Lord Kinnoull, has said. There is a case here for looking again at this 1865 Act, now 120 years old. There are certain factors that are different today as compared with those days in the middle of the last century. I feel that there has been injustice caused in recent months, or, I might say, in recent weeks, because a fortnight ago the Shrewsbury Bill fell by the wayside in the other place, but the Shrewsbury Football Club is still left with substantial costs to meet.

I felt when I read the Select Committee's report that any Select Committee that was chaired by my noble friend Lord Listowel would have looked at this issue carefully, and after listening to what has been said by the noble Lord, Lord Foot, I am quite convinced that they did consider what could be done but felt hampered by the provisions of the 1865 Act. At the same time, I am bound to say that London Transport did produce a Bill in November 1982, but it was not until December 1982 that the landowners, the charity concerned, heard about the terms of that Bill.

There are many people, including myself, who would think that that was unreasonable behaviour. I should like to have a situation in which the promoter of a Bill is encouraged, possibly by the question of costs being awarded later, to engage in consultation with interests concerned before a Bill is drafted and placed before the House. In view of what the noble Lord, Lord Foot, has said, I do not propose to say very much more. I hope that the noble Lord, Lord Aberdare, will be able to tell us that there will be some consideration by the appropriate people of this 1865 Act.

I make just one other point about the case of this particular charity. My understanding is that as a consequence of the amendment to the original Bill there is another Bill which will come before another Select Committee. I wonder whether it would be possible for that Select Committee to look again at the issue of the costs which have fallen upon the charity concerned. My own feeling in this, which I put before the House, is that instead of the overriding Act requiring a petitioner to prove that it has been unreasonably and vexatiously treated, surely it would be preferable if the Select Committee had to consider whether it was fair and reasonable to award costs in all the circumstances.

If it was looked at from that point of view I am quite certain that in this particular case, and possibly in the case of the Shrewsbury Town Bill, we should have had a different decision taken by the relevant Select Committee. I say again that I hope that the noble Lord, Lord Aberdare, can assure us that, using his authority, he will ensure that this question of amendment of the 1865 Act will be looked at.

The Earl of Listowel

My Lords, as your Lordships have shown considerable interest in this private Bill both in speeches on Second Reading and again this afternoon, it might be appropriate if I, as chairman of the Select Committee to which the Bill was referred, were to say something about the report and particu-larly about the costs incurred by two of the petitioners, the Tower Hill Trust and Trinity House. I should also like to say something about consultation, as that is a matter raised by speakers this afternoon.

So far as this matter of prior consultation is concerned, I would remind your Lordships that the promoters of a private Bill are under no obligation under our Standing Orders to consult interested parties, though it may of course be to their mutual advantage to do so. The committee on this Bill were told that in their case, owing to the urgency of the railway works, consultations were limited, but they were carried out to some extent both with the GLC and with Tower Hamlets, the responsible local authorities.

These consultations included discussion of the scheme for the first Bill, to which subsequently the petitioners objected on amenity grounds. At this stage, of course, the question of the charities incurring unreasonable expenses did not arise. The noble Earl, Lord Kinnoull, and my noble friend Lord Beswick both argued very persuasively indeed about the possible desirability of prior consultation.

The difficulty about this procedure would have been that, if the two charities concerned, Trinity House and the Tower Hill Trust, had been consulted and had there been this wider measure of consultation, it could not have been limited to them. It would have been necessary to extend it to all the interests—landowners, businesses—affected by the construction of this railway. This would have resulted in a long delay in the start of the railway works. I need hardly remind your Lordships that the development of the dockland area depends on the construction of this railway.

I shall not weary the House with the history of the Bill except to show why the negotiations leading up to the final Bill took a long time and were, therefore, extremely expensive. Briefly, the petitioners objected to the first Bill on the ground of the visual impact of an enlarged and unsightly ticket office at Tower Hill station. At the same time they instructed their engineers to submit an alternative scheme for the ticket hall, and this scheme they submitted to the promoters. It was objected to by the promoters, as the noble Lord, Lord Foot, pointed out, mainly on the grounds of operation and cost.

The promoters then put up a third scheme which had the general approval of the petitioners because it dropped the proposal for the extended ticket hall at Tower Hill station. The petitioners had at this stage won their amenity battle and would normally have withdrawn their petition against the Bill, in which case of course the expenses would have been much lower. But as they wanted to apply to the committee for their costs they left the petition on foot to enable them to make application for costs under the Parliamentary Costs Act 1865.

This brings us to the nub of the argument for the committee's decision about costs. The important point is that any committee considering application by a petitioner for costs must do so within the narrow limits of the wording of Section 1 of the 1865 Act. This lays down that costs can only be awarded if a committee reports unanimously. These are the key words. I think they were quoted by the noble Lord, Lord Foot, but as they are the key to the whole position I should like to quote them again: that such petitioner or petitioners has or have been unreasonably or vexatiously subjected to expense in defending his or their rights proposed to be interfered with by the Bill". A committee therefore has no discretion in the matter of costs. Wherever its sympathies may lie it is tied hand and foot by the terms of the Act.

The Select Committee heard the parties relating the whole history of the lengthy negotiations in which the petitioners had been involved and they learnt about the very substantial sum involved in the costs—a total of about £35,000, of which about £8,000 represented charges made for the preparation of the second scheme. The question that the committee had to decide at the end of the proceedings was whether the petitioners could be said to have been unreasonably subjected to all or part of these costs by the conduct of the promoters during the negotiations. They decided (and this was in the report) that, while appreciating the anxiety of the petitioners to protect the site—I may say in passing that I entirely agree, and I think your Lordships would, with the description of this site by the noble Earl, Lord Kinnoull, as, perhaps one of the most important historical and environmentally sensitive landmarks in London"—[Official Report, 15/12/83; col. 352.]— the petitioners were on no occasion unreasonably subjected to expense, bearing in mind the nature of the negotiations, which were necessarily lengthy, nor were the petitioners unreasonably subjected to the expense incurred in the preparation of the second scheme, as it was not essential, not indispensable, to their opposition to the Bill. Their objective had been achieved when the promoters decided to abandon the first scheme.

Your Lordships usually have confidence in the decisions of your Select Committees because they have had the advantage of hearing counsel for the parties and also any witnesses which the parties may have wished to call: a procedure that enables the committee to reach its conclusions having heard the fullest possible statement of all the arguments.

3.43 p.m.

Lord Murton of Lindisfarne

My Lords, having had some experience of Private Bill procedure in another place, may I trespass upon your patience for a few minutes in defence of the Parliamentary Costs Act 1865? I should not wish to talk about the decisions reached by the Select Committee except to say that I entirely endorse the decisions taken, but may I suggest that if the Act of 1865 were to be altered the only way in which it could be done would be that costs should, in legal language, "follow the event"—I believe that that is how it is put—which is the rule applicable to ordinary litigation.

Under that rule, a successful petitioner would be entitled to his costs as a matter of course, unless his conduct clearly had made that result unjust. Presumably a successful petitioner would have to be defined to include one who had persuaded the promoters voluntarily to seek the committee's leave to withdraw the provision in the Bill to which there had been objection taken. As a possible corollary, no doubt, the promoters of a Bill could become entitled to an award of costs against unsuccessful petitioners.

Parliamentary agents generally, who are the persons with the greatest knowledge of Private Bill procedure, regard the present Act as satisfactory. In fact, far from it having been proved unsatisfactory, the same principles have been adopted in the operation of ministerial practice on compulsory purchase orders under the Acquisition of Land Act 1981.

Where a local inquiry is held, Section 250(5) of the Local Government Act 1972 comes into play. By that subsection the Minister is empowered to make orders: as to the costs of the parties at the inquiry and as to the parties by whom the costs are to be paid". In the ministerial circular entitled Housing and Local Government Circular No. 73/65: The Award of Costs of Statutory Inquiries, the following criterion is adopted as a rule of general application for the award of costs. I quote: Costs should normally be awarded against a party who behaves unreasonably, vexatiously or frivolously". This criterion was taken from "A Report of the Council on Tribunals on the Award of Costs at Statutory Inquiries". This criterion is very much akin to that in Section 1 of the Parliamentary Costs Act 1865, by which a parliamentary committee is empowered to award costs to a petitioner who has been unreasonably or vexatiously subjected to expense in defending his rights.

Both the Act of 1865 and the ministerial circular 73/65 contain criteria which are far and away from the practice in ordinary litigation, where, as I have already mentioned, in all but exceptional cases costs are awarded as a matter of course to the successful party under the practice known as "costs following the event".

I would suggest that the reason for this difference in approach on the award of costs is that Private Bills, like compulsory purchase orders, deal with matters of public importance and where the public interest often conflicts, unavoidably, with private interests.

In my view it is important that promoters of a Bill should not be deterred from ventilating arguments in support of their case by the fear that if a view different from their own should prevail before a Select Committee they would be made liable for costs, however reasonably they had behaved in presenting their case. In my view it would indeed be unfortunate if promoters of Private Bills were to be deterred by such a fear, as this would tend to discourage conflicts between public and private interests being brought before Select Committees for the specific purpose of arbitration. For this reason, I would defend the Act of 1865 as it now stands.

Earl Fortescue

My Lords, I was a member of the Select Committee and I entirely agree with its conclusions, as I also agree with what the noble Lord, Lord Foot, and the noble Earl. Lord Listowel, said today.

The Select Committee was bound by the Parliamentary Costs Act 1865 and not by any standing order. I now speak as an individual. I am not a lawyer and I hope that I will be forgiven if my legal jargon is faulty. I am very doubtful now whether Section 1 of the Parliamentary Costs Act is equitable. In this matter the petitioners won their point. If this matter had been the subject of litigation in a court of law the costs might have been awarded against the London Transport Executive. The question of unreason-ableness or vexation would not have arisen. Under the 1865 Act I suggest that only the rich can afford to petition against a Private Bill, whereas in a court of law someone of modest means can hope to recover his costs if he wins his case. If his means are very modest, he may even get legal aid. For these reasons I suggest that after 119 years the Parliamentary Costs Act might well be amended.

Lord Teviot

My Lords, I had absolutely no intention of speaking and I agree with the findings of the Select Committee absolutely, but this is rather a sour note at the beginning of an important Bill. I feel that, after having settled the matter of the ticket office and everything else, one wishes the progress of the development of London Docklands and everything that goes with it well in the future.

Lord Aberdare

My Lords, I am grateful to all of your Lordships who have taken part in this short but interesting debate. It would be quite improper for me to comment on the decision taken by the Select Committee. The Select Committee was most ably chaired by my predecessor, the noble Earl, Lord Listowel, and we have also heard from the noble Lord, Lord Foot, and the noble Earl, Lord Fortescue, who were members of that committee. I am sure that the whole House will feel that we should support their findings. However, the main thrust of the debate has really been on the subject of the 1865 Act which influenced their decision. I have been asked, particularly by the noble Lord, Lord Beswick, if I would have a look at this Act. I certainly will, and I will take into consideration everything that has been said this afternoon. I think that it may not be quite as easy as it appears on the surface. The noble Lord, Lord Murton, made it clear that it is not quite unique, that this kind of procedure also applies in the case of compulsory purchase orders, and he also instanced some of the possible disadvantages of changing the Act and going nearer towards the procedure which takes place in the courts.

The other point is that, whereas most of the proceedings of Private Bills are regulated by standing order, this, exceptionally, is regulated by legislation, the Parliamentary Costs Act 1865, and therefore to make any change would require legislation. But, having said that, I will certainly take into account everything that has been said. I will have discussions with those who deal with this matter in the other place whose consent obviously also would be required, and I will see if anything emerges from those consultations.

Lord Beswick

My Lords, before the noble Lord sits down, would he say something about the point of the committee before which the second Bill has to go? Would that committee be competent to reconsider the question of costs?

Lord Aberdare

My Lords, there is no reason why any Select Committee should not consider the matter of costs, but again within the ambit of the 1865 Act.

On Question, Bill read a third time, and passed, and returned to the Commons with the amendments.