Canterbury Commissary Court: Walker Com Gen, November 2000

The Commissary General considered representations on costs, in relation to an earlier petition, determined on written representations, where an objector had been unsuccessful. The substantive decision, which is unreported, concerned the siting of a wall bordering the churchyard as part of the commercial development of contiguous land. The court fees had been taxed at £2,269.40, and the petitioners, Cox Restorations, calculated their internal office costs in dealing with the objections as £4,772.30 plus VAT. These were effectively 'litigant-in-person' costs. Applying Re St Mary the Virgin, Sherborne [1996] Fam 63, [1996] 3 All ER 769, in the light of the general approach of the ecclesiastical courts, the Commissary General extracted the following principles:

(i) the faculty jurisdiction receives no public funding, thus the cost of administering the system has to be met by those who use it;
(ii) court fees arise as part of the process of obtaining a faculty and should be budgeted for by prospective petitioners in estimating the overall costs of the works for which a faculty is sought, particularly where (as here) the petitioner is a property development company carrying out works as part of a commercial project;
(iii) as a general rule, petitioners will be ordered to pay court fees even where they are successful. Here the practice in the ecclesiastical courts varies significantly from that in the civil courts;
(iv) an order that some or all of the court fees be paid by an objector is most unlikely to be made unless there is clear evidence of unreasonable behaviour by that objector which has unnecessarily added to the procedural costs prior to the hearing or determination of the petition. In similarly exceptional circumstances it may be appropriate to order one party to pay the costs incurred by another party in preparing and presenting his case. This is akin to the secular planning process.
(v) even where there are grounds for concluding that it is appropriate for an objector to bear some of the court costs, the petitioners shall bear the primary liability to pay these costs to the registry, but have an entitlement to seek reimbursement of whatever part of these the court deems just from the unreasonable objector;
(vi) the Commissary General (or chancellor) has an overall discretion as to costs to be exercised on the facts of each case.

The Commissary General noted a number of factors of relevance in this instance. Most significant, however, was the absence of merit in the objection which should have been apparent no later than the directions hearing on 6 May 2000, when the petitioner's expert archaeologist indicated to the Commissary General in the presence of the objector the traces in the ground of the earlier wall. The objection was maintained but no contrary evidence was advanced. Mindful of the principle of proportionality, the Commissary General declined to conduct a further detailed assessment of costs. He ordered the petitioner to pay the court fees and further ordered the objector to pay the sum of £500 by way of costs to the petitioners.

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(2001) 6 Ecc LJ 165-166