Electricity Supply Board v Good & ors (Approved)

Factual and Procedural Background

These are judicial review proceedings arising from arbitration awards made on a reference under the Acquisition of Land (Assessment of Compensation) Act 1919. The applicant, Company A, sought (i) an order of certiorari quashing the arbitrator’s awards and (ii) a declaration that the awards involved errors of law and breaches of fair procedures. The High Court granted certiorari but refused the declaratory relief insofar as it alleged a breach of fair procedures. The notice parties (the Appellants/Notice Parties) appealed to the Supreme Court; Company A brought a cross-appeal on the refusal of declarations. The Respondent took no part in the proceedings.

In an earlier substantive judgment referenced by the Court, it was concluded that the arbitrator had erred in one respect relied upon by Company A in seeking certiorari, while Company A’s cross-appeal was dismissed. The present ruling addresses the question of costs in both the High Court and the Supreme Court.

Legal Issues Presented

1. What is the appropriate order as to costs where neither side was entirely successful and relief was obtained on a narrow ground that occupied relatively little time at hearing?
2. How should the costs discretion under sections 168 and 169 of the Legal Services Regulation Act 2015 be exercised to reflect “partial success” by both sides?
3. Whether, and to what extent, the Court should “split” costs by reference to issues, particularly when a party loses on “big issues” that occupied substantial time and importance, despite obtaining limited relief.

Arguments of the Parties

Company A’s Arguments

• The appropriate order is no order as to costs.
• Although limited, Company A obtained relief (certiorari) that would not have been obtained without recourse to the courts.

Appellants/Notice Parties’ Arguments

• Costs of the appeal should be awarded in their favour.
• The High Court’s order awarding them 90% of their costs should stand.
• They contended that Company A could have proceeded by way of case stated rather than judicial review.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court emphasized that sections 168 and 169 of the Legal Services Regulation Act 2015 govern the award of costs where neither party is “entirely successful.” Both sides here were “partially successful,” so no party was entitled to costs as of right. The Court therefore exercised its discretionary jurisdiction to allocate costs in a way that reflects the realities of the litigation.

Applying the approach articulated by Judge Murray in a Court of Appeal authority, the Court noted that costs can be awarded against a party who technically succeeds “on the event” if the relief obtained was narrow, occupied little hearing time, and the issues that occupied the bulk of time were resolved against them. That principle remains applicable under the LSRA.

Company A secured certiorari on a narrow and limited basis—namely, that compensation should not be awarded for future access under section 53(9) of the Electricity (Supply) Act 1927 (as amended). However, Company A failed on the most significant and time-consuming issue: whether the notice parties were entitled to compensation for “injurious affection.” That “big issue” dominated the written and oral submissions and was of central importance. The Appellants/Notice Parties also succeeded in defeating Company A’s cross-appeal.

While Company A prevailed on some sub-points within the broader “injurious affection” debate (e.g., questions concerning whether the statutory power was a “taking of land,” incorporation of specific provisions of the Land Clauses Consolidation Act 1845 into section 53, and whether constitutional property guarantees mandated compensation for “injurious affection”), the Court held that those successes could not be treated as offsetting the notice parties’ success on the overarching issue. Those sub-points only arose because Company A disputed the entitlement to any compensation for “injurious affection” in the first place, and Company A ultimately lost on that overall question.

Consistent with the caution expressed by Judge Leggatt against a mechanistic “issue balance sheet,” the Court focused on the dominant issues that occupied substantial time and cost. The case also had features favoring the Appellants/Notice Parties: the key issue was of considerable public importance; the clarification will benefit Company A by bringing clarity to contested compensation processes; and the outcome offers guidance to the legislature on constitutional requirements for compensation in similar contexts. Although the High Court had ruled against the notice parties on the “injurious affection” issue at first instance, its 90% costs allocation was nonetheless just, and the same allocation should be reflected in the Supreme Court.

Holding and Implications

HOLDING: The Appellants/Notice Parties are awarded 90% of the costs in each court as against Company A. No order is made against the Attorney General.

IMPLICATIONS: The decision confirms that under the LSRA’s partial-success framework, the Court will prioritize the outcome on major, time-intensive issues over narrow or incidental successes when allocating costs. Company A’s limited success on a narrow ground did not outweigh its loss on the central “injurious affection” issue. The ruling directly affects the parties’ liabilities for costs and does not purport to establish a new methodology for granular “issue-splitting”; rather, it reiterates a pragmatic, discretionary approach focused on the dominant issues. The Court also noted that the substantive outcome provides broader clarity and legislative guidance regarding compensation in similar cases, though no new binding precedent on costs methodology was set beyond the application of existing principles.