Cotham School v Bristol City Council & Anor

Introduction

1. On 10 June 2025 I handed down my reserved judgment in this claim: see [2025] EWHC 1382 (Ch) . By my order of the same date, I invited written submissions on consequential matters. I have now received and considered these. The issues raised were costs and permission to appeal. This ruling sets out my decisions on these issues, and the reasons for them. Costs

2. The claimant (“Cotham”) seeks an order for its costs of the claim on the standard basis, apportioned as to 10% against the first defendant (“BCC”) and as to 90% as against the second defendant (“Ms Welham”). BCC accepts that in principle that it is liable to pay at least some part of Cotham’s costs, but leaves the proportion to the court’s judgment. But BCC reminds the court that Cotham and BCC entered into an agreement that the costs liability of each toward the other is limited to £20,000. Ms Welham submits that BCC should pay all Cotham’s costs.

3. There is also a discrete costs issue relating to a contempt application that was launched by Cotham against Ms Welham, but subsequently not proceeded with. Ms Welham seeks an order that Cotham pay her costs of this application, and on the indemnity basis. BCC is not concerned in this issue. Permission to appeal

4. Ms Welham seeks permission to appeal against my order, on five grounds, corresponding to issues 1-3, 5 and 6 at the trial. BCC makes no similar application, and is neutral in relation to Ms Welham’s application. However, it reserves its position as to its involvement if an appeal does take place. Cotham opposes Ms Welham’s application.

5. I will deal with each of these three matters in turn. Costs of the claim

6. First, I consider the question of the costs of the claim. I can summarise the general rules about costs for present purposes in this way. Costs are in the discretion of the court (CPR rule 44.2(1)), but, if the court decides to make an order, the general rule is that the losing party, the unsuccessful party, will pay the costs of the successful (CPR rule 44.2(2)(a)). However, that is subject to the proviso that the court may make a different order (CPR rule 44.2(2)(b)). So, the operation of the general rule usually requires the court to establish which is the successful and which the unsuccessful party. But in exercising its discretion the court will take into account the parties’ conduct, their relative success and any admissible offer to settle (CPR rule 44.2(4)).

7. This was significant litigation about an important issue, which has obviously cost a great deal of money. I think I should make a costs order. The successful party was Cotham, and the unsuccessful parties were BCC and Ms Welham, who both resisted the claim. There is no reason that I can see not to apply the general rule. The real question is whether I should order them both to pay the costs jointly and severally, and whether I should apportion the costs between them, and if so, in what proportions.

8. Cotham does not ask for a joint and several order, but does ask for a 10:90 apportionment as between BCC and Ms Welham. It points out that Ms Welham pleaded and fought a wide range of points, all of which failed. She called five witnesses of fact, and cross-examined at some length each of Cotham’s witnesses, including on aspects of litigation conduct. Her counsel prepared a very long skeleton argument, at the extreme of what is normally permissible for the heaviest cases (of which this was not one), and his written closing submissions ran to 114 pages, twice the length of Cotham’s (which included appendices), and eight times the length of BCC’s.

9. By contrast, BCC made (legal) submissions on only four out of the six grounds advanced by Cotham. It made no submissions on grounds 2 and 3, the most fact-based, and which were by themselves sufficient for Cotham to succeed. It called no witnesses, and cross-examined none. Had it adopted a neutral role, I would almost certainly have made no order for costs against it: cf R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739 , CA. BCC was not neutral, but it played a far more limited role than Ms Welham.

10. Ms Welham says that I should order BCC to pay all “or the vast majority” of Cotham’s costs of the claim, because it made the decision which was challenged, and BCC defended it, and because Ms Welham is a litigant in person seeking to protect valuable green space for local inhabitants … acting in the public interest”.

11. I reject this submission on behalf of Ms Welham. Being a litigant in person makes no difference: the same rules apply to both represented and unrepresented parties: Barton v Wright Hassall LLP Ms Welham [2018] 1 WLR 1119 , SC. is not a public authority. She was the successful applicant for registration of the land as a TVG, and was seeking, as she was entitled to, to defend what she had obtained. She was acting, perfectly properly, in the interests of local inhabitants (of which she is one) and against the interests of Cotham and its staff and students. Essentially, this was a dispute between two different interest groups as to which should take priority in relation to the use of certain public land. She fought hard for one side against the other, but lost.

12. Ms Welham led the defence to Cotham’s claim. She challenged every part of the claim that she could. She (and her supporters) contributed far more than BCC in terms of effort and research. BCC was at best a junior partner in the enterprise. It would not fairly reflect the degrees of participation in the litigation for me even to order both defendants to pay Cotham’s costs jointly and severally, much less to order BCC to pay all of them. Instead, I will accede to Cotham’s suggestion that BCC should pay 10% of Cotham’s costs and Ms Welham 90%, to be subject to detailed assessment if not agreed.

13. That means that, unless there is a good reason not to do so, I must also order the defendant to pay the claimant “a reasonable sum” on account of such costs: CPR rule 44.2(8). In a case where there is an approved costs budget, the court will have more confidence as to what the costs once assessed may be. In Thomas Pink Ltd v Victoria’s Secret UK Ltd [2014] EWHC 3258 (Ch) , the judge made an order for a payment on account equal to 90% of the approved budget.

14. In this case I can see no good reason not to order a payment on account of a “reasonable sum”. The issue is thus quantification. Ms Welham takes points on the size of Cotham’s costs budget, arguing that some contingent costs were not incurred and that the wrong guideline rates were applied. I am not here trying summarily to assess the costs. They are for detailed assessment. So, I decline to get involved in the detail of these arguments. But because of them I must build in a bigger margin for reduction than I might otherwise do. Cotham asks for a payment on account of 60% of its approved costs budget (leaving a contingent cost not actually incurred out of account). I consider that 40% is a sufficient margin. So, I shall award 60% of the budget: BCC must pay £9,467, and Ms Welham £85,203. The contempt application

15. The second point relates to an application by Cotham to commit Ms Welham for contempt of court. The application was made by notice issued and served on 24 January 2025, which was the last working day before the trial of this claim. It concerned an alleged breach of CPR rule 32.12(2), in that Ms Welham was said to have used a witness statement made by Ms Butler on behalf of Cotham for a collateral purpose, namely, making a complaint about Ms Butler to Ofsted.

16. Ms Butler’s witness statement referred to the fact that she was also a schools inspector for Ofsted, and Ms Welham had written to Ofsted to raise a concern as to whether Ms Butler should have done that. After investigating the matter, Ofsted concluded that there had been no breach of the relevant code of conduct. The matter escalated thereafter, but in February 2025 (after the trial was over) the application was withdrawn.

17. The timeline of relevant events is as follows: (1) On 2 September 2024, Ofsted emailed Ms Butler informing her of a complaint (undated) about the use of her title as an Ofsted inspector; (2) On 13 November 2024, Ofsted concluded there had been no breach of the code of conduct by Ms Butler; (3) On 3 December 2024, Cotham’s solicitors wrote to Ms Welham, saying that it appeared that Ms Butler’s witness statement had been shared by her with someone else who then went on to make a complaint to Ofsted; (4) On 5 December 2024, Ms Welham informed Cotham solicitors that it was she herself who had made contact with Ofsted in order “to seek certain confirmations for the purpose of these proceedings. I did not make a complaint or share Ms Butler’s witness statement with Ofsted … ”; (5) On 11 December 2024, asked Ms Welham to explain what she meant by “certain confirmations”, but no response was received; (6) Accordingly, on 13 December 2024, Cotham’s counsel emailed Ms Welham’s counsel about the fact that a complaint had been made by Ms Welham about Ms Butler, based on her witness statement in the proceedings, and asking him to take instructions about this; (7) On 14 December 2024, Cotham’s counsel chased Ms Welham’s counsel for a response; (8) On the same day, Ms Welham’s counsel responded that the witness statement had not been used for “collateral purposes”, so the rule was not breached; (9) Also on the same day, Ms Welham’s counsel told Cotham’s counsel what his instructions were, namely that Ms Welham did not provide the witness statement to Ofsted, but merely made reference to the fact that in her witness statement Ms Butler drew attention to her status as an Ofsted inspector; (10) On 19 December 2024, Cotham’s solicitors wrote to Ms Welham, dealing with the law on the use of witness statements, and asking for disclosure of the relevant correspondence; (11) On 13 January 2025, Ms Welham replied, saying that she did not complain to Ofsted , or indeed use the word “complaint”, but declining to disclose the correspondence; (12) On 15 January 2025, Ofsted disclosed to Cotham’s solicitors that the first line of Ms Welham’s correspondence was: “I am writing to raise concerns about the conduct of Ofsted inspector Jo Butler, who is also the headteacher of Cotham School in Bristol”, and that they considered that the correspondence amounted to a complaint about the conduct of Ms Butler; (13) On the same day, Cotham’s solicitors wrote to Ms Welham saying that her statements that she had not made a complaint were untrue, that there appeared to have been a breach of CPR rule 32.12, and asking for disclosure of the full correspondence, otherwise an application for contempt would be made, but there was no response to this; (14) On 22 January 2025, Susan Ring, Cotham’s solicitor, made an affirmation in support of a contempt application, in the course of which she said: “24. In the circumstances, I consider that there has been a contempt of court. I am instructed by my client that it would accept a purging of the contempt of court by an apology by Ms Welham to Jo Butler and the Court, the payment of the School’s costs of this application and a donation to the School for the provision of sports activities in the amount of £10,000.

25. If this offer is not accepted, then I am instructed to pursue this application.” (15) On 24 January 2025, the contempt application was issued; (16) Over the weekend of 25 and 26 January 2025 there were email discussions between counsel; (17) On Monday, 27 January 2025 (the first day of the trial), Cotham’s solicitors wrote to Ms Welham to withdraw paragraphs 24 and 25 of Susan Ring’s affirmation, but indicated that the contempt application would be pursued to establish liability; (18) The trial of this claim proceeded from 27 January 2025 to 31 January 2025 (during which time all the witnesses gave their evidence) and concluded on 10 February 2025; (19) On 30 January 2025, Ms Welham’s counsel made an email offer (expressed to be “without prejudice save as to costs”) to Cotham’s counsel of an agreement whereby Cotham would not pursue its contempt application and Ms Welham would agree not to pursue such an application against Susan Ring, on the basis that each side bore its own costs; (20) On the same day, Cotham’s counsel responded saying he would take instructions, and later that day he replied by email to Ms Welham’s counsel (also marked “without prejudice save as to costs”) asking for further time for his clients to consider the offer; (21) On 3 February 2025, Russell Cooke, acting on behalf of Ms Welham in relation to the contempt issue, wrote to Cotham’s solicitors, saying that the application was misconceived, and seeking its withdrawal, an apology and costs; (20) On 12 February 2025, Cotham withdrew its contempt application, contending that no order as to costs should be made.

18. Ms Welham says that the contempt application by Cotham was misconceived, and that paragraph 24 of Susan Ring’s affirmation amounted to demanding money to purge contempt on threat of imprisonment. She says that the withdrawal of paragraphs 24 and 25 on 27 January 2025 amounted to “a clear acceptance that the demand contained in these paragraphs was wholly inappropriate”.

19. She further says that the withdrawal of the application itself amounts to “a clear acceptance that it was misconceived”, and “there is no basis for any order other than [Cotham] to pay [Ms Welham]’s costs of the contempt application”. Moreover, she submits that such costs should be ordered on the indemnity basis, because of a lack of prima facie evidence, because it was brought in order to put improper pressure on Ms Welham, and Cotham unreasonably rejected her offer of 30 January 2025.

20. Cotham says, first of all, that it was not until mid-January that sufficient facts were known to bring the application (when Ofsted disclosed the first sentence of Ms Welham’s letter), and then it was brought promptly. Secondly, it says that Ms Welham behaved unreasonably, not only in using trial witness statements for the collateral purpose of complaining about a witness to her regulator, but also in refusing to disclose the essential facts when asked informally, not responding promptly to Cotham’s letter of 19 December 2024, and responding in a misleading way, by asserting that she did not make a complaint.

21. Thirdly, Cotham says that there was an ample prima facie case for it to pursue the application, which was not “wholly improper”, and that paragraph 24 of Ms Ring’s affirmation was not “wholly inappropriate”. Fourthly, Ms Welham incurred costs unnecessarily by instructing Russell Cooke to write their detailed letter of 3 February 2025, at a time when Cotham was considering the offer by Ms Welham to settle the contempt issue. Lastly, even if Cotham should pay any of Ms Welham’s costs of the issue, it should be on the standard rather than the indemnity basis.

22. In my judgment, it would be inappropriate for me to attempt to resolve the question as to who was right on the contempt issue, merely in order to decide who should pay the costs of it. In Andrew Hicks Engineering Ltd v Jenk Associates Ltd [2023] EWHC 2031 (Ch) , I considered the authorities bearing on the question of how to resolve the costs of an application which for one reason or another was never decided. Amongst other things, I said the following: “78. … (1) Costs are in the discretion of the court, which must be exercised judicially. (2) The court must have a proper basis to be able to make a costs order at all; otherwise, the proper order is no order. (3) That proper basis is facts which have been (i) found on the evidence, (ii) admitted or averred by a party, or (iii) properly inferred from (a) such found or admitted facts, or (b) – in some cases, at least – from the terms of the settlement agreement (if this is available to the court), though the mere fact that under the settlement the defendant pays money to the claimant is not enough. (4) Where there is sufficient material on which the court can ascertain which is the successful party and which the unsuccessful, the general rule applies, and the unsuccessful pays the costs of the successful unless there is good reason to decide otherwise.”

23. In this case, Cotham withdrew its application unilaterally, rather than following any agreement with Ms Welham. But Ms Welham had herself proposed a settlement of the issue on the basis that no further action would be taken by either side, and that each side would bear its own costs. Cotham’s withdrawal was in effect giving Ms Welham what she was willing to take. So, I do not attach much importance to this. I certainly do not treat it as an acceptance by Cotham that the application would have failed.

24. I do not know who would have succeeded if Cotham’s contempt application had been pursued. But I am satisfied that on the face of it there was at least something to argue about. In IG Index Ltd v Cloete [2015] ICR 254 , CA, Christopher Clarke LJ (with whom Arden LJ and Barling J agreed) said: “40. … What the rule precludes is the use of the document(s) disclosed. " Use " is a wide word. It extends to (a) use of the document itself e.g. by reading it, copying it, showing it to somebody else (such as the judge); and (b) use of the information contained in it …” (second emphasis supplied)

25. On the other side, there was also something to be said for the inappropriateness of the suggestion by Cotham solicitors of a donation to the school as part of purging the alleged contempt. In Navigator Equities Ltd v Deripaska [2022] 1 WLR 3656 , CA, Carr LJ (with whom Asplin and Snowden LJJ agreed) said: “121. It is well-established that an application for civil contempt that is being used for an improper collateral purpose, such as a threat in order to secure a settlement, will be abusive … ” This was concerned with settling the whole litigation, rather than in simply purging a contempt, but I can at least see the argument for its extending wider than that.

26. On the other hand, I do not think that the timing of the contempt application can be criticised in the way that Ms Welham seeks to do. It was plainly sensible for Cotham to wait until all the relevant facts were known, including the terms of the communication with Ofsted raising Ms Welham’s concerns. For reasons best known to her, she declined to assist Cotham, and Ofsted did not disclose the opening sentence of Ms Welham’s communication until 15 January 2025. It is also to be noted that Ms Welham took nearly a month to respond to the letter from Cotham’s solicitors of 19 December 2024. It may well be that, had she responded (negatively) more quickly, Cotham would have been able to obtain the information sought from Ofsted sooner.

27. However, even taking into account all the material before me, I do not think I am in a position to say which would have been the successful party on the contempt issue, and which the unsuccessful. In these circumstances, including the without prejudice save as to costs offer, I do not think it is appropriate for the court to make any order as to the costs of the contempt issue. I therefore decline to do so. Permission to appeal

28. I turn now to consider the question of permission to appeal. Ms Welham seeks permission to appeal on the basis that such an appeal would have a real prospect of success and also that there is some other compelling reason for the appeal to be heard, within CPR rule 52.6. Ms Welham’s submission addresses the “real prospect of success” limb of the rule in relation to Cotham’s claim grounds (1) statutory incompatibility, (2) use as of right in relation to signs, (3) use as of right in relation to other forms of protest, (5) interruption of use and (6) unlawful use.

29. But the submission does not address the “other compelling reason” limb, save to say that Ms Welham “notes that a high proportion of TVG cases reach the Court of Appeal (and often the Supreme Court) reflecting both the challenging nature of the case law and its general importance”. In my judgment, that is not any kind of reason for an appeal, let alone a compelling one. Statutory incompatibility

30. As to ground (1), statutory incompatibility, since I have simply applied the legal principles laid down by the Supreme Court, which bind the Court of Appeal, I see no purpose in granting permission to appeal in relation to them. Since there is no challenge to the facts on the basis of which I applied those legal principles, I cannot give permission to appeal in relation to them either. Use as of right in relation to signs

31. As to ground (2), use as of right in relation to signs, there is a challenge to my findings of fact as to the number of signs and the existence or nonexistence of a right of way along Cheyne Road. As to the former, I had the evidence of Mr Hoskins before the inspector, and, in my judgment at paragraphs 120-121, I explained why I accepted it.

32. In Volpi v Volpi [2022] 4 WLR 48 , [2], Lewison LJ (with whom Males and Snowden LJJ agreed) said: “(i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. (ii) The adverb ‘plainly’ does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.”

33. Ms Welham refers to the fact that there were certain assumptions of fact agreed between the parties. There were indeed, and they were set out in paragraph 11 of the order of 14 May 2024. This in turn was reproduced at paragraph 99 of my substantive judgment. The number of signs on the land does not feature amongst those assumptions of fact.

34. Ms Welham further refers to the fact that, at paragraph 107 of my substantive judgment, I said that “There is accordingly no public right of way along [Cheyne Road], as demonstrated by the interactive public rights of way map included in the trial bundle.” This is criticised by Ms Welham because there was other evidence that unrecorded public rights of way do exist including along part of Cheyne Road. The definitive map to which I referred is, by virtue of section 56 of the Wildlife and Countryside Act 1981 “conclusive evidence … that the public had thereover … a right of way … ” Of course, I accept that the statute does not make the absence of a marking as a right of way “conclusive evidence” of the absence of a right of way, but it was evidence, and I was entitled to reach the conclusion I did on the evidence before me.

35. Ms Welham also asserts that I made two mistakes of law. The first was to conclude that what mattered was the view of the reasonable landowner rather than the actual landowner. As to this, paragraphs 275 and 276 make clear that counsel’s submission was based on a misunderstanding of the dicta of Lord Hoffmann and Lord Walker, and that, in this context, the statement of Lewison LJ represented the correct principle, as since held in Powell v Secretary of State [2014] EWHC 4009 (Admin) , [24]-[27], [33]. I see no real prospect of the Court of Appeal taking a different view.

36. The second mistake was to conclude that the education legislation relied on by Ms Welham was irrelevant because it did not impact on legal possession of the land. As to this, paragraph 296 of my judgment expresses my position on the law. I accept that, as I am not aware of any authority on the point, it would be open to the Court of Appeal to take a different view of this. I doubt that the point matters, because I found at paragraph 136 that the governing body knew about the signs and did nothing to prevent their having effect. But to the extent (if at all) that it mattered, I think that in that case it should be for the Court of Appeal to decide for itself whether to give permission on this ground. Use as of right in relation to other forms of protest

37. As to ground (3), use as of right in relation to other forms of protest, Ms Welham says that I erred in law in paragraph 303 in saying: “Lastly, there is the question of how many members of the public need to know about the objection. There is no rule that any particular proportion of the local population should become aware of the landowner’s objection. Most of the local population will never visit the land. What matters is potential communication of the protest of the landowner to those who are intending to come onto the land and make use of it . That is a much smaller proportion of the local population” (emphasis supplied).

38. Ms Welham says that the question (arguably) is “whether the action in question has in fact made clear to all but an insignificant number of local inhabitants in the neighbourhood that [Cotham] contested use” (emphasis supplied). This position is not justified on the authorities, and would place a very high burden on landowners. I see no real prospect of the Court of Appeal taking that view. Interruption of use

39. As to ground (5), interruption of use, Ms Welham makes two points. First, she says that I was wrong in law in my treatment of “give and take” in the previous case law. As to that, I was making an evaluative decision. In FAGE UK Ltd v Chobani UK Ltd [2014] EWCA 5, Lewison LJ (with whom Longmore LJ agreed) said: "114. Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them … ” I see no real prospect of success of an appeal on this point.

40. She also says that I was wrong to conclude that it would not be just to limit registration to the land that was not formally laid out for sports. But this really concerns the question of remedy, rather than whether the land should have been registered at all. On the question of remedy, the court has a wide discretion, and I see no basis for supposing that, if it mattered, the Court of Appeal would interfere with the exercise of my discretion as expressed in paragraph 325. Unlawful use

41. As to ground (6), unlawful use, Ms Welham says that any such use by local inhabitants which disrupted school games was minimal. She simply disagrees with my evaluative decision and, as expressed above, evaluative decisions are not to be interfered with lightly. I do not see any real prospect of success on this point. Conclusion of permission to appeal For the reasons given above, I refuse permission to appeal.