A mother and her three children who brought judicial review proceedings against their local authority over a failure to provide accommodation were rightly not awarded their costs, even though they achieved the desired outcome, because a parallel non-court process was responsible for their success, the Court of Appeal has ruled.
The court came to the conclusion “with reluctance” because of the importance of legal aid providers receiving inter partes costs.
The claimants/appellants were RL, a Ghanaian national, and her three children, aged between six and 12. The eldest child was a British national. The mother and the two younger children had leave to remain in the UK subject to a condition that they should have no recourse to public funds.
The claim arose of them being evicted and whether the London Borough of Croydon should rehouse them.
Represented by the Public Law Project (PLP), they issued a judicial review claim on 28 October 2015 over the council’s failure to accommodate them, a month after Croydon began a ‘child in need’ assessment under section 17 of the Children Act 1989.
It was asserted that Croydon was acting unlawfully in failing to provide accommodation pending the section 17 assessment.
A week later, the assessment was concluded and temporary accommodation provided as a result, while a ‘change in circumstances’ application was made to the Home Office to remove the public funds restriction.
The judicial review concluded with a consent order in January 2016 after the application for permission had been refused on the papers by Mr Justice Garnham and before a renewal application was heard.
Judge Gill decided not to order any costs, on the basis that the consent order was achieved due to the section 17 assessment rather than the judicial review.
The claimants appealed, arguing that the court had not applied the principles in R (M) v Croydon London Borough Council, that by obtaining substantially the relief sought, they were to be viewed as the successful party.
Giving the main ruling in RL and Ors v The London Borough of Croydon  EWCA Civ 726, Lord Justice Moylan said Judge Gill was “entitled” to reach the conclusion she did. She could also “not ignore” the fact that Garnham J had dismissed the application as disclosing “no coherent case”.
“She properly took into account that the claimants had renewed their application but was, again, entitled to conclude that if the matter had not settled it was not tolerably clear that the claimants would have won.”
Moylan LJ said: “I do not accept [the claimants’] submission that the court should merely look at the relief sought and the outcome. That will often, if not usually, be the position.
“But where there is another distinct strand involved, as in this case, in my view the court has to consider how the outcome was achieved as part of its assessment of whether the claimants were the successful parties.
“The real question is whether the claimants can say that their claim has been vindicated such that they should be regarded as the successful parties.”
He added: “I have borne in mind the impact of the legal aid provisions and the importance to be ascribed to the proper remuneration of publicly funded lawyers. This is important for the general administration of justice.
“However, in my view, that issue cannot be deployed in this case either to undermine the judge’s determination or to alter my conclusions as to the merits of this appeal.”
Lord Justice Underhill agreed with the conclusion but came to it in a slightly different way.
“In a case of this kind, the measure of ‘success’ has to be whether as a result of the proceedings being brought the assessment was completed substantially sooner than it otherwise would have been. I can see no reason for supposing that to have been the case here, and indeed given the time-scales it seems very unlikely.
“Accordingly, I do not think it would be fair to award the appellants their costs simply on the basis that they were ‘the successful party’.”
But that was not the end of the matter, said Underhill J. “The appellants believed that the assessment had already been unlawfully delayed and, although we now know that it would be completed within the week, that was something they had no way of knowing.
“That being so, I believe that it would be appropriate for them to be awarded their costs if the court were in a position to decide with sufficient confidence both (a) that Croydon had been legally obliged to produce the assessment prior to 28 October 2015 and (b) that it was reasonable of the appellants to issue the proceedings on that date.
“I say ‘with sufficient confidence’ because it would not be proportionate to hold the equivalent of a full trial simply in order to determine liability for costs.”
However, the judge said the appellants could not satisfy element (a). It was open to them to seek to challenge Garnham J’s assessment, “and to the extent that Judge Gill seems to have treated his decision as definitive, I respectfully believe that she was wrong to do so”.
He continued: “However, I do not believe that if she had attempted to form her own view on the merits, she could have concluded that the claim was likely to succeed… Given that the delays in question were on any view not gross, it would not be proportionate on a costs assessment to attempt to get to the bottom of exactly what had gone wrong or whose fault it was.”
Underhill LJ said that, had he had to consider element (b), “I would have had little difficulty in finding that the appellants – or rather PLP – had acted reasonably in starting proceedings at the time they did”.
He concluded: “It follows that I do not believe that the appellants are entitled to their costs. The reason why I reach this conclusion with some reluctance is that I am very conscious of the importance to solicitors undertaking publicly funded work of recovering costs on an inter partes basis not only when they succeed in litigation but when the litigation is resolved on a basis that represents success.
“I am all the more conscious of that factor in the present case, where PLP’s work on behalf of the appellants appears to have been of very high quality and showed exceptional commitment to their case. But that does not justify an award of costs for which I cannot find a principled basis.”
Lord Justice Jackson agreed with Underhill LJ’s reasoning and associated himself in particular with that final paragraph.
Tim Buley (instructed by the Public Law Project) for the appellant; Mark Tempest (instructed by the London Borough of Croydon) for the respondent.