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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> M v London Borough of Croydon [2012] EWCA Civ 595 (08 May 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/595.html Cite as: [2012] 3 FCR 179, [2012] 4 Costs LR 689, [2012] WLR(D) 141, [2012] BLGR 822, [2012] 3 All ER 1237, [2012] EWCA Civ 595, [2012] 1 WLR 2607 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
THE HON MR JUSTICE LINDBLOM
Case CO/1468/2009
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE HALLETT DBE
(VICE-PRESIDENT OF THE QUEEN'S BENCH DIVISION)
and
LORD JUSTICE STANLEY BURNTON
____________________
M![]() |
Appellant |
|
| - and - |
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MAYOR AND BURGESSES OF THE LONDON BOROUGH OF CROYDON![]() |
Respondents |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
M
Catherine Rowlands (instructed by Policy & Corporate Services Department of
Croydon
LBC ) for the Respondent,
Croydon
LBC
Hearing date: 14 March 2012
____________________
Crown Copyright ©
The Master of the Rolls:
The factual and procedural background
M
, arrived unaccompanied in the UK from Afghanistan on 19 March 2008. He immediately applied for asylum, informing the Secretary of State for the Home Department that he was aged 12, so his date of birth was recorded as 1 January 1996. He was then referred to the respondents, the London Borough of
Croydon
, one of the so-called gateway local authorities for young asylum seekers. The respondents accepted responsibility for the appellant pursuant to section 20 of the Children Act 1989 ('section 20'), and placed him with foster parents and at a school ('the school'). (The appellant has now been granted leave to remain in the UK as a refugee).
M
)
v
Lambeth LBC; R (A)
v Croydon
LBC [2008] EWHC 1364 (Admin), in which he concluded that the question whether an individual was a child for the purposes of section 20 was a matter for the relevant local authority rather than the court, although the court could review the local authority's decision on normal judicial review principles.
v Croydon
LBC [2008] EWHC 2921 (Admin), Mr Stephen Morris QC, sitting as a deputy High Court Judge, quashed the respondents' decision as to another child's age, because they had not had adequate regard to a report from Dr Birch. He held that the respondents should not have rejected her expert medical opinion without 'sound reason'. Further correspondence ensued with no change of position on either side.
v Croydon
LBC and R(
M
)
v
Lambeth LBC [2008] EWCA Civ 1445, upholding the decision of Bennett J. Thus, it was apparent that, if the issue of the appellant's age was to be litigated, it would be on the basis of a judicial review. So, in order to succeed, the appellant would have to establish that the respondents' decision that he was born in 1994 rather than 1996 was 'Wednesbury unreasonable' i.e. that the decision was irrational, in the sense of being one which no reasonable local authority could have reached.
v Croydon
and R (WK)
v
Kent County Council, Holman J directed a stay of all age assessment cases, pending a trial which would involve consideration of the reliability and value of expert evidence as to the age of a child.
v Croydon
and R (WK)
v
Kent County Council [2009] EWHC 939 (Admin). He was very critical of Dr Birch's methodology, and consequently he disagreed with the approach adopted by Mr Morris QC (who had not had the benefit of detailed evidence and argument as Collins J had done). Collins J directed that the outstanding age assessment cases be listed as soon as possible.
v Croydon
LBC and R (
M
)
v
Lambeth LBC [2009] UKSC 8 [2009] 1 WLR 2557 ('R(A)
v Croydon
'). The Supreme Court concluded that the determination of age is a fact precedent to the exercise of a local authority's powers under section 20, so that, in the case of any dispute, the responsibility for assessing an individual's age under that section was for the court. As a result, what had been the appellant's traditional judicial review application was effectively converted into an age assessment claim under the enhanced jurisdiction of the Administrative Court.
v Croydon
LBC [2011] EWHC 1473 (Admin), Kenneth Parker J was highly critical of the evidence given by Dr Birch in purporting to assess the age of an individual, and he much preferred the evidence of Dr Stern.)
Costs: the issue in this case
'Having considered the submissions on costs made by both parties and having regard to the principles referred to by the court in R (Boxall)v
Waltham Forest LBC (2001) 4 CCLR 258 and to the caveat added by Hallett LJ in R (Scott)
v
Hackney LBC [2009] EWCA Civ 217 at 51 - to the effect that a judge must not be tempted too readily to adopt the default position of making no order for costs - I accept that this is the just outcome here. As has been submitted for the defendant this is not a case where the case was obvious from the outset. And in view of the dynamic development of this area of the law while the claim was live and the burdens on the defendant which are referred to in paragraph 12 of its submissions I do not consider the defendant's conduct in the proceedings has been such as to justify an award of costs being made against it.'
'(i) The judge failed to address the appellant's primary argument that costs should follow the event.
(ii) The judge misdirected himself in refusing to award costs because the outcome was not obvious from the outset.'
Sullivan LJ gave permission to appeal, drawing attention to the recent decision of this court (of which he was a member) in R (Bahta)
v
Secretary of State for the Home Department [2011] EWCA Civ 895, [2011] 5 Costs LR 857 ('Bahta').
The relevant court rules on costs
The Administrative Court cases on costs
v
Waltham Forest LBC (2001) 4 CCLR 258 ('Boxall'). Having analysed a number of earlier decisions, he set out at para 22, certain principles, or guidelines, which he derived from those cases and which, Ms Rowlands for the respondents maintains, her clients assumed would apply when they compromised the instant proceedings.
(i) 'The court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs';
(ii) 'It will ordinarily be irrelevant that the claimant is legally aided';
(iii) 'The overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost';
(iv) 'At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties';
(v
) 'In the absence of a good reason to make any other order the fall back is to make no order as to costs';
(vi) 'The court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage'.
8 Before making a claim, the claimant should send a letter to the defendant. The purpose of this letter is to identify the issues in dispute and establish whether litigation can be avoided.
…
13 Defendants should normally respond within 14 days using the standard format … b. Failure to do so will be taken into account by the court and sanctions may be imposed unless there are good reasons.
14 Where it is not possible to reply within the proposed time limit the defendant should send an interim reply and propose a reasonable extension. Where an extension is sought, reasons should be given and, where required, additional information requested. This will not affect the time limit for making a claim for judicial review nor will it bind the claimant where he or she considers this to be unreasonable. However, where the court considers that a subsequent claim is made prematurely it may impose sanctions.
v
Hackney LBC [2009] EWCA Civ 217 ('Scott'), where the local authority had conceded a substantial part of the claimant's case. The Administrative Court Judge, had decided that there should be no order for costs on the ground that the local authority had 'reasonable points of defence', he could not 'confidently conclude' who would have won if the matter had not settled, he should not 'discourage reasonable settlements', and 'certain aspects of the original claim … were not pursued'.
'[W]hen an application for costs is made, a reasonable and proportionate attempt must be made to analyse the situation and determine whether an order for costs is appropriate. I emphasise a reasonable and proportionate attempt, bearing in mind the pressures on the Administrative Court, yet another hard pressed institution. A judge must not be tempted too readily to adopt the fall back position of no order for costs.'
'The Boxall approach made eminently good sense at the time that case was decided. However, now that there is an extremely sensible protocol in place for judicial review claims, I consider the Boxall approach needs modification, essentially for the reasons which have been urged upon me ….
. . . in any judicial review case where the claimant has complied with the protocol, if the defendant settles the claim after (rather than before) issue by conceding any material part of the relief sought, then the normal order should be that the defendant pays the claimant's costs. A rule along these lines would not prevent the court from making a different order in those cases where particular circumstances warranted a different costs order.'
Costs after a trial in ordinary civil litigation
Costs after settlement before trial in ordinary civil litigation
v
C Brewer & Sons Ltd [2003] EWCA Civ 939, [2004] FSR 9 ('BCT'), Chadwick LJ said this at para 24 (which was approved in Venture Finance plc
v
Mead [2005] EWCA Civ 325):
'In a case where there has been a judgment after trial, the judge may be expected to be in a position to decide whether one party or the other has been successful overall; whether one party or the other has been successful on discrete issues; whether the fact that the party who has been successful overall but unsuccessful on some issues calls for an order which reflects his lack of success on those issues; and whether - having regard to all the circumstances (including conduct) as CPR 44.3(4) requires – the order for costs should be limited in one or more of the respects set out in CPR 44.3(6). But where there has been no trial – or no judgment – the judge may well not be in a position to reach a decision on those matters. He will not be in a position to decide those matters if they turn on facts which have not been agreed or determined. In such a case he should accept that the right course is to decide that he should not make an order about costs. As the arguments on the present appeal demonstrate, it does the parties no service if the judge – in a laudable attempt to assist them to resolve their dispute – makes an order about costs which he is not really in a position to make.'
'There will be cases (perhaps many cases) in which it will be clear that there was only one issue, that one party has been successful on that issue, and that conduct is not a factor which could displace the general rule.'
This would seem to me to be clearly right. Given the normal principles applicable to costs when litigation goes to a trial, it is hard see why a claimant, who, after complying with any relevant Protocol and issuing proceedings, is accorded by consent all the relief he seeks, should not recover his costs from the defendant, at least in the absence of some good reason to the contrary. In particular, it seems to me that there is no ground for refusing the claimant his costs simply on the ground that he was accorded such relief by the defendants conceding it in a consent order, rather than by the court ordering it after a contested hearing. In the words of CPR 44.3(2), the claimant in such a case is every bit as much the successful party as he would have been if he had won after a trial.
v
Marczinski, [2002] EWCA Civ 756, [2003] 1 WLR 813 where the court could determine, without too much effort, who would have won, and then took that into account when awarding costs.
The position where cases settle in the Administrative Court
The order for costs in this case
v Croydon
in November 2009. The third reason is the substantial amount of evidence and the surprisingly difficult nature of the issue, including the change in the weight to be given to Dr Birch's views.
Lady Justice Hallett:
Lord Justice Stanley Burnton:
v Croydon. That decision led eventually to the order His Honour Judge McMullen QC of 26 July 2010. The respondents then had to reconsider their case, if they had not already done so. The appellant's reliance on the evidence of Dr Birch may have been ill-advised, but ultimately it was his case, based on his account of his age, that prevailed. The respondent agreed not merely to re-assess his age, but that his age was as he contended it to be: i.e., they conceded the entirety of his claim. These are the matters that led me to conclude that the appropriate order as to costs is that identified in paragraph 72 of the judgment of the Master of the Rolls.