England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE BURTON)

		Royal Courts of Justice The Strand London Tuesday 12 November 2002

Tuesday 12 November 2002

LORD JUSTICE TUCKEY:

1. This is a renewed application for permission to appeal by Chaim Reiner from a decision of Burton J that there should be no order for costs on the applicant's withdrawal of his claim for judicial review.
2. The applicant lives with his family at 16 Jessam Avenue in Hackney. He owned this house until February 1998, when he apparently sold it to his brother-in-law for £125,000. After redemption of the mortgage he says that he paid the balance of the proceeds, £37,927, back to his brother-in-law and another man to whom he owed this money. The applicant and his family, however, remained living in the house as a tenant of his brother-in-law, and he claimed housing benefit.
3. This short statement of what the applicant says happened makes it entirely unsurprisng that the council were suspicious of the claim. They were entitled to ask many questions and to seek proof of what the applicant claimed.
4. During 2000 the council made three substantial requests for information from the applicant. He maintained that he had complied with those requests, but the council did not agree. He complained to the Local Government Ombudsman, without success, and then took these judicial review proceedings, complaining that the council had acted unfairly and unreasonably in not determining his application.
5. Permission to apply for judicial review was refused on paper but renewed orally before Mr Supperstone QC on 25 June 2002. Sometime before this the council had filed a witness statement dated 13 June 2002 from Mr Davies, a Senior Benefit Appeals Officer, spelling out the council's concerns and the information they still required. The applicant responded with a 20 page witness statement and 50 pages of exhibits, dated 24 June.
6. Before Mr Supperstone it was agreed that the renewed application for permission should be adjourned on the council's undertaking to reconsider its refusal to determine the claim for housing benefit in the light of the information provided in the new statement.
7. After the hearing the council continued to press the applicant for information, particularly about the two debts which he said he had paid off from the proceeds of the sale, but of which there were apparently no records. No such records were forthcoming. After the applicant failed to attend an interview to which he was invited, the council wrote on 1 August refusing the claim for benefit.
8. This decision made pursuit of the application for judicial review pointless, but the applicant applied for his costs against the council. Before the judge it was argued that the proceedings had in effect been successful because they had forced the council to make a decision, albeit an unfavourable one.
9. The judge was referred to guidelines for cases such as this laid down by Scott Baker J, and approved by this court, in Brawley v Marczynski [2002] EWCA 756, which are:

(1) 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;

(2) it will ordinarily be irrelevant that the claimant is legally aided;

(3) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;

(4) how far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case;

(5) in the absence of a good reason to make any other order, the fall back is to make no order as to costs;

(6) 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.

The judge referred to the fifth and sixth of these guidelines and said:

"16. I am quite clear first, that in no circumstances whatever can this be said to be a success for the claimant. The claimant had begun this case saying he had provided enough information already. He provided more in the course of these proceedings and thus did not win on that argument (at least I am not in a position to judge whether he won) but it appears to me, [looking at the matter] on a broad basis, that he did not fight and win on the basis that the defendants already had sufficient information. Second, he certainly did not win on forcing the defendants to make a renewed decision without his supplying any further information because he did so. Third, it cannot be said that he won in obtaining a favourable consideration, because he did not obtain such a favourable consideration.

17. .... there is no good reason why any other order than the fall-back, no order as to costs, would be the right one. ...."

10. Mr Jonathan Miller, who now appears for the applicant, says that the earlier correspondence and Mr Davies' statement show that the council did not formulate their real objections to the claim until after the judicial review proceedings had started, and that they overlooked information which had already been provided by the applicant; much of the information given in the applicant's witness statement dated 24 June was already with the council; they could therefore have made the decision much earlier than they did, which would have avoided the judicial review proceedings altogether; the judge did not take this properly into account; the responsibility for the applicant incurring costs was that of council; and so it is wrong and unjust that he has had to incur considerable costs in obtaining a decision which any other applicant for housing benefit obtains free.
11. Mr Miller's other point on this application is that the judge fettered his discretion by looking at the matter purely from the point of view of success. Success was not a good guide to a just result in this case because it was difficult to say who had been successful. If he had taken account of all the factors identified in the guidelines, he would have reached a different conclusion.
12. Attractively though they are put, I do not accept any of these submissions. The argument before the judge, as it still in effect is, was that the applicant had succeeded. The judge had to deal with it. He disagreed that the applicant had succeeded, and so do I for the reasons given by the judge. Looking at the judgment, it is clear that the judge considered in some detail the history of the application for benefit and could not have failed to take into account the points which Mr Miller now makes. The judge refers to the guidelines which indicate that no order for costs is the fall-back position where it is not possible to say who has won or lost. He made such an order, as he said, "on a broad basis". In my judgment his approach cannot be faulted. This was a proper exercise of discretion by the judge with which there is no prospect of this court interfering.
13. In refusing permission on paper Latham LJ said:

"The judge's decision was one he was entitled to reach. He did not misdirect himself as to the factors to take into consideration. His approach to the question who had 'succeeded' was not perverse."

I agree. This renewed application must be refused.