ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
THE HON MR JUSTICE LINDBLOM
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT DBE
(VICE-PRESIDENT OF THE QUEEN'S BENCH DIVISION)
LORD JUSTICE STANLEY BURNTON
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|MAYOR AND BURGESSES OF THE LONDON BOROUGH OF CROYDON
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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
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  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  EWCA Civ 895,  5 Costs LR 857 ('Bahta').
The relevant court rules on costs
The Administrative Court cases on costs
(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.
'[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
'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.
The position where cases settle in the Administrative Court
The order for costs in this case
Lady Justice Hallett:
Lord Justice Stanley Burnton: