England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THRR HIGH COURT OF JUSTICE
ADMINISRTATIVE COURT
(Professor Elizabeth Cooke)
CO/17392/2013

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/12/2015

Lord Justice Simon:

Introduction

1. This case raises the issue of how costs should be determined in the Administrative Court when the parties have settled their differences in an agreed order which records that the liability for costs should be determined by a Single Judge on the papers.
2. The decision which is the subject of the present appeal is that of Professor Elizabeth Cooke, sitting as a Deputy High Court Judge, made on 28 October 2014.

The facts

3. The Appellant, Daniel Baxter, is a 25 year old man with congenital deaf-blindness (dual sensory impairment), physical impairment and very significant social care needs.
4. On 25 June 2013, the Respondent completed a Community Care Assessment for him which was challenged. On 22 July 2013 his solicitors wrote a Letter before Claim alleging a failure to carry out a lawful assessment of, and make appropriate provision for, his needs. The Respondent replied in a letter of 24 July, maintaining the correctness of its assessment and decision-making process. On 26 July the Respondent made another Community Care Assessment and, on 30 July, wrote to say that its preferred option was to place the Appellant in supported living accommodation with Heritage Care at a facility in Grantham ('Heritage Care, Grantham'). The proposed accommodation was a house; and it appears that the only other residents were four elderly women with mental health problems. The Appellant's mother considered that he should continue to live in Spalding and regarded the Respondent's proposal as inappropriate and the decision to be legally flawed as the assessments had not been carried out in accordance with the specific guidance applicable to the assessment of the needs of deaf-blind people with specialist assessors.
5. On 15 August the Respondent wrote to say that it would defer its decision on future residence and care so as to obtain specialist input in relation to the needs of deaf-blind people. There was some discussion as to who was to provide this specialist input, with the Respondent deciding that a body called SILCS would undertake the work. The further assessment was completed on 25 September 2013.
6. On 4 October the Respondent made a decision proposing that the Appellant should be placed with Heritage Care, Grantham.
7. The Appellant's solicitors notified that they would bring Judicial Review proceedings challenging the decision; and on 28 November the Respondent wrote to say that it had not received any substantial comment as to why the placement at Heritage Care, Grantham was unsuitable or the grounds on which a Judicial Review would be pursued.
8. Following some delay while funding was obtained from the LAA, the Appellant lodged his claim for Judicial Review on 10 December 2013, challenging both the 4 October placement decision and the process which had led to it.
9. Part 7 of the Claim Form set out the relief that was sought:

An order quashing the decision of the [Respondent] of 4.10.13 and a mandatory order requiring the [Respondent] to carry out a lawful assessment of the Claimant's needs and to produce a lawful care plan setting out how his needs would be met.

10. The Statement of Facts and Grounds which were attached to the Claim Form challenged the decision to move the Appellant away from Spalding (at Glenside Resource Centre) and place him with Heritage Care, Grantham. The claim was put in a number of different ways: first, it was said that the decision to accommodate him in Grantham was legally flawed since the proposed placement could not provide for his needs; secondly, an argument was advanced based on a disproportionate interference with his Article 8 rights and, in particular, the importance of his private and family life in Spalding and a failure to assess his needs; thirdly, a complaint was made that the decision was a breach of Local Authority Circular LAC (2004) 20; and finally there was an allegation that the decision was unreasoned. Underlying the claim was a challenge to the Respondent's prior FACE assessment of needs under s.47 of the National Health Service and Community Care Act 1990 ('the 1990 Act'), made on 25 September 2013 which had concluded that his Community Care needs would be met by a supported living placement with Heritage Care, Grantham.
11. On 17 January 2014, before filing an Acknowledgment of Service and Summary Grounds, the Respondent's Legal Services Department sent an open letter to the Appellant's Solicitors which began:

We write to advise you of our client's intentions in moving forwards on this matter. Our client intends to conduct a Best Interests meeting pursuant to the Mental Capacity Act 2005 to determine the best type of placement for [the Appellant] to reside in and this has been arranged to take place on Wednesday 22nd January 2014. [The Appellant's mother] has been invited to attend, as an Independent Mental Health Advocate, a representative from Glenside and a representative from Cedar House. At this Best Interests Meeting consideration will be given to whether a supported living arrangement or residential placement would be in his best interests. This amounts to a re-assessment of the substantive issues in the case.

In addition, our client has also begun to investigate some alternative options to meet [the Appellant's] needs. At present, our client's preference remains for supported living, and although it is accepted that the Best Interests may alter this perspective, in recognition of the urgency of identifying a placement for [the Appellant], enquiries into the supported living options by Sense have commenced. Our client is willing to consider this as an option depending on the outcome of the Best Interests meeting.

12. The Respondent also offered to instruct an independent social worker to undertake an independent assessment of the Appellant's needs, and proposed that in these circumstances the proceedings be stayed and the hearing due to take place on 5 February should be vacated.
13. On 21 January, the Respondent served its Acknowledgment of Service and Summary Grounds of Opposition. This document included two paragraphs relied on by Mr Auburn:

5.8 The [Respondent] has commenced and remains engaged in the process of assessment. If there still remains a dispute after this, then it should be resolved by way of an independent report. It follows that the challenge to the assessments of September and October 2013 are academic and otiose …

5.9 The only relief that could be achieved by way of a claim for judicial review would be an order requiring further assessment and a service provision specification following from that decision. This is already being done, or will be done, and so it follows that the claim is redundant.

14. The parties subsequently agreed the terms of a Consent Order dated 3 February 2014. The two opening paragraphs recorded the Respondent's undertakings: paragraph 1 was its agreement to make a decision on the Appellant's future residence and care (including whether it would commission a place at Spalding or elsewhere) by 12 February; and paragraph 2 provided for a decision to be made in the light of a report from an independent expert instructed in accordance with paragraph 5 of the Order.
15. The next three paragraphs recorded information provided to the Court. Paragraph 3 informed the Court that the Respondent was completing a Best Interests meeting pursuant to the Mental Capacity Act 2005 to reconsider whether a supported living arrangement or a residential placement would be in the Appellant's best interests; paragraph 4 set out a list of those who were invited to attend the Best Interests meeting, including the Appellant's mother; and paragraph 5 recorded that the parties would jointly instruct an independent expert with expertise in dual sensory impairment to assess the Appellant's needs.
16. There then followed the order of the Court:

(1) The hearing listed for 6 February shall be vacated, and

(2) The application for Judicial Review is withdrawn.

(3) The issue of costs shall be dealt with by written submissions in accordance with the following timetable…

17. The timetable set out the dates when submissions should be served on behalf of the Appellant and Respondent, and by the Appellant in reply.
18. On 25 February 2014, the Appellant lodged 2 pages of written submissions, as provided by the current Administrative Court Guidance, to which I will return later in this judgment. The Appellant submitted in summary that it was a case (i) type of case, as identified in M v. Croydon London Borough Council [2012] EWCA Civ 595, [2012] 1 WLR 2607, in that he had obtained all the relief that he sought and was therefore the successful party.
19. In longer (6-page) submissions on costs (dated 9 March 2014, but only lodged on 13 March) the Respondent submitted that it was not a case (i) type of case. The Respondent had not conceded any of the relief which the Appellant had sought. Alternatively, if it were a case (ii) type of case, it fell within Lord Neuberger's observation that there was 'much to be said for concluding that there should be no order for costs.'
20. Unfortunately, when the file was placed before Mr Charles George QC (sitting as Deputy High Court Judge) the Respondent's submissions were omitted; and, having only seen the Appellant's submissions, and remarking that it was unfortunate that the Respondent had not lodged a costs submissions, the Deputy Judge concluded that it was a case (i) type of case, and made an order for costs in the Appellant's favour on 14 March.
21. By a further order of 23 May 2014, having now seen the Respondent's submission, he recalled his earlier order, expressed a provisional view that the Respondent was right and that there should be no order, but invited further submissions from the Appellant in accordance with the agreed costs timetable.
22. In fact the Appellant had already put in response submissions on 19 May; and it was these three costs submissions that Professor Cooke had to consider when the matter came before her in accordance with Mr George's 23 May Order.
23. On 28 October 2014, having considered the submissions she decided to make no order for costs, adding by way of observation:

It is clear from the submissions made by the parties that although this claim has been withdrawn the underlying issues have been and remain highly contested. For the avoidance of doubt I make it clear that, in the light of that, I consider that there is good reason for the length of the Defendant's submissions on costs. It is by no means clear whether the Claimant has obtained the relief sought and how matters might have turned out had the claim been pursued, and it is not the function of the court in assessing liability for costs to give a substantive decision about the litigation.

The Administrative Court Guidance

24. Before considering the parties' submissions it is convenient to refer to some of the provisions of the current Guidance, which applies where the parties to judicial review proceedings have agreed to settle the claim, but are unable to agree liability for costs and submit that issues for determination by the Court.
25. A problem is identified at §4 of the Guidance:

The Court faces a significant number of cases … which can consume judicial time far beyond what is proportionate to deciding a costs issue after parties have settled the case. The judicial and other Court resources applied to these cases must be proportionate to what is at stake. That requires efficiency and co-operation from the parties. At the same time, parties want to have the costs orders resolved fairly and quickly.

26. This paragraph identifies a number of material considerations: the importance of co-operation between the parties who can be taken to have experience in conducting litigation in the Administrative Court, proportionality in the deployment of Court resources, and a quick and fair determination.
27. The approach which is commended comes at §5 of the Guidance:

The onus lies on the parties to reach agreement on costs wherever possible, and in advance of asking the Court to resolve the issues, in order to support the overriding objective and ensure that efficient use is made of judicial time. See M v. Croydon London Borough Council [2012] EWCA Civ 595 [75]-[77].

28. In §7 there is a reference to the fact-specific nature of liability for costs, but also to the principles set out in M v. Croydon at [59]-[63], which are annexed to the Guidance.
29. In this passage Lord Neuberger MR identified three types of case and the different costs consequences which are likely to follow where, as here, there has been a settlement prior to a hearing: (i) a case where the claimant has been wholly successful, (ii) a case where the claimant has been partly successful, and (iii) a case where there has been some compromise which does not actually reflect the claimant's claims.
30. While recognising that in every case the allocation of costs will depend on the specific facts and the particular difficulty of deciding costs where there has been no trial, the Master of the Rolls made some general observations about the three types of case. In case (i), a claimant can generally expect to recover costs as the successful party. In relation to case (ii), he identified questions which would normally be determined at trial: for example, how reasonable the claimant had been in pursuing the unsuccessful claim and how important it was when compared to the successful claim, and how the costs increased as a result of pursuing the unsuccessful claim, drawing a contrast between those cases where the Court would be able to form a view as to the appropriate costs order and other cases where it would be much more difficult. In dealing with case (iii), he noted that the Court will often be unable to gauge whether there is a successful party, and if so which it is. In such a case there is an even more powerful argument that the default position should be no order for costs.
31. I will return to the Guidance later in this judgment, but three points are clear.
32. First, as stated in M v. Croydon at [1]:

As with any question relating to costs, the issue is both highly fact sensitive and very much a matter for the discretion of the first instance tribunal.

33. Secondly, the process of determining costs on paper is intended to be summary assessment with a view to assisting the parties and limiting the incurring of further costs.
34. Thirdly, as was made clear in M v. Croydon, it may not be easy to decide into which category the case falls.

The argument

35. Mr Auburn submitted that Professor Cooke's order had misapplied M v. Croydon. This was a case (i) settlement, and the Appellant should have been awarded his costs.
36. The Judicial Review challenge had been directed at the decision to place him at Heritage Care, Grantham, and to the process which had led to the decision. The Respondent had maintained the correctness of that decision and its decision-making and it was only after the Claim had been issued, in its letter of 17 January 2014, that the Respondent had agreed to conduct a 're-assessment of the substantive issues in the case' so as to determine the best type of placement, coupled with a reassessment of his needs by an independent expert. The Appellant had therefore achieved through the litigation at least as much as he could have obtained at trial.
37. The Respondent had effectively agreed to start the whole process again. It gave the Appellant the core elements of a fresh decision on placement and a new decision-making process, with the decision-making placed within the Best Interests framework. In these circumstances, Mr Auburn submitted, the Appellant should have been awarded his costs.
38. Mr Purchase submitted that there had been a changing background to the decision-making. The Respondent had always indicated that it was prepared to discuss the Appellant's placement, had made no final decision about it and had effectively made the offer which formed the basis of the Consent Order before the proceedings were begun. The Appellant had acted precipitately in issuing the Claim and the agreement set out in the Order could have been achieved without litigation if the Appellant had sent a Letter before Claim.
39. He submitted that Professor Cooke was entitled to make the Order that she did. She applied the correct legal principle and the decision was well within the ambit of her discretion. Furthermore, even if she were wrong to conclude that the Appellant had not achieved the relief he had sought, she was still entitled to make the costs order that she did because she could not conclude that the Appellant would have been successful at trial or because the link between the claim and the agreed relief was not 'so clear' as to justify an award of costs, see R (Speciality Produce Ltd) v. Secretary of State for the Environment, Food and Rural Affairs [2014] EWCA Civ 225, Patten LJ at [29].

Conclusion

40. There are many cases in the Administrative Court where the parties may be able to agree the form of relief but be unable to agree how costs should be allocated. Sometimes it suits both parties to leave over the question of costs. Where they decide to leave the matter of costs to be determined by the Court which has not had the advantage of considering the substantive issues in the case the parties will be taken to accept that the Court's approach will necessarily be a summary and proportionate assessment. That much is clear from the Guidance and from the decision in M v. Croydon to which the Guidance refers. The stipulation that submissions on cost should not exceed 2 pages further emphasises the point.
41. While there can be no generalised approach as to how Single Judges of the Administrative Court should approach the question of costs, it will often be helpful to start with the Claim Form (and, in particular, the relief claimed) and the Consent Order. Thereafter, the material factors will depend on the case. Thus, taking this case as an example, there may be a question as to whether there has been compliance with the Pre-action Protocol and whether the correspondence indicates that the Claim was either unnecessary or premature. Other potential factors are discussed in M v. Croydon at [61]-[63], although I doubt whether it is possible to draw up an exhaustive list of potentially relevant factors.
42. The Judge's task will be made easier if the length of the submissions is confined to 2 pages. Although Mr Auburn complained that the Respondent's submissions in the present case (not drafted by Mr Purchase) ran to 6 pages, it is clear that in the particular circumstances of the present case Professor Cooke found their contents helpful and their length excusable.
43. The Appellant had sought three types of relief and, although he is able to point to passages in the correspondence (the last sentence of the first paragraph of its letter of 17 January 2014) and the Grounds (in particular §5.9) in which the Respondent appears to have conceded the substance of the claim, I accept Mr Purchase's submission that this was not in fact so. The Respondent did not withdraw its decision that the Appellant should be accommodated at Heritage Care, Grantham. It did not accept that this decision was unlawful or agree to the quashing of the decision (or the equivalent) in the Consent Order. The Respondent said that it would hold a Mental Capacity Best Interests meeting at which the suitability of different types of accommodation would be considered with provision that, if there were no agreement, an independent expert would be commissioned. The fact that the offer of an independent expert went beyond what the Appellant was seeking indicates that the Consent Order was not linked to the Claim. This was different to a Community Care Assessment under s.47 of the 1990 Act, and the Respondent did not agree to carry out any such assessment. There was no agreement at any stage that the 4 October decision would be quashed, nor any agreement to produce a Care Plan, both of which had been core elements of the relief sought in the Judicial Review claim. Unless and until it changed its decision in the light of the Best Interests meeting the 4 October decision stood.
44. It is correct to say that the indication that the Respondent would carry out the Best Interests assessment was given after the Claim Form was issued, but the Respondent is entitled to point out that the Appellant's solicitors failed to comply with the Pre-Action Protocol. Their Letter before Claim was sent on 22 July 2013, before the impugned decisions (of 29 September and 4 October 2013) had been made; and the Statement of Facts raised grounds which were similar but materially different to those previously raised. Whether a Letter before Claim would have elicited the same response as the Judicial Review Claim is uncertain; but the Respondent can point to its letter of 28 November 2013 asking for the basis of the threatened Judicial Review claim and the Appellant cannot show that it was necessary to issue the claim in order to achieve the settlement. To that extent the Appellant has failed to establish that the link between the claim and the agreed relief was so clear that the Appellant can properly be treated as the successful party for the purposes of the award of costs, see the R (Speciality Produce Ltd) case at [29].
45. In my view Professor Cooke was fully entitled to the view she took that the Appellant had not obtained all the relief he sought and that it was not a case (i) type of case. In short, she was entitled to the view that this was not a case in which the claimant had been 'vindicated' by the Consent Order, see M v. Croydon at [61]. The much fuller investigation of the matter on this appeal, in which permission to appeal was exceptionally given, has not shown that the Single Judge's conclusion fell outside the range of decisions that were open to her or that it was founded on any error of law or principle.
46. Accordingly I would dismiss the appeal.

Lord Justice Floyd:

47. I agree.