England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Judge GILL Sitting As A Deputy High Court Judge
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/04/2018

Lord Justice Moylan:

Introduction

1. The Appellants appeal from the order for costs made on 20^th April 2016 by Judge Gill sitting as a Deputy High Court Judge in the Administrative Court. The order was made following the settlement of the Appellants' judicial review claim. In substance, the judge made no order for costs
2. The Appellants contend that the judge should have awarded them their costs. The Respondent, the London Borough of Croydon, ("Croydon") seek to uphold the judge's decision. At the centre of this appeal, therefore, is the question set out in R (Tesfay) v Secretary of State for the Home Department [2016] 1 WLR 4853 (para 13), namely whether the Appellants have established any of the grounds on which this court can interfere with a costs order.
3. I set out the background in more detail below but, in summary, there are two factual strands involved in the appeal. The first is the assessment which Croydon undertook under section 17 of the Children Act 1989 ("the 1989 Act") which was commenced in the latter part of September 2015 and was completed on 4^th November 2015. The second strand comprises the judicial review claim which the Appellants commenced on 28^th October 2015. This concluded with a consent order dated 18^th January 2016 after the application for permission had been refused on the papers by Garnham J but without the Appellants' renewed application being determined.
4. The two strands overlap because they both involved the issue of accommodation. In reality this is what the Appellants were hoping to obtain through the section 17 assessment. Also, the decision being challenged through the judicial review claim was expressed to be Croydon's "Failure to accommodate the Claimants".
5. Another feature of the background to the appeal is that, because permission was refused, the Appellants' lawyers have no entitlement to be paid by the Legal Aid Agency.
6. The Appellants advance two grounds of appeal:

(i) That the judge failed properly to apply the test in R (M) v Croydon London Borough Council [2012] 1 WLR 2607 as to whether the claim had in substance succeeded; and

(ii) That the judge had been wrong not to go behind Garnham J's order when that order could have been overturned on renewal and when the Appellants had "very properly not pursued the challenge to that order … to avoid a disproportionate use of court time and resources" and/or the judge placed undue weight on that decision.

Background

7. RL is a Ghanaian national and the mother of three children aged between 6 and 12. The eldest child is a British national. The mother and the two younger children have leave to remain in the United Kingdom subject to a condition that they should have no recourse to public funds. The mother separated from the children's father in 2011. He is also a Ghanaian national but has leave to remain in the UK without any attached conditions. He lives and works in London.
8. The precise chronology is not entirely clear but, broadly, the relevant dates are as follows.
9. On 8^th September 2015 RL attended a previously arranged appointment with Croydon's housing department. She told them that she and the children were facing eviction. She was informed that she was not eligible for assistance under homelessness legislation because of her immigration status. Her case was referred to another team within the council who wrote to her on 18^th September 2015 advising her of the options she had for finding accommodation and also inviting her to contact the council again within 7 days if she had been unable to find accommodation and wanted to request an assessment under section 17 of the 1989 Act.
10. On 22^nd September 2015 RL went to the council again and informed them that the family was due to be evicted on 15^th October. Following this Croydon began a Child in Need assessment under section 17 on or about 30^th September.
11. RL was seen at the council's offices on 30^th September for an assessment interview when she was requested to provide documents. She was seen again on 6^th October when further documents were requested. Subsequently, as part of the assessment process, a social worker visited the children's father, who was separated from the mother, on 9^th October and visited the mother and the children on 12^th October. The mother again went to the council's offices on 15^th October. According to a letter from Croydon dated 15^th October updated bank statements were still to be received.
12. There is a reference in the letter of 15^th October to RL informing Croydon that she was unable to obtain the requested documents and would not be returning to the offices that day. The letter concluded by saying: "It is very difficult for our team to make an informed decision regarding your children's needs if you are refusing to engage with us and provide us with all the requested documents which would enable us to conclude the child in need assessment".
13. RL and the children were evicted on 15^th October.
14. On 19^th October 2015 RL's solicitors, the Public Law Project ("PLP"), sent Croydon a Pre-Action Protocol letter "in relation to (the claimants') entitlement to support and accommodation" from Croydon. The letter made clear that it had been sent although the solicitors did not consider that the Protocol applied because of the urgency of the situation. A response was requested by 5.00pm the next day, 20^th October 2015.
15. The letter provided a number of documents including recent bank statements and details about the family's circumstances. The specific matter being challenged was said to be the "failure of the Council to provide accommodation to the children together with the mother pursuant to its duties under section 17 of the" 1989 Act. It was asserted that Croydon was acting unlawfully "in failing to provide accommodation pending assessment" under section 17.
16. Croydon's legal department replied on 20^th October and "strenuously" objected to the approach taken "particularly the ridiculous deadline". It was contended that it was not "unlawful not to accommodate your clients pending the completion of the assessment as the decision to provide accommodation is dependent upon the facts of the matter and your client's co-operation". It was asserted that RL had not co-operated fully. The letter ended by saying: "We further understand that the assessment will be completed by Thursday 22^nd October 2015".
17. By letter dated 22^nd October, PLP pressed the urgency of the situation and said that, despite the indication in the letter of 20^th October that the assessment would be completed by 22^nd October, "our client was told today when she attended social services yesterday that "something has come up" and that the assessment would not be concluded today". Croydon were requested "as a matter of urgency" to give the timescale for the assessment. It was again maintained that the failure to accommodate the claimants was unlawful.
18. On 26^th October 2015 PLP wrote saying that proceedings would be issued as soon as possible.
19. Judicial review proceedings were commenced on 28^th October 2015. An interim order requiring the provision of accommodation was made the same day. I deal further with these proceedings below.
20. On 30^th October Croydon sent an email indicating that they anticipated having the assessment by 3^rd November.
21. Croydon next wrote to PLP on 3^rd November stating that RL had been informed the previous day that the family would be accommodated from 4^th November.
22. At the same time as steps were being taken in respect of the judicial review claim, Croydon was continuing to progress the section 17 assessment. There is reference to a social worker visiting the children's then home on 20^th October; to the children's father providing documents on 27^th October 2015; and to him being interviewed on 2^nd November.
23. The Child in Need assessment was completed on 4^th November 2015. It contained a comprehensive analysis and recommended that "suitable temporary accommodation is provided to meet the needs of the children", until the outcome of, what is called, the "Change of Circumstances" application to the Home Office (to remove the no recourse to public funds restriction). Pending the determination of that application the position would be "reviewed regularly". This recommendation led to Croydon deciding to provide temporary accommodation.

Judicial Review Proceedings

24. The Judicial Review claim was issued on behalf of RL and the children on 28^th October 2015. As referred to above, the decision being challenged was the "Failure to accommodate the Claimants". This characterisation of the claim is repeated in the Grounds of Appeal which state that the "costs issue arises out of a claim for judicial review challenging Croydon's failure to provide the Appellants with accommodation under section 17 of the Children Act 1989". The interim relief sought was also the provision of accommodation. The final relief sought was a declaration that the children were in need for the purposes of the 1989 Act and an order that Croydon must draw up a plan lawfully to meet their needs.
25. It was asserted specifically that Croydon were behaving unlawfully: (a) by failing, in breach of section 17 of the 1989 Act, to provide accommodation for the children and RL when the children were clearly "in need"; (b) by failing to complete the section 17 assessment by 22^nd October "as promised"; and (c) by failing to provide accommodation on an interim basis.
26. The claim was considered on paper and Simler J made an order that Croydon should provide the claimants with accommodation until the determination of the application for judicial review.
27. Detailed summary grounds of defence were provided with the Acknowledgement of Service. It was not accepted that the assessment had been "promised" by 22^nd October. This was "at most, the projected completion date". A number of points were made as to the reasons for the assessment not being completed until 4^th November 2015 including as to matters which required investigation and RL's alleged lack of co-operation with the process. It was not accepted that Croydon had been obliged to complete the assessment earlier nor that it was obliged to make the decision to provide accommodation "either at all or sooner than it did".
28. The legal basis for the claim was also disputed with reference to R (G) v Barnet London Borough Council [2004] 2 AC 208. It was asserted, relying on MN and KN v London Borough of Hackney [2013] EWHC 1205 (Admin), that until a local authority had assessed a child as being in need its powers under section 17 were not engaged and that, accordingly, there was no power to provide accommodation under section 17 on an interim basis. It was accepted that a decision as to what, if any, services to provide to children assessed as being in need could be challenged on conventional public law grounds but that it could not be challenged on the ground that the local authority had failed to provide for assessed needs. It was also made clear that Croydon would "strongly contest any suggestion that the Claimants were successful in their application".
29. On 24^th November 2015 Garnham J refused permission to bring judicial review proceedings and made an order that RL should pay Croydon's costs of preparing the Acknowledgement of Service. In his view the grounds disclosed "no coherent case". I set out his reasons in full:

"For the reasons set out in the Summary Grounds of Defence this claim is not properly arguable.

The claimant's Grounds disclose no coherent case. In fact it is difficult to determine precisely what the allegations are said to be. The defendant has done well to tease out the eight suggested grounds in their Grounds of Defence.

If the reliance on the alleged promise to complete an assessment by 22 October is said to found a claim of breach of legitimate expectation, it fails to do so. There is no evidence of a clear unambiguous and unqualified representation.

Section 17 creates a power to provide services once a need has been assessed, it does not impose a duty in individual case, without more.

There is no obligation on a council to complete its assessment in the timeframe suggested or to provide information as it went along.

The question whether the children were in need is a matter of judgment for the Council. I can detect no irrationality in the council's approach.

The alleged failure to give reasons is hopeless. The letter of 20 October provides the reasons.

…

The suggestion that the council acted unlawfully by requesting information is hopeless. The question for the council was whether the claimant was in a position to provide accommodation for her children and the Council were entitled (perhaps obliged) to ask her in detail about her circumstances.

The evidence does not get close to supporting a suggestion that the Council failed properly to engage with the family."

30. The Renewal Notice is dated 3^rd December 2015. Two matters were advanced. First, it was again asserted expressly that Croydon was in breach of its duty under section 17 of the 1989 Act by failing to accommodate RL and the children. Secondly, it was argued that the assessment had not been completed within a reasonable time and not by 22^nd October.
31. A consent order was made on 18^th January 2016. The application was withdrawn with a number of recitals including:

"Upon the Defendant having completed a s.17 Children Act Assessment of the Claimants on 4.11.2015 and having decided to provide the Claimants with temporary accommodation … pending the outcome of a "change of Circumstances" application by the First Claimant to the Home Office."

The parties agreed that costs would be determined on written submissions.

32. The Claimants argued that they were entitled to their costs applying (M) v Croydon. Croydon argued to the opposite effect.
33. Judge Gill made a minor amendment to the costs order made by Garnham J (to reflect the fact that the claimants were legally aided) but otherwise made no order for costs. I also propose to set out her reasons in full:

"It is inappropriate for me to consider the merits of the underlying claim to all intents and purposes as if the order of Garnham J had not been made. The reality is that permission was refused on the papers by Garnham J and that decision stands.

I reject the claimant's submission that they are the successful party as they have obtained the relief sought. It is plain that the consent order was precipitated by the fact that the defendant decided that the second, third and fourth claimants were in need, having completed its s.17 assessment, and thus decided to provide interim accommodation. This had nothing to do with the claim and the grounds that had been rejected by Garnham J

In refusing permission on the papers, Garnham J said, inter alia, that the grounds disclosed no coherent case, that two of the eight grounds were hopeless and the remaining grounds unarguable. It is clear, when his reasons are compared with the defendant's summary grounds of defence, that he considered that the defendant was the successful party. Accordingly, the defendant is entitled to its costs for preparing and submitting the Acknowledgment of Service, although I note that the defendant has stated that it will not seek to enforce the order at present, given the claimants' circumstances.

That the claimants renewed their application for permission is beside the point. I do not consider it appropriate as being a disproportionate use of judicial resources, to engage further with the underlying merits of the claim beyond stating that it simply cannot be said that it is tolerably clear that the claimants would have won if the matter not settled between the date of Garnham J's order and the hearing of the renewed application for permission. Accordingly, there is no basis for ordering the defendant to pay any of the claimants' costs."

34. The grounds of appeal are set out above.

Legal Framework

35. Section 17 of the 1989 Act is headed "Provision of services for children in need, their families and others". Section 17(1) imposes a "general duty" on local authorities:

"(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children's needs".

Section 17(2) provides:

"For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2."

Sub-section (6) expressly provides that the services provided in the exercise of functions under this section "may include accommodation". Sub-section 7 provides that:

"Before giving any assistance … a local authority shall have regard to the means of the child concerned and of each of his parents".

Part 1 of Schedule 2 has a list of powers and duties which include:

"3 Assessment of children's needs

Where it appears to a local authority that a child within their area is in need, the authority may assess his needs for the purposes of this Act ...".

36. The Department for Education's safeguarding guidance from March 2015 provides a great deal of guidance about the preparation of assessments under section 17. This includes the uncontentious point that the speed with which an assessment is undertaken "should be determined by the needs of the individual child and the nature and level of any risk of harm faced by the child". The maximum suggested timeframe is 45 days with the additional observations that services can be commissioned before the assessment is completed "where particular needs are identified" and that in "some cases the needs of the child will mean that a quick assessment will be required".
37. It is perhaps worth noting that the scope of section 17 is broad and potentially covers a very large number of children. According to the Government's published statistics there were just over 720,000 children with an "episode of need starting in the year" 2016/17 and just over 600,000 assessments were completed in the same year. The nature of the episodes of need will also obviously vary significantly.
38. It was determined in (G) v Barnet that section 17 imposes no duty on a local authority to provide any particular child with any particular services. The claimants in that case had argued that under section 17 a local authority (para 74),

"owed a duty to each individual child in need to provide that child with residential accommodation to enable the child to live with his or her mother in the same family if an assessment of that child's needs shows that this is what is required to meet their needs."

This argument was rejected because the duties imposed on local authorities by section 17 did create a duty enforceable by individuals (paras 83) because it was a general duty owed to all children "and not to each child in need individually" (para 85). The section did not "give a correlative right to the individual which he can enforce in the event of a failure of its performance": Lord Hope (para 91).

39. In two of the cases determined in that decision the claimants were single mothers who, with their children, were homeless and ineligible for housing from the local housing authority. The children were in need (Lord Hope: para 72). However, despite this factual context, the court rejected the claim for an order that the local authority must provide services to meet the children's assessed needs and for a declaration that the local authority had acted in breach of its statutory duty. Further, in the third case this was also despite the fact that the children had been assessed under section 17 as being in need of alternative accommodation. The effect of the assessment was not to "crystallise the general duty under section 17(1) so that it has become a specific duty owed to A's children as individuals": Lord Hope (para 94).
40. Part of his reasoning was as follows:

"92 A further point is particularly relevant to this case, as the service which is sought is the provision of residential accommodation. The need which the assessment has identified is not for the provision of temporary accommodation only. As the recommendation at the end of the assessment puts it, what this family needs is to be "rehoused". Section 17 refers to a range and level of services appropriate to the children's needs. It is broadly expressed, with a view to giving the greatest possible scope to the local social services authority as to what it chooses to do in the provision of these services. Although the services which the authority provides may "include" the provision of accommodation (see section 17(6)), the provision of residential accommodation to rehouse a child in need so that he can live with his family is not the principal or primary purpose of this legislation. Housing is the function of the local housing authority, for the acquisition and management of whose housing stock detailed provisions are contained in the Housing Acts. Provisions of that kind are entirely absent from this legislation.

93 We were informed that this is far from being an isolated case of its kind, as about 200 such cases involving children in need had been identified by the defendants in their area in the past five months. The expenditure of limited resources on the provision of residential accommodation for housing these children with their families would be bound to mean that there was less available for expenditure on other services designed for the performance of the general duty which section 17(1) has identified. A reading of that subsection as imposing a specific duty on the local social services authority to provide residential accommodation to individual children in need who have been assessed to be in need of such accommodation would sit uneasily with the legislation in the Housing Acts. As Mr Goudie pointed out, it could have the effect of turning the social services department of the local authority into another kind of housing department, with a different set of priorities for the provision of housing for the homeless than those which section 59 of the Housing Act 1985 lays down for the local housing authority."

41. It is to be noted that it was not argued that this duty arose prior to the completion of the assessment. The duty to assess was addressed, for example, by Lord Nicholls (in his dissenting speech) when he referred to it being implicit in section 17(1) "that a local authority will take reasonable steps to assess, for the purposes of the Act, the needs of any child in its area who appears to be in need" (para 32). He went on to observe that a failure "to carry out this duty may attract a mandatory order in an appropriate case as occurred in R (AB and SB) v Nottinghamshire County Council (2001) 4 CCLR 295". Although in a dissenting speech, Lord Hope agreed with these observations (paras 77 and 94).
42. It is, therefore, clear that whilst there can be an obligation or duty to undertake an assessment under section 17 there is no enforceable obligation to provide an individual with any services even those identified as being a service of which the child is in need.
43. On the issue of costs, we were referred to R (Bahta) v Secretary of State for the Home Department [2011] EWCA Civ 895, (M) v Croydon and Tesfay.
44. In the Bahta case, Pill LJ referred to what Lord Hope had said about publicly funded lawyers in R. (on the application of E) v JFS Governing Body [2009] 1 WLR 2353:

"25. It is one thing for solicitors who do a substantial amount of publicly funded work, and who have to fund the substantial overheads that sustaining a legal practice involves, to take the risk of being paid at lower rates if a publicly funded case turns out to be unsuccessful. It is quite another for them to be unable to recover remuneration at inter partes rates in the event that their case is successful. If that were to become the practice, their businesses would very soon become financially unsustainable. The system of public funding would be gravely disadvantaged in its turn, as it depends upon there being a pool of reputable solicitors who are willing to under take this work. In Boxall Scott-Baker J. said that the fact that the claimants were legally aided was immaterial when deciding what, if any, costs order to make between the parties in a case where they were successful and he declined to order that each side should bear its own costs. It is, of course, true that legally aided litigants should not be treated differently from those who are not. But the consequences for solicitors who do publicly funded work are a factor which must be taken into account. A court should be very slow to impose an order that each side must be liable for its own costs in a high costs case where either or both sides are publicly funded. Had such an order been asked for in this case we would have refused to make it."

45. In (M) v Croydon Lord Neuberger MR (as he then was) reviewed the history of costs in the Administrative Court starting with R (Boxall) v Waltham Forest London Borough Council (2000) 4 CCLR 258. The Boxall guidelines were subsequently adjusted to include, as a relevant factor, adherence to the Pre-Action Protocol for Judicial Review which had been introduced in December 2001: R (Scott) v Hackney London Borough Council [2009] EWCA Civ 217. In that case Hallett LJ said (para 51):

"when 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".

46. Lord Neuberger then referred to (para 37) "The next significant development (being) the review of costs conducted by Sir Rupert Jackson who published his Review on Civil Litigation Costs: Final Report in December 2009". This recommended that:

"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."

47. After referring to Bahta, Lord Neuberger addressed costs in ordinary civil litigation including "after settlement before trial". In respect of the latter he said:

"49 … Given the normal principles applicable to costs when litigation goes to trial, it is hard to 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 ….

51 In many cases which are settled on terms which do not accord with the relief which the claimants sought, the court will normally be unable to decide who has won, and therefore will not make any order for costs. However, in some cases the court may be able to form a tolerably clear view without much effort …"

Lord Neuberger concluded that, where cases settled in the Administrative Court, the approach should be the same as in ordinary civil litigation (para 58), adding:

"60 Thus in Administrative Court cases just as in other civil litigation, particularly where a claim has been settled, there is, in my view, a sharp difference between (i) a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement, and (ii) a case where he has only succeeded in part following a contested hearing, or pursuant to a settlement, and (iii) a case where there has been some compromise which does not actually reflect the claimant's claims. While in every case the allocation of costs will depend on the specific facts, there are some points which can be made about these different types of case.

61 In case (i), it is hard to see why the claimant should not recover all his costs, unless there is some good reason to the contrary. Whether pursuant to judgment following a contested hearing, or by virtue of a settlement, the claimant can, at least absent special circumstances, say that he has been vindicated, and as the successful party that he should recover his costs. In the latter case the defendants can no doubt say that they were realistic in settling and should not be penalised in costs, but the answer to that point is that the defendants should on that basis have settled before the proceedings were issued: that is one of the main points of the pre-action protocols. Ultimately it seems to me that the Bahta case [2011] 5 Costs LR 857 was decided on this basis.

63 In case (iii), the court is often unable to gauge whether there is a successful party in any respect and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs. However, in some such cases it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win."

48. In Tesfay, the issue of costs was considered again by Lloyd Jones LJ (as he then was). He commented that (para 57):

"Success in public law proceedings must be assessed not only by reference to what was sought and the basis on which it was sought and on which it was opposed, but also by reference to what was achievable".

It was also relevant to consider why the defendant had conceded (para 62). In conclusion, he summarised the position as follows (para 56):

"Accordingly, I consider that the judge should have approached this matter by asking two questions. First, was the effect of the withdrawal of the certification of the human rights claims that the claimants should be regarded as having succeeded so that in accordance with Bahta's case [2011] 5 Costs LR 857 and M's case [2012] 1 WLR 2607 they should normally receive their costs? Secondly, if so, was there a good reason for making a different order?"

49. After a, perhaps, unduly extensive consideration of the authorities, the position can be summarised as follows. The court should first consider whether the claimant "can say he has been vindicated" and is the "successful party" (per Lord Neuberger: para 61) or "should be regarded as having succeeded" (per Lloyd Jones LJ: para 56). Where there is "not a clear winner" the court may, nevertheless, be able "to form a tolerably clear view without much effort" as to who has won or "would have won if the matter had not settled" (per Lord Neuberger: paras 51, 62 and 63).

Submissions

50. Mr Buley's straightforward principal submission is that, judged by the outcome of the litigation, the Appellants were the successful parties. He submits that this should be determined by looking at the relief sought by the claimants in the judicial review claim and the outcome. In failing to come to this conclusion the judge must have failed properly to apply the test in (M) v Croydon.
51. He also submits that the exercise which Croydon was undertaking under section 17 was relatively straightforward and should have focused on the homelessness issue. Given RL's first contact with Croydon was on 8^th September they should have completed the assessment prior to the date on which the claimants became homeless. In answer to the scope of section 17, as determined by (G) v Barnet, he submits that any outcome other than a decision by Croydon to provide accommodation would have been irrational.
52. He further submits that it is critical to look at the Pre-Action Protocol and, what he submits was, Croydon's lack of proper engagement in the pre-action correspondence. Apart from the brief reply on 20^th October 2015, which had said that the assessment would be completed by 22^nd October, no further letter was received until 3^rd November.
53. In response to Croydon's submission that accommodation was provided as a result of the section 17 assessment and not the claim, Mr Buley describes this as specious.
54. As to the second ground of appeal, Mr Buley submits that the judge gave excessive weight to Garnham J's order and reasons when this decision should have been irrelevant to the issue of costs.
55. Mr Tempest submits that the judge identified the relevant legal test and correctly applied that test. In his submission, in assessing which party has been successful, the court should consider: (i) the basis on which the claim was brought and defended; (ii) the reasons for which (if applicable) the defendant provided the relief sought; and (iii) whether the latter was causally related to the claim.
56. He relies on the reasons given by the judge as supporting her conclusion that the claimants were not the successful party. In particular, her assessment that: "It is plain that the consent order was precipitated by the fact that the defendant decided that the (child) claimants were in need, having completed its s.17 assessment and thus decided to provide interim accommodation. This had nothing to do with the claim and the grounds that had been rejected by Garnham J". This assessment, he submits, was supported by the material before the judge as was her additional conclusion that "it simply cannot be said that it is tolerably clear that the claimants would have won".
57. More broadly, Mr Tempest submits that the claimants should not be regarded as having been successful and that Croydon should not be regarded as having conceded. Conversely, all that has happened is that Croydon carried out its statutory duty under section 17 and then decided to provide accommodation having regard to that assessment. The proceedings had nothing to do with this outcome in particular because of the scope of section 17 as determined in (G) v Barnet which meant that the claim was without merit.
58. Further, he submits that the fact that the assessment led to Croydon deciding to offer accommodation does not mean this could be predicted as the inevitable result or that any other result would have been irrational. This, he submits, would be to put the cart before the horse. It cannot be said that all children who have been made homeless are necessarily in need. This will depend on a range of factors.
59. As for timeliness of the section 17 assessment and Croydon's engagement with PLP, Mr Tempest submits that these factors do not impact on whether the claimants should be regarded as having succeeded. He further submits that there is nothing to suggest that the assessment was outside appropriate timescales. As for the Pre-Action Protocol, he submits that Croydon were sufficiently engaged with PLP and the claimants.
60. As to the second ground of appeal, Mr Tempest submits that the judge did not refuse to go behind Garnham J's order and that she was entitled to place considerable weight on his decision. The judge took into account that the claimants had renewed their application and was entitled to conclude that it was not tolerably clear that they would have won if the claim had not been settled.

Determination

61. I propose first to address whether the judge's decision has been shown to be flawed such that this court should interfere with it.
62. In my view, the judge correctly identified the test she had to apply. She considered whether the claimants were the successful party. She additionally considered whether it was tolerably clear that the claimants would have won if the matter had not settled. In adopting this approach she was seeking to apply what had been said in (M) v Croydon and Tesfay.
63. Did the judge fall into error in her application of this approach and was she wrong in her conclusions?
64. In my view, the judge was entitled to conclude that the outcome to the proceedings was not the result of the proceedings but was the result of the completion of the section 17 assessment. She was entitled to conclude that the decision to provide accommodation was consequent on the latter and "had nothing to do with" the former. I consider that the judge reached this conclusion as a result of her assessment of whether the claimants had been successful.
65. I also consider that the judge could not ignore Garnham J's decision. I am not persuaded that she gave undue weight to this decision. The fact was that the application had been dismissed 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.
66. Looking at the matter more broadly, as referred to above, the decision being challenged was the failure to provide the claimants with accommodation under section 17 of the 1989 Act. In my view, this could properly be said to be a flawed claim or, if that is unduly harsh, a claim with little substance. The claimants had no "entitlement to … accommodation" as it was put in PLP's letter of 19^th October. (G) v Barnet makes it clear that, even when a child has been assessed as being in need of accommodation, there is no right to an order that that need be met in the event of a failure to provide accommodation.
67. In those circumstances, I do not accept Mr Buley's 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.
68. I have already said that I consider the judge was entitled to decide that the provision of accommodation had nothing to do with the claim. My conclusion on this is fortified by my view of the substance of the claim. I agree with Mr Tempest's submission that Croydon should not be regarded as having conceded the claim or any part of it but, rather, as having carried out the section 17 exercise. The route by which the claimants were provided with accommodation cannot be said to be the proceedings, at least sufficiently for them to be regarded as the successful parties.
69. In those circumstances, I do not consider that the Pre-Action Protocol or the correspondence has any impact on the issue of costs because they do not impact on the question of whether the claimants were successful. In addition, in the context of the demands placed on local authorities, especially children's services which are under particular pressure to protect and safeguard children from a wide range of risks including the most severe, I do not consider that Croydon were outside a reasonable level of engagement when responding to PLP's letters.
70. Further, I see no basis for interfering with the judge's determination by reference to whether the section 17 assessment could or should have been completed at an earlier date. At the very least, it is not tolerably clear that this would have been successful given that the assessment was completed within about six weeks and given the matters raised about the provision of information. Among other reasons, section 17(8) requires a local authority to have regard to the means of "each of (the child's) parents" before giving any assistance. Further, the fact that accommodation was provided following completion of the assessment does not demonstrate that this would be the outcome. Local authorities have very considerable demands on their resources under section 17 (as referred to above) and more generally and need to ensure that they are deployed in accordance with their duties and obligations. Lord Hope's observations in (G) v Barnet (paras 92 and 93) are relevant to this.
71. In coming to the above conclusions, 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.
72. In conclusion, I propose that the appeal be dismissed.

Lord Justice Underhill:

73. I too have reached the conclusion that the appeal should be dismissed, but not by quite the same route as Moylan LJ and not without some reluctance.
74. I do not believe that the Appellants can succeed in their claim for costs in this case on the conventional (M) v Croydon basis – that is, that they obtained substantially the relief sought and are accordingly to be viewed as the successful party. Although in broad terms the relief sought was the provision of accommodation, such relief was not, as Moylan LJ demonstrates, available as a matter of law. More accurately, what the Appellants were seeking was an assessment under section 17 of the 1989 Act, which might (and indeed eventually did) lead to the provision of accommodation. At the time that the proceedings were issued there was no dispute between the Appellants and the Council that it was under an obligation to carry out such an assessment: it had indeed started, to the Appellants' knowledge, some time prior to the commencement of proceedings. The object of the proceedings was not to secure an assessment but to secure it sooner than it was feared would otherwise be the case. That being so, the fact that the assessment was in fact completed, and that the Appellants were accommodated accordingly, does not represent "success": that would have happened anyway. I thus agree with Moylan LJ that that outcome was not the result of the proceedings. 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".
75. However, I do not think that that is the end of the matter. It is necessary to look at the particular circumstances of the case. 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: the Court has to do its best to reach a fair conclusion on a summary basis, with the fallback of making no order if that is not possible.
76. I do not believe that the Appellants can satisfy element (a) in that approach. The starting-point must be Garnham J's refusal of permission on the basis that the claim had no realistic prospect of success. That obviously posed a serious problem for the Appellants when the costs issue came before Judge Gill, but I do not believe that it was necessarily the end of the road. Given that they had sought an oral renewal, which had been superseded by the completion of the assessment and the provision of accommodation, I believe that it was open to them to seek to challenge Garnham J's assessment, albeit within the constraints of a summary process; 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. 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. Not all of the points addressed by Garnham J go to the heart of the claim – the grounds were somewhat diffusely pleaded. But the crucial averment was that Croydon had unlawfully delayed in producing the assessment. Assessing the materials before us on, inevitably, a summary basis, I think it is very doubtful that that claim would have succeeded. My reasons are essentially those given by Moylan LJ at para. 70 of his judgment. A section 17 assessment is a serious exercise, requiring information from several sources, and, as My Lord says, local authorities have many calls on their resources. A Court should be slow to find that an authority had been guilty of unlawful delay simply because it had missed a benchmark target or its performance may be shown to have been sub-optimal in some particular respect. There were indications that Croydon had encountered difficulties in accumulating all the information that it felt it required: 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.
77. It is thus not necessary to consider element (b). If it had been, I would have had little difficulty in finding that the Appellants – or, more realistically PLP – had acted reasonably in starting proceedings at the time they did. It is not simply that the availability of accommodation for the adult Appellant and her children was in doubt from day to day. It is also that Croydon had missed its own proffered date of 22 October 2015 for the production of the assessment and had then failed either to explain the problem or to suggest any other date notwithstanding PLP's letter of 22 October warning that the Appellants would now have to take proceedings: there was in fact no communication with PLP by Croydon's Legal Department between 22 October and 30 October, when it sent an e-mail saying that it anticipated being able to answer substantively on 3 November. Mr Tempest acknowledged that this was "unfortunate". I can well understand why PLP, assuming that they were right in believing that the delay was already unlawful, felt that they had no alternative but to issue proceedings. But that does not avail the Appellants unless that assumption was correct, and I do not believe that it was.
78. 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:

79. I agree that this appeal should be dismissed for the reasons stated by Lord Justice Underhill. I wish in particular to associate myself with the comments in the final paragraph of that judgment.