QUEEN'S BENCH DIVISION
London. WC2A 2LL
B e f o r e :
|DB and Others||Claimant|
|WORCESTERSHIRE COUNTY COUNCIL||Defendant|
Miss Jenni Richards (instructed by Legal Services Worcestershire County Council) for the Defendants
Hearing dates: 01/08/2006
Crown Copyright ©
The Honourable Mr Justice Owen :
The background to the application
"5. The claimants' claim that the decision to terminate the contract of Marpool Ltd is unlawful because:
(a) The decision was made without adequate consultation with the claimants
(b) The defendant failed to take into account relevant factors including: the views of the claimants' parents or of professionals significantly involved in the care or treatment of the claimants, the claimants' needs, and the impact of the decision upon the claimants, "
6. Further, the defendant, as social services authority with responsibility for the delivery of social services to the claimants, has unlawfully decided that it will not fund Marpool Ltd to provide support to the claimants at their present accommodation. The claimants rely in particular on the following areas:
(a) The decision is incompatible with the claimants' community care assessments
(b) The defendant has failed to carry out community care assessments as to the claimants housing needs
(c) The decision is incompatible with the claimants' wishes to remain at Marpool and is contrary to the key principle of choice in the White Paper "Valuing People: A New Strategy for Learning Disability for the 21st century"
(d) The decision is irrational because there is no suitable alternative provision, the provision at Marpool is the best and most suitable that is available for the claimants, and/or :any alternative that the defendant does identify is likely to cost more than the present arrangements. "
It was also asserted on the claimants' behalf that the decision under challenge violated the claimants' article 8 rights.
"In view of this most or all of the services commissioned to meet the claimants' assessed needs will be funded by Worcestershire. But it wishes to keep open the option of joint funding with Supporting People in individual cases."
The consent order also set out the agreement by the defendant "... to complete their existing community care assessments of the claimants .., by 1 December 2005. " The order made further detailed provisions similar in some respects to the content of the order in the instant case dated 7 October 2005. As Collins J observed "essentially the consent (order) protects the position of the claimants and for the time being the position of Marpool." As in this case the issue of costs was reserved, and was determined by Collins J who concluded that he was "... not persuaded that the case here was likely to result in a win for the claimants, although, as I say, they had a reasonable case. In those circumstances, with some regret, it seems to me that I must fall back on the position that the appropriate order is no order for cost," Miss Richards, who appeared for the defendant before me, argued that given the very close similarity between the two claims, it would be highly anomalous for a different order to be made with regard to the costs of this claim.
The legal framework
"Having considered the authorities, the principles I deduced to be applicable are as follows:
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 two par ties 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 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 fallback is to make no order as to costs.
vi) The court should take care to ensure that it does not discourage parties in settling judicial review proceedings for example by a local authority making a concession at an early stage. "
"It is not for me, at this stage, in effect to re-hear a substantive challenge. That would be time-consuming, costly and wholly disproportionate to the amount of costs at stake. It seems to me that I have to approach it on this basis: does a comparatively cursory reading of the papers, albeit a reading which is intended to be informed, demonstrate to me, clearly, that the Secretary of State was very likely to lose and the claimant very likely to succeed as at the permission stage? I do not think I could possibly reach such a conclusion applying that test. In the absence of a good reason the normal order is that there should be no order as to costs. I have been unable to discern the good reason why I should depart from what is normally done in this court. "
"Where the defendant has taken steps to remedy the subject-matter of the challenge, because it has recognised that is likely to lose, then the defendant should pay the claimants' costs.
But if the challenge has become academic because the defendant has decided to short-circuit the proceedings, to avoid their expense or inconvenience or uncertainty without in any way accepting the likelihood of their succeeding against him, then he should not be liable for the claimants' costs. There should be no order. "
The SP Funding decision
The social services decision