England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		Friday 20 March 2015

JUDGE CURRAN:

1. This is a ruling on the issue of costs.
2. In this case the Claimant brought a claim for judicial review of a decision of the Defendant. That claim was resisted throughout by the Defendant with the active support of the first interested party (the University). In the result the Claimant succeeded in obtaining an order quashing the decision under challenge (the "Amended Complaint Outcome") although she was not successful in obtaining all the relief sought on her behalf.
3. A large number of issues were ventilated at the hearing and in respect of some of these issues the Claimant was not successful. A point on the Equality Act 2010 was one, in my view, that should not have been taken. Another point on exceptional circumstances involving her mental state and possible dyslexia was resolved firmly against her. Other points upon which the Claimant did not succeed were perfectly arguable points upon which permission had been granted. On the majority of matters which were most hotly contested at the hearing however the Claimant was largely successful.
4. The Claimant seeks an order for costs against both the Defendant and the University (the first interested party). They respond by submitting that the appropriate course should be for there to be no order as to costs. All parties had requested the court to receive written, rather than oral, representations on the issue of costs and to resolve the issue after consideration of such representations. In the event, only the Claimant, the Defendant and the First Interested Party submitted such representations.

The Rules

5. CPR Part 44.2 (2) provides that if the court decides to make an order about costs, (a) the general rule is that the unsuccessful party would be ordered to pay the costs of the successful party, but (b) the court may make a different order.
6. As to how to approach that question, CPR Part 44.2 (4) provides that in deciding what order, if any, to make about costs the court will have regard to all the circumstances, including the conduct of all the parties, whether a party has succeeded on part of its case even if that party has not been wholly successful and any admissible offer to settle made by a party which is drawn to the court's attention and which is not an offer to which costs consequences under Part 36 apply.
7. CPR Part 44.2 (5) explains that the conduct of the parties includes conduct before as well as during proceedings and in particular the extent to which the parties followed practice directions or any relevant pre-action protocol.

The Authorities

8. In Davey v Aylesbury Vale District Council [2007] EWCA Civ 1166, [2008] 1 WLR 878 at 29, Sir Anthony Clarke MR said:

"29 ..... costs should ordinarily follow the event and ..... it is for the [party] who has lost to show that some different approach should be adopted on the facts of a particular case."

9. In R v Lord Chancellor ex p Child Poverty Action Group [1999] 1 WLR 347, 355F to 356A, Dyson J (as he then was) said:

"The starting point must be the basic rule that costs follow the event. If it transpires that the respondent has acted unlawfully, it is generally right that it should pay the Claimant's costs of establishing that."

10. In R (Smeaton) v Secretary of State for Health [2002] EWHC 886 Admin, [2002] 2 Fam LR 146, 406, Munby J (as he then was) said:

"The starting point is the same in judicial review proceedings as in other types of cases."

11. In Fox v Foundation Tiling Ltd [2011] 6 CLR 961, para 62, the Court of Appeal referred to the "growing and unwelcome tendency" to depart "too far and too often" from the principle that costs follow the event.
12. In Budgen v Andrew Gardner & Partnership [2002] EWCA Civ 1125, para 35, it was observed that it is likely in any litigation that a successful party will not succeed on every issue.
13. In M v London Borough of Croydon [2012] EWCA Civ 595, the Claimant challenged the council's assessment of his age. He sought judicial review of the council's decision primarily on the basis that Croydon failed to give proper weight to the evidence of a medical witness. In November 2009 the Supreme Court gave judgment in A v London Borough of Croydon and M v London Borough of Lambeth [2009] UKSC 8, [2009] 1 WLR 2557, which effectively altered the way in which age-assessment cases were handled. Following that case, permission was granted to M to apply for judicial review of the Croydon Council's decision. The council subsequently instructed a different medical witness, who considered that it was possible that M was the age he claimed. The council decided to concede the claim, but refused to pay the Claimant's costs. The issue of costs was determined by Lindblom J. on the basis of written submissions from the parties. He made no order as to costs. He had considered the cases of R (Boxall) v Waltham Forest London Borough Council [2001] 4 CCLR 258 as explained by R (Scott) v Hackney London Borough Council [2009] EWCA Civ 217. In the latter case, Hallett LJ, with whom Richards LJ and Sir Anthony Morritt agreed, said:

"I would ..... urge all judges to bear in mind that 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. A judge must not be tempted too readily to adopt the fall-back position of no order for costs."

14. After Lindblom J had made his decision in the case of M, the Court of Appeal gave judgment in R (Bahta) v Secretary of State for the Home Department [2011] EWCA Civ 895. That case made reference, inter alia, to the following principles. First, public authorities could not expect special treatment in court; and, secondly, any degree of success prima facie entitled the Claimant to costs. Pill LJ said:

"64 ..... what needs to be underlined is the starting point in the CPR that a successful Claimant is entitled to his costs .....

"65 When relief is granted, the Defendant bears the burden of justifying a departure from the general rule that the unsuccessful party will be ordered to pay the costs of the successful party .....

"66 I do not accede to the request to tack on words to the Boxall guidelines to meet the appellants' submissions. Such a formula would carry the danger of being used mechanistically when what is required is an analysis of the circumstances of the particular case, applying the principles now stated. These include the warning in Scott that a judge should not be tempted too readily to adopt a fall back position ...."

15. In the case of M, Sullivan LJ granted the Claimant permission to appeal against the order of Lindblom J, and at the hearing in the Court of Appeal guidance was given as to the award of costs in judicial review claims generally, although specific reference was made, on the facts of the case, to those cases which settle out of court. The leading judgment was given by Lord Neuberger MR (as he then was). In summary, for the purposes of the instant case the law was explained as follows. In judicial review cases the general rule as to costs as in ordinary civil litigation applies. The successful party is entitled to costs. However, the court has a general discretion under CPR 44.3 (2). Where a Claimant wins on some points and not on others there is room for a different order as to costs than that contemplated in Bahta. Further, even where a litigant has been wholly successful, there may be reasons for not ordering the Defendant to pay the whole of the Claimant's costs.
16. Particular points from the judgment were ventilated in written submissions and emphasised by the parties, and other authorities were also referred to, but in my view the summary of the law which I have given sufficiently states the principles to be followed.

Is the Claimant the successful party?

17. The first question which may be asked in terms of general approach is whether or not this is a case in which there was no winner and no loser. In my judgment it would be quite wrong to take such a view. Both the Defendant and the University fought the case without any significant concessions being made and in my view, in the light of the Hales Reference in particular, unrealistically. The Claimant was successful in terms of the outcome, and both the Defendant and the University were unsuccessful. In such circumstances, the terse rule well-known at the common law Bar might be thought to be applicable: viz. "they came, they fought, they lost, they pay."
18. Be that as it may, the Defendant and the University submit that there are unusual circumstances here which should either result in no order as to costs being made or should require them to pay only a proportion of the Claimant's costs. Very lengthy written submissions, including replies to other parties' submissions, have been placed before the court. Sacrificing a minimal degree of exactitude for brevity, these may be summarised as follows.
19. First, and generally, the Defendant and the University contend that those representing the Claimant continually shifted their ground in their presentation of her case to the OIA, and created unnecessary and distracting work for the OIA and for those representing them. The Claimant was ultimately successful on a basis which involved late amendment and very late re-amendment of her case. Secondly, and in particular, the Claimant was not successful in respect of the following issues which were argued at the hearing:

(1) The Equality Act point.

(2) The medical evidence point and the issue of "exceptional circumstances."

(3) Procedural unfairness in respect of the letter of 11 June 2013.

Moreover a number of more minor issues, particularized in the University's response to the Claimant's submissions on costs, which had been raised either in the pre-action protocol or in the original grounds were either abandoned or simply not pursued by the Claimant.

20. At the very least, therefore, I understand the Defendant -- and to an extent the University -- to submit that an issue-based approach is appropriate. Counsel for the Defendant summed up the matter as follows:

"The Claimant succeeded in a small part of her case. The way in which her case was conducted resulted in much unnecessary expenditure ..... Whether an issue-by-issue approach is taken, or the matter is looked at globally, the Claimant cannot be characterised as having won as much as half of her case. Further, the Defendant was not given fair warning of those aspects of the case on which the Claimant did succeed, and the conduct of the case by those representing the Claimant was unreasonable for this reason and also because of the scatter-gun approach adopted, the inadequacies in the Claimant's pre-action protocol letter, the amendments and (extraordinarily and unnecessarily late) re-amendments made to the claim."

21. Counsel representing the Claimant submit that she was successful on the main issues raised for decision. They have particularised eleven separate issues, and submit that the Claimant was unsuccessful only in respect of three of those.
22. Counsel for the University submitted that in respect of some of these issues, whilst the Claimant's submissions may have been preferred, resolution of the issues had little or no bearing on the final result and thus "made no difference." He gave as an example the "fresh decision" point. I reject that submission. Such matters were addressed at the hearing by all sides as matters of substance, and a number of them, such as the fresh decision point, were raised against the Claimant who had to deal with them.
23. Counsel for the Defendant does not dispute the proposition that costs normally follow the event, but submits that in the circumstances of this case the court should exercise its discretion to depart from the general rule. A passage relied upon by the Claimant in the judgment of Jackson LJ (in the Court of Appeal) in Fox, at paragraph 62, counsel submits, was made, as is clear from paragraph 48, in the context of a personal injury claim in which,

" ..... the fact that the Claimant has won on some issues and lost on other issues along the way is not normally a reason for depriving the Claimant of part of his costs."

Jackson LJ went on to say at paragraph 49 that,

"[i]n other cases ..... the fact that the successful party has failed on certain issues may constitute a good reason for modifying the costs order in his favour. This is commonly achieved by awarding the successful party a specified proportion of its costs. In the case of Widlake v British Airports Authority [2009] EWCA Civ 1256 where the fact were so extreme that the successful party was ordered to bear all of its own costs."

24. Counsel submits that it may well be the case that a successful party is unlikely to succeed on every issue but this is a case in which those acting for the Claimant behaved in what she described as a wholly unreasonable fashion, and thus brought the provisions of CPR 44.2 (4) (a) into play. A number of specific criticisms were made of those acting for the Claimant in respect of the pre-action protocol, in terms of its structure and substance. Counsel pointed out that attention is specifically drawn to the relevance of this by CPR Part 44.2 (5) (a). In M v Croydon the Court of Appeal stated (paragraph 45) that while,

"[t]he general rule in all civil litigation is that a successful party can look to the unsuccessful party for his costs ..... the fact that the successful party lost on, or abandoned, an issue, will often involved his being deprived of some, or even all, of his costs (and in an extreme case he may even have to pay some of the unsuccessful party's costs): CPR 44.3 (4) (b). Further, the parties' conduct is a relevant matter as CPR 44.3 (4) (a) provides, so that failure to adhere to the provisions of any relevant protocol may well affect any decision the court makes on costs."

25. Any assertion that the focus of the costs decision should be concentrated on the hearing is not accepted by counsel for the Defendant. This is a case (she submits) in which, by reason of the Claimant's approach, very significant costs were incurred long before the hearing. Many (or at least a significant number) of those cost-related claims were ultimately unsuccessful, whether or not they were explored at length at the hearing. Further, the suggestion made by counsel for the Claimant that the length of time occupied by the Claimant's various complaints can be calculated by reference to the number of paragraphs in the judgment devoted to it -- as to some extent is made in the Claimant's reply document on costs -- is, submits counsel for the Defendant, entirely spurious. In any event, the suggestion that costs of the hearing should reflect what argument took up most the hearing time (particularly, she submits, in circumstances in which a disproportionate amount of that time was absorbed by counsel for the Claimant) would encourage a filibuster approach to advocacy. Finally, as regards the submissions made by the Claimant in this respect on costs, it is entirely artificial to divide her claim into "issues" which are sub-categories of grounds which serve only to inflate the extent of the Claimant's success as a proportion of the total.
26. It is submitted that the Defendant's analysis of the extent to which the Claimant succeeded in her claim -- that is to say less than half -- is to be preferred, and it shows that, whether an issue-by-issue approach is taken, or the matter is looked at globally, the Claimant cannot be regarded as having succeeded to any greater extent. Refusal to make an order in this case for costs in the Claimant's favour would amount, she submits, to no more than an application of the principle set out in the Civil Procedure Rules as explained by the Court of Appeal in Fox and M.
27. The University make the point that there is authority -- R (Rosen) v Solicitors Disciplinary Tribunal [2002] All ER (D) 116 (June) Sullivan J -- that where an interested party can demonstrate that it is entitled to come to court to argue its position, and where it succeeded to some extent on the issues taken by it, it will not be appropriate to make a costs order against it, even it if took an active role in defending a claim unsuccessfully.
28. Leading counsel for the Claimant accepts that the general rule is that the interested party will not be ordered to pay the costs of a successful Claimant. However, he submits that it appears to be common ground that thee are exceptions to that general rule. The issue for the court is whether the circumstances of this case justify such an exception being made. If the Defendant and an interested party (counsel submits) pursue the same unsuccessful issue it is accepted that the usual rule will be that the Defendant alone will pay the costs. But the circumstances may justify an order against the interested party if, for example, the interested party made most of the running (see R (Munjaz) v Mersey Care National Health Service [2003] EWCA Civ 1036).
29. Counsel submits that although his case is that the Defendant should pay all of the Claimant's costs, the court does have the option in the exercise of its discretion to make an order that the Claimant should be awarded all of her costs to be paid by the Defendant and the First Interested Party in such proportions as the court deems appropriate. The factors here that may be relevant for any determination as to whether the circumstances justify making a costs order against the University as an exception to the general rule, Mr Newton QC submitted, included the following matters.

(a) There was effectively a finding that the University had unarguably breached its rules of procedure in not inviting Dr Clarke to the Termination of Course Review Panel hearing ("TCRP hearing"). Counsel set out the paragraph numbers in the judgment where reference is made to that.

(b) There was clear evidence of procedural errors made both by the Academic Progress Committee ("APC") and the TCRP in respect of "failure to take into account year 1 mitigation".

(c) The University, in actively supporting the Defendant, had adduced evidence (the witness statements of Professor Petersen and Professor White) in respect of the APC and TCRP hearings which was rejected by the court where it conflicted with the evidence of the Claimant and Dr Hales. Further, the University's submissions based on the evidence of Professor Petersen in respect of a supposed hair-splitting difference between the phrase "had led" and the phrase "may have led" were rejected. Yet that point had been argued with some persistence at the hearing.

(d) Further, submits counsel, it was noted in the judgment that although the University saw fit to adduce a witness statement of Professor White after the close of the evidence to deal with "the rubber-stamp point" and Dr Nandakumar's letter, that evidence did not say what weight, if any, the TCRP had given to Dr Nandakumar's letter and no reason was given for the absence of any concern and its inconsistency with the view of the APC.

(e) The University has not given any explanation of the TCRP's failure to consider Dr Clarke's absence. The Defendant had particularly raised this question with the University in its letter of 9 August 2012 as a matter which was causing concern to the Defendant. Yet, the University ignored that question (see the letter of 22 August 2012).

(f) The University was responsible for the error of fact (stating that Dr Clarke's letter had been before the TCRP and had been considered by the TCRP.)

(g) The University did not disclose the email exchange between the Claimant and itself whereby the Claimant requested that Dr Clarke's letter be put before the TCRP and the University refused on the ground that it was too late. It had given no explanation for that failure.

(h) If the University had not been responsible for the error of fact, the Defendant's conclusion in respect of the absence of Dr Clarke may have been different. The same point may be made in respect of the University's failure to disclose the relevant email exchange.

(i) It is clear, submits counsel, that because of the University's breaches of procedure, the Claimant's case all along did fall within even the narrowest interpretation of Mr Seisage's definition of exceptional circumstances and the University should therefore have re-opened the Claimant's case without the necessity for litigation. (It is to be emphasised that counsel there is referring to it being an exceptional case by reason of breaches of procedure, not an exceptional case by reason of the medical evidence.)

30. Other points relating to the University which were made in the judgment included:

(i) the fact that the University sought to rely on alleged poor attendances by the Claimant and then abandoned the point;

(ii) the University provided no evidence in respect of the importance or duties of the personal tutor and that evidence was left to be adduced by the Claimant, and

(iii) the University did not explain why the Claimant had no personal tutor for most of her second year, again a point which the Defendant had raised as a matter of its real concern with the University long before the hearing.

31. The University's submission that the Claimant should be regarded as more unsuccessful than she was successful, counsel for the Claimant submits, is simply misconceived. That was demonstrated, Mr Newton submitted, by the fact that the Claimant was successful in respect of what he termed the vast majority of issues contested at the hearing. The issues on which the Claimant was unsuccessful occupied comparatively little of the court's time. Moreover the result was the quashing of the Defendant's decision which was the main form of relief that had been sought and which had been resisted throughout.
32. Counsel made reference to the fact that the University repeatedly mentioned the failure of the Claimant on the Equality Act issue without making reference to the fact that in the judgment I made the comment that it occupied little of the court's time. Indeed, counsel points out in the Claimant's skeleton argument for the hearing there were only four lines relating to that issue.
33. In particular however counsel submits that the failure by the University to disclose the email exchange between itself and the Claimant relating to the late arrival of Dr Clarke's letter, in combination with the Defendant's failure to disclose the Hales Reference, had a most important effect on the course of the litigation in general. The impact of the Hales Reference on the Claimant's ground can be seen from the application made to amend as soon as it was received and also from the fact that thereafter that issue became the main focus of the Claimant's claim as it would have done at an earlier stage had it been disclosed by the Defendant. Despite that, the Defendant and the University continued to resist the claim.
34. The fact that the Claimant made points in the pleadings or the pre-action protocol which were not pursued at the final hearing does not mean that those points were without merit and would not have succeeded. In line with the encouragement often given by the court, counsel submits, the Claimant limited the issues which were relied upon. Counsel repeats that the University's failure to disclose the email exchange had the effect of concealing the error of fact and of reducing the significance of the University's failure to invite Dr Clarke to the TCRP hearing, a breach of process which should have resulted in the University re-opening the Claimant's case without the need to resort to any litigation at all.

Conclusion

35. The conclusion which I have reached is that the University played a very active role in defending this claim, and it was unsuccessful in doing so. Had if confined itself to the issue of exceptional circumstances it may very well have been appropriate to have made no order as to costs. However it went much further than that. Whilst it played a secondary role in the hearing and adopted many of the submissions made by the Defendant, that was as much to avoid repetition as anything else. It had ignored its own procedural rules and had caused confusion and misunderstandings which persisted throughout the litigation, and it had taken some unmeritorious points. The submissions made by leading counsel for the Claimant illustrating such aspects of the University's conduct which I have referred to at paragraph 29 (a) to (i) above have real force in my view.
36. The Defendant, for its part, was given the opportunity at the hearing to reconsider its position in the light of the disclosure of the very important error of fact in respect of Dr Clarke. Having taken that opportunity, it chose to fight on. It lost. In my view it must pay some of the costs.
37. There were indeed significant areas in which the Claimant was not successful, in particular the area which affected the other interested parties who were medical students. The issues in the case however are far too intertwined in my view for me to be able, making sensible use of resources of time, to make an issue-by-issue order for costs. Standing back and looking at the case overall, I have decided that the Claimant is entitled to two-thirds of her costs and that the Defendant and the University should contribute to the payment of those costs in equal shares. There should be a detailed assessment of the other interested parties' publicly funded costs.

Order to be drawn up accordingly.