England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 June 2017

Mr Justice Jeremy Baker:

1. Following the judgment I handed down in this case on 31^st May 2017, I am now asked to determine the issue of costs.
2. Although these are public law proceedings, they remain subject to the CPR. As Lord Neuberger MR pointed out in M v Croydon LBC [2012] EWCA Civ 595,

"…..a successful claimant who has brought a claim is just as much entitled to his costs as he would be if it had been a private law claim. The court's duty to protect individuals from being wronged by the state, whether national or local government, is every bit as vital as its duty to enable them to vindicate their private law rights. And the fact that the defendants are public bodies should make no difference."

3. The parties have provided written submissions on this issue. The claimant submits that as the successful party, she should be entitled to an order that the defendant pays her costs in full. Whilst the defendant submits that as the claimant failed to succeed on two out of her three grounds, it should be entitled to its costs, or at most no order for costs should be made between the parties.
4. CPR44.2 sets out the court's discretion as to costs:

CPR44.2(2) provides that if the court decides to make an order about costs,

"(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) the court may make a different order."

CPR44.2(4) provides that,

"In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –

(a) the conduct of the parties;

(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

(c) 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."

CPR44.2(5) provides that,

"The conduct of the parties includes –

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

(b) whether it was unreasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and

(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim."

5. It is clearly necessary, at an early stage, to determine which of the parties is the successful one. The approach to this issue has been helpfully summarised by Gloster J (as she then was) in HLB Kidsons (a firm) v Lloyd's Underwriters (Costs) [2007] EWHC 2699, such that not only must the litigation as a whole be taken into account, but the issue should be determined in a common-sense manner. Moreover, at paragraph 11, it was pointed out that,

"There is no automatic rule requiring reduction of a successful party's costs if he loses on one or more issues. In any litigation, especially complex litigation such as the present case, any winning party is likely to fail on one or more issues in the case. As Simon Brown LJ said in Budgen v Andrew Gardener Partnership [2002] EWCA Civ 1125 at para 35: 'the court can properly have regard to the fact that in almost every case even the winner is likely to fail on some issues'. Likewise in Travellers' Casualty (supra), Clarke J said at para 12:

'If the successful claimant has lost out on a number of issues it may be inappropriate to make separate orders for costs in respect of issues upon which he has failed, unless the points were unreasonably taken. It is a fortunate who wins on every point.'"

6. In the present case, I consider that the claimant should be considered to be the successful party, in that not only has she succeeded in obtaining a declaration that the defendant's practice of making direct offers of accommodation under its housing allocation scheme, (otherwise than pursuant to the discretionary power of the Director of Housing Needs and Strategy), is unlawful and in breach of its duty under section 166A(1) of the Housing Act 1996 to allocate social housing in accordance with its published allocation scheme, but in particular she has succeeded in obtaining an order quashing the defendant's review decision contained in its letter dated 24^th November 2016, such that the defendant will be obliged to reconsider the claimant's application for social housing to determine whether to make her a direct offer of accommodation under the housing allocation scheme, and if not to provide sufficient reasons for its decision.
7. On the other hand, the basis upon which she succeeded in obtaining this relief was only on one of three grounds which she pursued to trial, and she was unsuccessful on the other two grounds, namely those relating to her entitlement to welfare points, and the lawfulness of the local lettings policy. Moreover, the ground upon which she succeeded, namely the lawfulness of the defendant's practice of making direct offers under the housing allocation scheme was only raised shortly before trial, namely on 31^st January 2017.
8. However, although I consider it likely, having regard to the history of this and other litigation pursued by those instructed by the claimant against the defendant, that the claimant would have pursued these other two grounds to trial in any event, it is apparent that the reason why the ground relating to direct offers was only raised shortly before the trial, was that this practice had only been revealed by the defendant on 26^th January 2017. Moreover, not only was the defendant's practice unascertainable by the claimant until the disclosure made by the defendant in the witness statement of Karen Lucas of the same date, but it was only during the course of the trial itself, on 2/3^rd February 2017, that it was revealed, on behalf of the defendant, that this practice extended to those who had only been awarded 100 points under the allocation scheme, rather than the minimum threshold of 140 points required by those who were thereby entitled to bid for housing under the choice based lettings scheme.
9. Just as the manner in which the defendant's practice of making direct offers under the scheme, (otherwise than pursuant to the discretionary power of the Director of Housing Needs and Strategy), ought to have been ascertainable from the scheme itself, the defendant's practice ought to have been disclosed at an earlier stage of the litigation. If it had been, then I have no doubt it would have been a ground relied upon by the claimant, albeit, as I have said, that the other two grounds would have been likely to have been pursued in any event.
10. In these circumstances, having determined that the claimant is the successful party in this case, the appropriate starting point for the issue of costs is the general rule provided for by CPR44.2(a). However, given the considerable amount of resources devoted to the other two issues upon which the claimant did not succeed, I consider that some balance is required to reflect these matters.
11. In this regard, the type of orders which the court may make, are set out in CPR44.2(6), namely,

"(a) a proportion of another party's costs;

(b) a stated amount in respect of another party's costs;

(c) costs from or until a certain date only;

(d) costs incurred before proceedings have begun;

(e) costs relating to particular steps taken in the proceedings;

(f) costs relating only to a distinct part of the proceedings; and

(g) interest on costs form or until a certain date, including a date before judgment."

Moreover, CPR44.2(7) makes it clear that before the court considers making an order under CPR44.2(6)(f), it should consider whether, instead, it is practicable to make an order under CPR44.2(6)(a) or (c).

12. Taking these matters into account, I consider that it is appropriate for the court to make a different order under CPR44.2(2)(b), and although it would be possible to make an order under CPR.2(6)(f), it is both practicable and preferable to make an order under CPR44.2(6)(a). As I have already observed, considerable resources were devoted to the other two issues upon which the claimant did not succeed, such that although I consider that the claimant is entitled to the majority of her costs, a significant reduction ought to be made from them. Therefore, the order which I propose to make is that the defendant shall pay 60% of the claimant's costs of her claim, to be the subject of detailed assessment if not agreed.
13. Finally, CPR44.2(8) provides that,

"Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so."

14. There is no good reason why the defendant should not pay a reasonable sum on account of costs, which I determine in this case is £30,000.00. Therefore, there will be an order that the defendant shall within 21 days hereof pay this sum (inclusive of Value Added Tax) to the claimant as a payment on account of her costs.