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
		18/05/2018

MR JUSTICE OUSELEY :

1. The substantive litigation in this case ended in a Consent Order dated 2 June 2017, which provided for costs to be dealt with by written submissions. Master Gidden, in a decision dated 28 September 2017, concluded that there should be no order as to costs. The Claimant appeals against that Order, with leave.
2. The principles governing the approach to such an appeal were not at issue. I cannot interfere with the costs order unless satisfied that Master Gidden has either erred in principle or in his approach or has left out of account or taken into account some feature that he should or should not have considered or that his decision is wholly wrong because he has not balanced the various factors fairly in the scale; R(Tesfay) and Others v SSHD [2016] EWCA Civ 415 [13].
3. The way in which the Administrative Court should approach its costs decisions are also summarised in that case in [5 and 9 – 12], particularly in [9] where Lloyd Jones LJ cited the effect of the judgment of Lord Neuberger, with whom Hallet and Stanley Burnton LJJs agreed, in R(M) v Croydon LBC [2012] 1 WLR 2607. I also note [77] where Stanley Burnton LJ said, echoing Lord Neuberger at [47], that it was important that:

"…both the work and costs involved in preparing the parties' submissions on costs and the material the judge is asked to consider are proportionate to the amount at stake. No order for costs will be the default order when the judge cannot without disproportionate expenditure of judicial time, if at all, fairly and sensibly make an order in favour of either party."

Lord Neuberger made the point that the Court was not obliged to resolve a free-standing dispute about costs when invited to do so in a consent order. The parties took the risk that the Court would not be prepared to make any determination other than that there be no order for costs, on the grounds that such an exercise of considering the proper result would be disproportionate. Of course there may be circumstances where no order for costs is made as a result of a consideration of the merits of the costs submissions on either side and was itself the appropriate order. That was the basis for the judgment of Master Gidden in this case.

4. But I refer to the default position in view of the length of time taken up by the parties in seeking a resolution by the Court of the costs issue. This case has involved a considerable examination of how the claim evolved over time and did or did not achieve significant success, whether legally merited or not.

The claim and its evolution

5. The Claimant is a failed asylum seeker, who applied for asylum support under s4 Immigration and Asylum Act 1999, pending his making a fresh claim. He appealed its refusal to the First-tier Tribunal which, on 7 September 2016, allowed his appeal, so as to avoid a breach of Article 3 ECHR, and noting significant concerns about his mental health.
6. The Claimant was represented, but only at the appeal hearing itself, by the Asylum Support Appeals Project, ASAP, and he had an interpreter. After the hearing he was told that his appeal was successful and, though now without an interpreter, the Claimant, whose English was limited, was informed by ASAP that he would be given emergency accommodation that day if he asked for it. The Claimant understood this but made no request for such accommodation. Emergency accommodation is a form of accommodation pending the allocation of an asylum seeker to accommodation used over longer periods in the fulfilment of the section 4 duties. This is sometimes called "dispersal" or "longer-term" or "general" section 4 accommodation.
7. Master Gidden accepted that the Claimant appeared to have succeeded on the face of the Consent Order, but concluded that there should be no order for costs because, until 11 April 2017, the fact that he had understood that he could ask for emergency accommodation but had not done so, was not known to the Defendant. Indeed the Claim Form was not consistent with the facts. To Master Gidden, this cast the claim in a different light and meant that he had to look beyond the Claimant's apparent success, in order to reach a fair decision. He thought it necessary to avoid penalising the Defendant who had already made a number of concessions to resolve the claim, which he thought "ought not to have been presented as it was and conceivably ought not to have troubled the Court at all".
8. Ms Knights QC for the Claimant raised many issues but in the upshot two essential questions emerged in my judgment. First, should the Claimant receive his costs up to a draft Consent Order dated 9 February 2017, proffered by the Defendant offering to settle the claim which included the Claimant's costs to date, and if so, to what extent, if any, should a deduction be made on account of the erroneous statement in the claim about emergency accommodation? Second, as the Claimant had rejected that offer, did the Claimant achieve anything further in the claim, as thereafter amended, and settled in the Consent Order of 2 June 2017 and if so, how should that be reflected in a costs order in the light of claims which did lead to no relief?
9. Ms Knights submitted that the Claimant should receive all of his costs, although on 9 May 2017 his solicitors had stated that he would agree to an order for all of his costs up to 9 February 2017 and 75 percent thereafter. Ms Knights said that she would be content with the latter though preferring the former. Ms Knights contended that Master Gidden should have made no deduction at all, let alone ordered no costs at all, on account of the erroneous emergency accommodation point, which she submitted had no real significance for the individual case as put and as succeeded in by reference to the Consent Order. Second, she submitted that Master Gidden had ignored the wider issues, affecting other asylum seekers seeking s4 accommodation, in the Defendant's delays in providing s4 accommodation generally, and in respect of emergency accommodation, in both of which the Claimant had succeeded in relation to important general points. She also submitted that Master Gidden had paid but cursory attention to a number of facts, including the Claimant's mental health problems and poor English and the explanation for what she termed the emergency accommodation "discrepancy".
10. Mr Cornwell for the Defendant submitted that there should be no order as to costs, and that Master Gidden was right, not wrong, in his decision. Costs judgments were not expected to cover every point. Master Gidden was correct in his appraisal of the significance of the erroneous factual statements about emergency accommodation, and about the way in which the Defendant had approached settling the action. The Claimant had achieved nothing of significance after 9 February 2017, and there should be a very significant deduction from the earlier costs in respect of the error about emergency accommodation, all properly reflected in the decision that there be no order as to costs.
11. I turn to the course of the litigation. As I have said, it was on 7 September 2016 that the Claimant's appeal was allowed by the FtT. However, by 5 October 2016, notwithstanding a pre-action protocol letter, no s4 accommodation had been provided and the Claimant was living on the streets, or in mosques or other shelters. On 5 October 2016 Deighton Pierce Glynn, DPG, now acting for the Claimant, began proceedings on his behalf challenging the "Defendant's ongoing failure to provide accommodation and support to a destitute asylum seeker entitled under s4 of the Immigration and Asylum Act 1999". The claim form said that the grounds had been drafted on an emergency basis, and it might be necessary to amend them and serve additional evidence, because of the urgent nature of the relief sought. Ms Knights referred to this more than once as excusing the error. The introduction stated that over a month had elapsed since the FtT decision and:

"the Defendant has failed to offer emergency accommodation, provide any other accommodation or contact the Claimant and provide a date on which accommodation will be available.

Later at [33] the submissions stated that it appeared to be accepted in principle by the Defendant that the obligation to provide accommodation had to be satisfied forthwith, as there had been an earlier concession in respect of s4 appeals and the provision of emergency accommodation immediately following the hearing.

"[34] In the present case it is not clear why such emergency accommodation was not offered to the Claimant, who instead continues to walk the streets in search of accommodation at night…"

12. The relief sought in the claim form was:

"(1) Provision of adequate single section 4 accommodation in London forthwith;

(2) A declaration that the failure to provide such accommodation immediately following the decision of the FTT was unlawful and in breach of his rights under Article 3 and 8 ECHR;

(3) A declaration that the Defendant has breached policy in respect of offering emergency accommodation in London immediately post a successful appeal;

(4) A declaration that the failure to provide such accommodation immediately following the decision of the FTT was in breach of the Defendant's duty under s149 Equality Act 2010("EA 2010");

(5) A declaration that the failure to publish policy with a clearly set out time frame for provision of policy is unlawful as giving rise to an unacceptable risk pursuant to Article 3 ECHR;

(6) Damages;

(7) Costs.

(8) Any such other relief as the Court sees fit."

13. The claim form makes no reference to the actual position, as later revealed, in relation to emergency accommodation, asserting at [15] that the Claimant was not offered any accommodation on the day of his hearing.
14. The claim form referred to what it called "the wider picture". This identified problems of delay in providing accommodation once an appeal had been successful. It referred to evidence from ASAP, with a witness statement, that these delays had been a concern for many years and the average waiting time for accommodation following a successful appeal was 18 days with an over-complicated booking process; even those who were street homeless faced an average 14 days wait. This section of the Claim Form then referred to an agreement by the Defendant with ASAP to provide emergency accommodation on the day of the hearing for those who were successful, which filled a gap in protection. But the ASAP report of 2016 stated that extended periods of destitution were still a reality for the majority of people approved for s4 support. There was no emergency option in certain circumstances which do not apply here, and the Home Office had not been prepared to inform s4 appellants in advance that they could enter emergency accommodation if successful. This meant that appellants generally went back to a difficult living situation to wait for more permanent s4 accommodation rather than abandoning their possessions, access to advice, family and friends without notice.
15. The first ground upon which an error of law by the Secretary of State for the Home Department was alleged was unlawful delay in the provision of accommodation, both longer-term and emergency. Ground 2 related to a breach of the policy to offer emergency accommodation; it was unclear why emergency accommodation was not offered. Ground 3 was that s149 Equality Act 2010 was breached because the Claimant was disabled through depression, and the Defendant ought to have ensured that he was informed of the availability of emergency accommodation and provided with final suitable accommodation within a very short time thereafter. Ground 4 alleged this case to be an example of a larger number of cases in which significant delays occurred in providing accommodation, showing a systemic problem. The grounds suggested that the damages claim be transferred to the Queen's Bench Division in due course. Interim relief was sought for the provision of accommodation. On 6 October 2016 Patterson J made an order for such interim relief. This was provided as required on 10 October 2016. On 20 October 2016 the Government Legal Department, GLD, wrote to DPG saying that it considered that the judicial review was now academic and suggesting that the claim be withdrawn, with costs paid by the Defendant. That was reflected in the Acknowledgment of Service served by the GLD that same day, which contended that permission should be refused unless the claim was settled within 28 days, on the grounds that it was academic. That offer was rejected, with reference being made to the array of wider declarations that were sought. The DPG letter referred to the number of other claimants who faced problems of accessing s4 accommodation when entitled to it. The judge considering the application for permission ruled on 2 November 2016 that DPG should explain to the Court whether the claim was to proceed "and if so upon which of the currently pleaded grounds, in the light of the Claimant's acceptance on 10 October 2016 of full-board accommodation".
16. The matter then came before HHJ Walden-Smith sitting as a Judge of the High Court. She granted permission on the basis that the application had not been rendered academic by the offer of accommodation, saying:

"The application highlights a potentially systemic problem of delay which the Court ought to consider."

She specifically referred to the letter from DPG dated 8 November 2016, in response to the Order of 2 November 2016. DPG had not included it in the Claimant's bundle, it was in the Defendant's supplementary bundle. This letter pointed out that the Claimant wanted the "ongoing systemic problem" dealt with, whereas the Defendant contended that it was an individual case, without acknowledging any unlawful delay. It continued:

"The issue of the systemic delay is at the heart of the challenge and is a matter of significant public interest such that it is considered that it would be desirable and appropriate for the Court to provide guidance on this issue with a view to stemming the number of "delay" cases of this type."

The letter confirmed that it was wholly unacceptable that the Defendant had not provided accommodation until an interim order was made, despite having had every opportunity to do so following the FtT determination and the first letter before claim.

17. Following the grant of permission and before filing the detailed grounds of defence, after a number of extensions of time, the Defendant made a further offer on 9 February 2017.
18. On 9 February 2017, the GLD wrote to DPG accepting that there had been "an unreasonable and unlawful delay in providing your client with accommodation" following the FtT decision. It explained the reasons. It said that once the Appellant had succeeded, he would normally have been offered emergency accommodation and the Secretary of State expected organisations such as ASAP to be aware of its availability. "However there is no evidence that the option of emergency accommodation was requested by IC or his ASAP representative nor that such accommodation was offered to IC following the hearing." The letter then set out the detailed process whereby the Claimant was offered accommodation. It identified weaknesses in the process, one of which was that the availability of emergency accommodation "if it was not explained to him at the FtT hearing should have been made clear to IC". The other two weaknesses related to longer term accommodation. This included the fact that he had not been accommodated within 48 hours after a referral on 15 September 2016. The Secretary of State proposed to make changes to the processes and procedures, though none of those related to emergency accommodation. GLD then proposed a consent order declaring that there had been unlawful delay by the Defendant in offering the Claimant accommodation pursuant to s4 IAA 1999. No dates were specified. The application for judicial review would be granted, the claim for damages would be transferred to the Queen's Bench Division and the Defendant would pay the Claimant's reasonable costs up to the date of the intended Order.
19. On 17 February 2017, DPG rejected this offer and proposed four further measures for acceptance to deal with systemic issues, and made two comments in relation to the Claimant's particular position. DPG said that the Claimant should have been informed prior to and at the hearing by the Secretary of State for the Home Department that emergency accommodation would be available in the event of a successful appeal. The accommodation should have been identified with reference to his disabilities and should have continued to be available to him, after the day of the appeal, to enable him to collect his belongings and move. Action should also have been taken following the failure to offer accommodation within 48 hours. DPG then criticised the specific proposals in the letter for dealing with general accommodation, which dealt with monitoring arrangements and reminders in relation to failures, creating what the Defendant saw as an extra layer of oversight in the accommodation booking process. The letter asked that the Secretary of State for the Home Department agree to inform Appellants to the FtT, before and after an appeal, that emergency accommodation would be available, that an arrangement be made to ensure adequate emergency accommodation was offered where what I infer to be longer term accommodation is not offered within the timescale anticipated for such an offer, that accommodation be offered with reference to an individual's disabilities, and that the Secretary of State for the Home Office publish a policy to reflect that agreement, including details of the timescales for the provision of accommodation. This was followed by the filing of the 26 page detailed grounds of defence drafted by Mr Cornwell on 20 March 2017.
20. It was by its first letter dated 11 April 2017 that DPG told GLD that they were writing "to clarify a point". They referred to the practice, set out by the SSHD in the letter of 9 February and repeated in the detailed grounds of defence, where ASAP represent an appellant who is successful before the FtT in obtaining s4 support. He is informed by ASAP that he can request emergency hostel accommodation to be taken up that night. DPG referred to the difficulties with this where the appellant was unaware of this possibility before travelling to the FtT for the hearing. DPG stated that this Claimant had mental health needs which had affected his ability to give clear instructions. "But we have now taken more instructions and he has now confirmed that after the hearing he was informed he could request emergency hostel accommodation on that day." The ASAP witness statement accompanying the claim form was a generic statement and not one directed at IC's circumstances.
21. IC's first witness statement with the claim form said only this about the Tribunal: that he was so pleased when his appeal was allowed "and I understood I would then be provided with accommodation, since then I have not heard further from the Defendants." His second statement of 25 April 2017 said that he understood some English and could get by, although it could add to his confusion. He said "my solicitor has asked me again whether they told me about a place to stay that night." I am not clear when he was asked the first time by the solicitor, but it is likely that it was in connection with his first witness statement. He said, now that he thought back, "I think they told me that I could be offered a hostel that night if I asked for it. I cannot remember much about this, I was a bit confused about the whole process. I didn't ask them to help me get a hostel place, straight away, even though I didn't have a place to go to. I can't say why I did not do this. But they had said I would get a place the next day or the day after that and that the Home Office would call me." Later in it, he said that he did not mention this in his first statement, but he could not remember what he said at that time or why he did not mention it. He had been more or less homeless without regular food for over four weeks, but he was very sorry that he did not mention it. He was more focussed on the delay after the first day or so.
22. This was one of a number of reasons why an application to amend the grounds of claim was made and granted by Holgate J on 3 May 2017. This was opposed by the Defendant. The hearing date was already fixed for 25 May 2017. Holgate J said that it was very unsatisfactory that the factual error about emergency accommodation was not discovered sooner. "How it came to light and why that did not happen sooner should be explained to the trial judge." Although the opposition to the amendment appeared cogent in many respects, he said that he could not go behind the grant of permission which allowed the "systemic" challenge to be made. He was not prepared to say, though the Defendant's submission strongly suggested that a number of the points now sought to be made by the Claimant were weak or had little or no connection with the Claimant, that the points could not be argued at all.
23. The amendments acknowledged that the Claimant had been accommodated but referred to what DPG saw as a wider picture of routine failures in providing accommodation in accordance with the published policy timescale, and what was described as a serious protection gap in the system for providing emergency accommodation. The amendments referred to the terms of the Order of HHJ Walden-Smith, but not to the letter on which it was based.
24. They referred to what it described as "a factual discrepancy" in the Claimant's evidence as to what he was told immediately after the FtT hearing but it is clear that the Grounds, as amended, accepted that he was told about the availability of emergency accommodation, and declined it, apparently on the basis that he thought he would be accommodated in any event within a couple of days. This was said to support the importance of advance notice.
25. The relief sought was then amended. Claim (1) was deleted. Claim (2) now was for a declaration that the policy and arrangements for offering emergency accommodation were a breach of ECHR rights. (Ms Knights accepted that this was a change in the thrust of the declaration, now focussing on emergency accommodation whereas previously Claim (2) had focussed on general accommodation under s4 and not emergency accommodation.) Claim (3) the breach of policy in respect of emergency accommodation was deleted, as was the associated declaration (4) that a failure to provide it immediately breached s149 Equality Act 2010. Claim (5) was for a declaration that the delay in the provision of "dispersal accommodation" breached Article 3 ECHR. Claim (6) was new, a declaration that the current arrangements for ensuring the provision of dispersal (i.e. non-emergency) accommodation were inadequate and gave rise to unacceptable risk of breaching Article 3 ECHR; (this was a systemic challenge of the sort envisaged by HHJ Walden-Smith). Claim (7) was a declaration that a failure to publish policy setting out a timeframe for the provision of dispersal accommodation and "accurate policy in relation to emergency accommodation" was unlawful, because it gave rise to unacceptable risk of breaching of Article 3 ECHR, and finally Claim (8), declarations that those failures breached s149 Equality Act, and were breached in respect of the Claimant. The proposed transfer of the damages claim to the Queen's Bench Division was retained.
26. Ground 1, on unlawful delay in relation to the Claimant, was fleshed out. Ground 2, describing itself as "Unlawful delay: the wider picture", consisted of four new paragraphs taking issue with whether the proposals for change which the Defendant had identified were adequate solutions to the problems. Ground 3 was a considerable elaboration of what it described as breaches in relation to emergency accommodation, part only of which was directed to the prior notification of the possibility of emergency accommodation being offered if the appeal were successful. Other criticisms were made of the emergency accommodation regime, such as that an appellant could not request emergency accommodation on a day after the hearing, if there were delays in providing dispersal accommodation. Where ASAP did not represent an appellant it was not clear how the system worked and there was no clear and accurate published policy. (There was in fact a clear and published policy available, but on a website). The Claimant alleged breaches of human rights in respect of himself and others in relation to emergency accommodation.
27. DPG wrote a second letter dated 11 April 2017, this time without prejudice save as to costs, seeking some form of compromise. It referred to the problem of notifying an appellant, in advance, of the possibility of emergency accommodation were the appeal to be successful. Delays, it said, went on well beyond 48 hours. The Defendant was invited to make a pecuniary offer to compensate the Claimant without needing to transfer the damages claim to the Queen's Bench Division. DPG also wanted to discuss with GLD specific improvements to the policy, including publication of the availability of emergency accommodation in advance, and ensuring that the timescales for the provision of s4 accommodation after the hearing were published, with a robust monitoring system.
28. Discussion continued. Within a very short space of time and an exchange of a couple of emails, it was agreed that £3,000 should be paid by way of damages. This was resolved by 15 May 2017.
29. The Consent Order recited that attached to it was an open letter dated 17 May 2017 written by the Defendant to DPG, "without conceding that there is a legal obligation to take the steps therein." The Defendant agreed to pay £3,000 damages "without any admission of liability" for alleged breach of ECHR rights. The Order then declared that:

"There was unlawful delay by the Defendant in offering the Claimant accommodation pursuant to s4 of the Immigration and Asylum Act 1999 from around 22 September 2016 to 7 October 2016."

On that basis leave to withdraw the claim was given and arrangements were made for written submissions about costs.

30. The attached open letter contains in Part A, a repeat of the monitoring provisions set out in the open letter of 9 February 2017, intended to avoid the problems that arose in this and, it appears in other cases. Part B is the only part that is new in terms of arrangements. The GLD write to confirm:

"that the Secretary of State agrees, in principle, to amend procedures so that appellants who appeal to the First-Tier Tribunal against the refusal of s4 accommodation will be informed in advance of the hearing of the potential availability of emergency accommodation in London if their appeal is successful and they meet relevant criteria. The precise arrangements will be discussed at the meeting to be set up shortly by the Home Office with the interested parties to discuss issues surrounding access to emergency accommodation.

For the avoidance of doubt, the Secretary of State's agreement to take the steps outlined in Part B of this letter is expressly made without any admission that the Secretary of State is under any legal obligation to take such steps."

Conclusions

31. I take first the position as at the rejection of the offer of 9 February 2017 which included the Defendant's offer to pay the Claimant's costs to the date of the Order, made on the implicit assumption that it would be accepted in the reasonable time taken to consider it. I see no reason to differ from what I take to be Master Gidden's approach which was that certainly up to that date the Claimant was entitled, on the face of it, to his costs. Master Gidden only departed from that because of the view he took of the significance of the difference between the position as set out in the claim form and the actual position as it emerged on 11 April 2017, about whether the Claimant had been told about and then had refused to seek emergency accommodation on 7 September 2016. Ms Knights saw the error as excusable because of the urgency, and mental health and language limitations of the Claimant. Mr Cornwell saw a significant factual error which distorted the costs of the claim and would have led to no offer of 9 February 2017 in the terms offered. Master Gidden clearly thought it an important feature of the costs judgment he had to reach.
32. In my judgment, two issues need to be kept separate. First, did this error alter the course of the litigation or increase costs? Second, should any other deduction be made as a form of sanction for the error? It is necessary, dealing with the first point, to recognise that the emergency accommodation issue arose with a wider issue for the Claimant and others as to the speed at which general or dispersal accommodation was provided, regardless of whether there was emergency accommodation or not. Here, the Claimant's error over emergency accommodation would not have affected the need to start proceedings or the grant of interim relief because, even if the correct position on emergency accommodation had been stated, along with his proper expectation of earlier accommodation than had been achieved, the Claimant would still have been entitled to interim relief by 6 October 2016, over one month after the FtT Order, and also entitled to longer term accommodation. That much is actually admitted by the final order. The error could not have affected the consent order offered in February 2017 for that same reason. It could not have affected Part A in the letter attached to the Consent Order of 2 June 2017, because that concerns general or dispersal s4 accommodation. It would not have affected the damages awarded for unlawful delay because they commence in respect of a period beginning on 22 September 2017 and do not relate to emergency accommodation. Nor, as a matter of fact, did it affect Part B in the letter attached to the Order of 2 June, because that was agreed at a time when the Defendant knew the factual position. Moreover, as I read the 8 November 2016 DPG, considered by HHJ Walden-Smith when granting permission, the wider issues focussed much more on longer-term s4 accommodation and the delay in that being made available, rather than on emergency accommodation. Whatever may have been the judicial scepticism about the making of the wider claim, the Claimant succeeded in obtaining a personal and wider relief in relation to delay in the provision of general s4 accommodation. I do not consider that the emergency accommodation error affected the course of the litigation in any material respect.
33. I do consider that it must have increased costs in certain but, in my judgment, very modest respects. DPG had to incur costs in originally setting out the incorrect position and subsequently in checking and correcting the position. But most, or almost all, of those costs would have been incurred if the position were to have been set out correctly in the first place, following a more time-consuming client interview and consideration of the position with ASAP. As Mr Cornwell submitted, DPG ought to have reacted more swiftly in checking the position following the rapid institution of proceedings on 5 October 2016. I attach importance to the comment in the Claim Form that it had been drafted on an emergency basis and amendment might be necessary. The evidence about emergency accommodation should have been checked with ASAP, much earlier and proactively, rather than waiting for the Defendant's responses months later. But had DPG done what it should have done either before commencing litigation, in view of the month the Claimant waited, or shortly thereafter, most or almost all those costs would have been properly recovered from the Defendant.
34. There may be some small costs incurred in drafting the claim form which would not have been incurred had the true position been known, although others might have been incurred redrafting the claim in the light of it, and it would not have disposed of the advance notice issue. I also accept that the Defendant incurred some but, again it appears to me, only very modest costs, in dealing with the position in its correspondence. There were after all no detailed grounds of defence at that stage. The Defendant had not undertaken a great deal of work or investigation to establish the position because its correspondence showed that it was simply setting out the general position as it understood it to be in its 9 February 2017 letter.
35. I would be reluctant to make a deduction on that account, quite apart from the disproportionate time which working out its cost would entail and the possible injustice of a rough and ready figure. I am reinforced in my approach by the fact that, I am making no order as to costs after 9 February 2017. The very minor costs incurred in the brief exchange of emails about quantifying damages and in specifying the precise period of unlawful delay arose after 9 February 2017. They can be regarded as making up for the absence of any costs deduction in relation to the emergency accommodation error. I consider that 15 February 2017 was a reasonable date by which the offer could have been accepted and these other issues resolved. This does not include the costs of the letter rejecting the offer.
36. Master Gidden clearly took the view that the error in relation to emergency accommodation was of such significance that the claim ought not to have been presented as it was and conceivably not at all. I consider that to be a misappreciation of the role in fact played by the error in this case and the success achieved by the Claimant on the individual and wider s4 issues, excluding emergency accommodation. I consider that Master Gidden wrongly judged the impact of the error, such that I should reach my own judgment. He also took into account, as I read his judgment, the notion that some deduction should be made by way of a form of sanction for this error. This is obviously affected by the significance he attached to it, which I do not, for the course and costs of the litigation. This was not simply or largely a case about emergency accommodation or emergency accommodation for the Claimant. Like Master Gidden, however, I did not find the explanation for the error a compelling one, although the error was clearly made in good faith. I also accept the Claimant's apology and explanation of the circumstances in his mind when he made his first witness statement after some four weeks of street homelessness. In view of the emergency action and limited instructions, however, DPG should have gone back earlier to the witness to check the position especially in the light of the known practice that ASAP would tell those it represented of the availability of emergency accommodation to successful appellants at the FtT. If DPG did not know it already, however, the ASAP practice when raised in the Defendant's letter of 9 February 2017 did lead DPG to take the responsible steps of checking the position, informing the Defendant and explaining to the Court how things had happened. I do not consider that this would be an appropriate case for there to be any mark of the Court's displeasure at the factual inaccuracy through the costs order. In so far as this did play a part in Master Gidden's judgment, I do not think it should have done so here. Accordingly, I order the Defendant to pay the Claimant's costs in respect of the claim up to 15 February 2017.
37. The second issue concerns the position following the rejection of the offer of 9 February and therefore costs after 15 February 2017. I have already referred to the insignificance in costs terms of the resolution of the damages claim and the setting of the dates for the unlawful period of delay in providing s4 accommodation. Ms Knights accepted that the only significant gain from the Claimant's perspective was that set out in Part B of the letter attached to the Consent Order of 2 June 2017. She submitted that, in dealing with the long-running debate over advance notice of the availability to successful applicants of emergency accommodation if requested on the day of the successful appeal, those entitled to s4 accommodation, other than this Claimant, had achieved a considerable advance.
38. However, as Mr Cornwell pointed out the litigation was settled with no other relief being granted as claimed in the amended statement of facts and grounds. The first, third and fourth claims from the original claim form had been deleted. No relief was granted in respect of delay in the provision of dispersal accommodation beyond that set out in the 9 February 2017 offer, apart from the precision of the dates, and there is no suggestion that that represented a considerable advance. No relief was granted in respect of the generality of current arrangements for dispersal accommodation or for "accurate policy" in relation to emergency accommodation. No declarations in relation to s149 of the Equality Act 2010 were granted. The second declaration sought, as amended to relate to emergency accommodation, may have included the concern about advance notice, but its language undoubtedly goes considerably wider than that. So at best, the Claimant obtained no declaratory relief at all, and only something related to one part of the second claim, in the form of the statement by the Secretary of State in Part B of the letter.
39. The Claimant simply cannot say that he has been substantially successful on the claim after 9 February at all. Overall he made very little further progress for the costs incurred in drafting amended grounds and preparing the supporting material, however, important to others the gain was. Part B was of negligible importance to the Claimant himself in the light of the events which had transpired. If the case had been pressed on this issue to a hearing, I am also rather doubtful that the Claimant would have succeeded in showing legal error or unlawful systemic risks in the provision of s4 accommodation, in the absence of advance notice of its availability on an emergency basis. I am also very uncertain that the issue would have been viewed as arising in this case involving as it did someone who was not affected any longer by that issue. I note that Holgate J made the order granting permission reluctantly bearing that point in mind, and it is not the wider issue in essence to which HHJ Walden-Smith referred. The Defendant would also have incurred some costs in dealing with the application to amend and subsequently in negotiation on the other issues. Holgate J made no order about costs on the application to amend the claim which he reluctantly granted or on the costs of the Defendant's unsuccessful resistance. They go with the case.
40. I see no reason for the Claimant to obtain the bulk of the costs it incurred and some reason to pay a sum of those incurred by the Defendant. I have decided that the Claimant's very limited further success should not, however, in the light of the considerations above, lead to an order for costs in favour of the Defendant, but it would be unfair overall in relation to the position after 15 February for the Defendant to have to pay costs either. The Claimant failed on all other grounds. So I conclude that the fair decision would be no order as to costs. I also consider that separating the costs either way would be a waste of time and money as would engaging further with the merits.
41. Master Gidden was right to recognise the advantage of a realistic approach to settlement where there could be an improvement in the process, though there was by no means a clear requirement in law for such an improvement in the process to be provided.
42. I have taken a different approach to costs because I consider that Master Gidden erred in his approach to the wider issues and the implications of the error over emergency accommodation, and that has affected his decision in relation to costs overall and in particular costs up to 15 February 2017 after the 9 February offer. My approach, however, has dictated that I consider separately the costs after that date as I have done.
43. Accordingly the appeal is allowed to the extent that the Defendant shall pay the Claimant's costs up to and including 15 February 2017 to be subject to detailed assessment if not agreed, but there shall be no order as to costs thereafter.
44. I hope that the parties can agree the costs of the appeal without further troubling the Court. If not, I shall hear oral submissions on the handing down of the judgment. I am provisionally of the view that the Claimant should receive one half of his costs of the appeal, and costs of those submissions will be determined by who succeeds in changing my mind.