Cause and Effect: costs in public law cases

Alexander Campbell analyses a recent Court of Appeal ruling on costs that has important lessons for local authorities conducting assessments.

“Post hoc, ergo propter hoc”

There is a logical fallacy which is summed up in the latin phrase, “post hoc, ergo propter hoc” (meaning “after this, therefore because of this”). It is committed when a person wrongly assumes that because one event follows another, then it must have been caused by it. Take a simple example: “the rooster crows immediately before sunrise, therefore the rooster crowing must cause the sun to rise”. That example makes it seem like a silly mistake to make – and an easy one to avoid – but the recent Court of Appeal judgment in RL v Croydon LBC [2018] EWCA Civ 726 has reminded lawyers to avoid precisely this mistake when arguing about costs.

Background

RL was a Ghanaian national with three children. One of the children was a British national but the rest of the family had no recourse to public funds.

Faced with eviction from their home, and not being entitled to homelessness assistance because of their immigration status, the family approached Croydon in September 2015 and asked them to undertake a child in need assessment under section 17 of the Children Act 1989. An assessment was commenced on 30 September 2015.

The family were evicted on 15 October and a few days thereafter, lawyers acting for the family sent a letter before action to Croydon challenging “the failure of the Council to provide accommodation…under section 17 of the 1989 Act”. Croydon’s legal department responded, stating that it understood that the assessment would be ready by 22 October.

RL’s lawyers issued judicial review proceedings on 28 October. The child in need assessment was completed on 4 November and it recommended that accommodation be provided to the family whilst they sought to remove their no recourse to public funds restriction.

On 24 November 2015 the High Court, considering the case on the papers, refused permission for judicial review and ordered RL to pay Croydon’s costs. The judge, Mr Justice Garnham, held that Croydon had not made a clear, unambiguous and unqualified promise that its assessment would be completed by 22 October, and therefore had not acted unlawfully by failing to meet that deadline.

RL sought a renewed permission hearing but in January 2016 the parties settled the claim by a consent order, which provided for the claim to be withdrawn because Croydon had by then completed its child in need assessment which had recommended that accommodation be provided – essentially RL felt that she had achieved what she had wanted. The issue of costs was left to be determined on the papers.

The costs decision

Judge Gill (sitting as a Deputy High Court Judge) made no order for costs on the basis that Croydon’s decision to provide accommodation came about not because the claim was issued but rather because they completed their child in need assessment which recommended the provision of accommodation. The fact that the claim was issued was thus irrelevant to Croydon’s decision to provide accommodation. Furthermore Judge Gill held that it could not be said that RL would have won if the claim had proceeded all the way to trial, therefore she should not be entitled to payment of her costs on that basis either.

The Court of Appeal

RL appealed the costs decision to the Court of Appeal, however the Court of Appeal upheld the High Court’s decision to make no order for costs.

Lord Justice Moylan agreed with Judge Gill that the provision of accommodation by Croydon was a result of the child in need assessment which was completed, not a result of the judicial review claim being issued. RL therefore could not say that her claim had been vindicated such that she should be entitled to her costs.

The Court of Appeal stressed that section 17 of the Children Act 1989 does not give a child a legal right to be provided with accommodation. In that respect, RL’s judicial review claim – arguing that her children had a right to be accommodated – was misconceived. For Lord Justice Underhill, the real issue in the claim was how quickly the child in need assessment was to be completed. For Lord Justice Underhill, RL could be said to have succeeded in her claim if her issuing the claim had resulted in the assessment being completed substantially sooner than it otherwise would have been. Since there was no reason for saying that was the case, RL could not be said to have succeeded. Moreover, Lord Justice Underhill agreed with the High Court that Croydon had not been legally obliged to meet their anticipated completion date of 22 October 2015, so the fact that the assessment took another couple of weeks to finish was not unlawful, particularly given the financial pressures facing children’s services departments today.

Lessons for lawyers

When it comes to deciding what costs order to make after judicial review proceedings have settled, a lawyer’s first stop should be the case of M v Croydon LBC [2012] EWCA Civ 595, where the Court of Appeal distinguished between cases where the claimant has been wholly successful (and therefore should get their costs), where they have been partly successful, or where the settlement does not actually reflect the claimant’s original aims (in which there is a strong argument for no order as to costs).

The circumstances in RL v Croydon are not uncommon for local authorities: proceedings are issued because an assessment is taking time to complete, with the assessment then resulting in the claimant being granted the support that they were seeking all along. It can be easy for hard-pressed and busy local authority lawyers to be seduced into thinking that in such cases, the claimant has succeeded and should recover their costs. The Court of Appeal’s decision serves as a reminder to local government lawyers to scrutinise closely the precise factual circumstances when a claim settles. Local authorities should bear in mind that the fact that the claimant has obtained what they were originally asking for does not mean that they have been “successful” in their claim. The crucial question is not whether the claimant has obtained the relief they wanted, but why. If the true reason for the claimant getting what they wanted is a policy decision by the authority rather than the authority deciding to concede the claim, then the claimant should have no basis for claiming any costs from the local authority and the local authority can keep its chequebook firmly closed.

Alexander Campbell is a barrister at Field Court Chambers.