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Court of Appeal upholds no order for costs decision in housing case where claimant withdrew proceedings after being given new accommodation

A judge was entitled to conclude that the appropriate course was to make no order for costs in a housing case where legal proceedings were withdrawn because the claimant had obtained all the relief she was seeking, the Court of Appeal has found.

Steven Kovats QC, sitting as a Deputy High Court Judge, had ruled that it was impossible, without conducting a full trial of the claim, to determine whether there was any causal connection between the claim for judicial review and the offer of accommodation made to and accepted by the appellant shortly before the claim was due to be heard.

The appellant submitted that this represented a failure to apply the guidance in M v Croydon London Borough Council [2012] EWCA Civ 595, [2012] 1 WLR 2607 and that the judge had failed to take account of factors which should have resulted in an award of costs in her favour.

In November 2018 the appellant had issued judicial review proceedings, contending that Redbridge Council had breached both the duty owed to her under s.189A of the Housing Act 1996 to produce a lawful Personal Housing Plan (PHP) – because, she said, the PHP initially provided had included no assessment of her housing needs – and the duty to provide suitable accommodation.

She sought (1) a mandatory order requiring the council to secure suitable accommodation for herself and her daughters, (2) a declaration that the accommodation provided for her was not suitable for a family of seven, and (3) a declaration that the council had failed adequately or at all to comply with its duty to prepare a lawful PHP.

The hearing of the substantive claim for judicial review had been listed for 5 March 2019.

The appellant continued to argue that the accommodation provided (a mixed-sex family hostel) was unsuitable and that self-contained accommodation was required.

The council accepted that the accommodation provided was not ideal, but contended that in the context of a severe housing shortage and benefit restrictions, its determination that the accommodation provided in a family hostel was suitable as temporary accommodation was not irrational. The council contended also that the County Court was the appropriate forum in which to argue about the suitability of the accommodation, rather than the claim for judicial review.

In the meanwhile the appellant was provided with updated PHPs from time to time.

On 22 February 2019 Redbridge offered to rehouse the appellant in self-contained accommodation. She accepted that offer on 28 February. An updated PHP provided on 27 February indicated that this was the result of the council being provided with a doctor’s report: "Given this new medical information we sourced alternative self-contained accommodation for you and made you an offer on 22/2/19."

There were discussions between the parties as to the terms on which the proceedings might be compromised, but they were unable to agree about costs. In the course of that correspondence the council's legal department said the offer had been made because by 22 February the appellant: "had reached the top of the queue and was next in line for a property. We considered that to be suitable accommodation, taking into account the most recent medical evidence that was presented."

Eventually it was agreed that the appellant would withdraw the claim for judicial review with neither party accepting the other's position on the merits and with liability for costs to be determined by the court on the basis of written submissions.

Judge Steven Kovats QC subsequently made his ruling that that this was a case in which, in his judgment, the appropriate order was no order for costs.

In Parveen, R (on the application of) v London Borough of Redbridge [2020] EWCA Civ 194 Lord Justice Males, with whom Lady Justice Nicola Davies and Lord Justice Underhill agreed, said the fact that a claimant had obtained the relief which he or she was seeking in the proceedings did not necessarily mean that the existence of the proceedings had caused or contributed to that result. “It may be that it would have happened anyway. The cases show that causation is a relevant and sometimes decisive factor in the exercise of the court's discretion concerning costs.”

He added that the case of RL v Croydon London Borough Council [2018] EWCA Civ 726, [2019] 1 WLR 224  made two important points:

  1. Success might consist not only of obtaining the relief which the claimant was seeking, but also of obtaining it earlier than would otherwise have been the case. “In some cases accommodation may be provided because a claimant happens to have reached the head of the queue and would have done so regardless of any legal challenge. In others, however, a local authority may always have accepted a duty to provide suitable accommodation, but the result of legal proceedings may be that it gives greater attention to a claimant's situation than it would otherwise have done and, having done so, gives greater priority to her case. That can fairly be regarded as success, although it is fair to add that priority to one claimant may mean a longer wait for another.”
  2. Investigation of such matters must be kept within reasonable and proportionate bounds. “In this connection it is necessary to bear in mind the summary nature of determination of liability for costs when claims for judicial review are settled but the parties are unable to agree upon costs.” In circumstances such as the Parveen case, where liability for costs was to be determined on paper after a claim had been withdrawn because the claimant had obtained substantially all of the relief sought (here, an offer of alternative accommodation), it was important that the investigation of such liability should not become disproportionate.

He added that a judge determining liability for costs was entitled to express his reasons shortly and an appellate court should not interfere with his decision unless it was clear that he had gone wrong. “Judges dealing with such paper applications will have many cases to consider on any given day. For rulings to become too elaborate or formulaic in an attempt to make them appeal-proof would be contrary to the interests of justice.”

Turning to the case before the Court of Appeal, Lord Justice Males found amongst other things that:

  • In a case where a claim is withdrawn leaving costs to be determined by the court, there is no rule, even as a starting point or default position, that the claimant should pay the defendant's costs. “Rather, liability for costs should be determined in accordance with the guidance (which emphasises the discretionary and fact-specific nature of the exercise) set out in M v Croydon and the further cases referred to above. What matters is the substance of the matter. Here the claim had become academic, neither party accepted the position of the other, and this was expressly recorded in the terms of the order, as was the fact that liability for costs was to be determined by the court.”
  • The first question of substance was therefore to determine which party was the successful party. Males LJ said he saw no reason to suppose that the judge overlooked the guidance in M v Croydon on which the parties had made detailed written submissions. “Rather it appears that he acknowledged that the appellant had obtained what she sought and went straight to what he regarded as the decisive question in the case so far as costs were concerned, that is to say the issue of causation. I see nothing wrong with that approach. Indeed the issue of causation would only arise on the footing that the appellant had obtained at least much of what she sought, so it is necessarily implicit in the judge's reasons that he accepted the appellant's case on this question. It cannot be a valid ground of complaint by the appellant that the judge did not set this out expressly.”
  • Whether there was a causal link between the bringing of the claim and the obtaining of relief (including not only the offer of self-contained accommodation but also its timing) was “plainly a highly relevant consideration”. In this case, having considered the forceful submissions made by each party, the judge concluded that it was not possible to say what if any causal connection there was between the claim for judicial review and the offer and acceptance of the appellant's current accommodation.
  • The treatment which the Court of Appeal had received – detailed written submissions, counsel’s oral submissions over a half day hearing – bore little resemblance to the summary exercise which the judge was required to undertake.
  • On the basis of the submissions made to the judge, which had been limited and consisted of little more than assertion and counter assertion, it was not possible for the Court of Appeal to say that his conclusion in this case was not open to him. “Some judges might perhaps have regarded the timing of the offer as telling, coming as it did only a short while before the hearing of the judicial review claim, and might have been sceptical about the speed with which the appellant had apparently reached the head of the queue when the average delay had previously been stated to be of the order of something more than six months. But it is impossible to say that the judge was not entitled to conclude that the position was not clear.”
  • Nor, Lord Justice Males said, was he persuaded, “to the extent if at all that it is relevant”, that the position was much clearer in the light of the more detailed analysis of the evidence undertaken in the Court of Appeal. “The position appears to be that although the appellant's solicitors were asserting that the appellant needed self-contained or single-sex accommodation from the outset, the council had indicated that it would need medical evidence to support that assertion, which was only provided in Dr Walsh's report. Once it was provided, the council did accept that the appellant urgently needed self-contained accommodation, acted promptly to source this, and succeeded in doing so. The council's request for that evidence was independent of the judicial review claim and was part of its ongoing review of the appellant's housing needs. Although the appellant's solicitors appear to have played a part in obtaining the medical report, it is at least open to question whether in these circumstances the offer of accommodation made following its receipt should be regarded as having been caused by the claim for judicial review.” At all events, Males LJ was not persuaded that the judge would have reached a different conclusion if these matters had been gone into before him, “or that we should do so now”.
  • He accepted counsel for Redbridge’s submission that (at any rate until the medical report was provided after which the council acted promptly) there were arguments to be made on both sides about the suitability, at any rate as short term accommodation, of the hostel rooms initially provided to the appellant and her daughters. “While at first sight there was a strong case that (what on one view could be described as) a single room with shared facilities is unsuitable for a mother and her six daughters, it was in reality two rooms separated by a corridor which was only ever intended to be temporary, some of its more glaring defects had been remedied, and for some periods in the past the family had previously been placed in similar hostel accommodation without it appearing that this was intrinsically unacceptable in the short term.” Suitability was a highly fact-specific issue and the question would have been whether the council's position was irrational. In these circumstances the judge was entitled to conclude that it would not have been practicable without going into the matter in more detail than would have been appropriate to say who would have been the successful party if the matter had been fought out.
  • The judge did not expressly address the appellant's complaints about the council's conduct, but these were “makeweights at most”.
  • In all these circumstances Judge Kovats QC was entitled to conclude that the appropriate course was to make no order for costs. “At all events, it is impossible for us to say that this was an exercise of discretion which was not open to him. His decision involved no error of law which would entitle this court to interfere and was neither unjust nor perverse.”
  • Solicitors and counsel undertaking publicly funded work perform an important public service in ensuring access to justice for those faced with homelessness. “The appellant's solicitors in this case demonstrated impressive dedication and commitment on her behalf. However, we must determine this appeal by reference to the principles which I have set out which do not justify overturning the judge's decision.”

The appeal was therefore dismissed.

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