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Court of Appeal criticises both sides in Blue Badge parking dispute where claimant costs exceeded £60,000

The Court of Appeal has imposed a costs order against a London borough and criticised both sides for the way a dispute over a parking Blue Badge ended up in the courts.

In RS, R (On the Application Of) v London Borough of Brent [2020] EWCA Civ 1711 Lord Justice Green said Richard Whittam QC, sitting as a deputy judge of the High Court, should have awarded costs against Brent when applicant RS eventually gained a blue badge from it.

RS suffers from a debilitating but non-physical condition which makes walking very difficult.

Brent Council refused his application unless he underwent a mobility assessment by an expert.

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RS sought judicial review and Brent later granted the Blue Badge without the mobility assessment.

But Mr Whittam refused to make an order in favour of RS, who argued on appeal that the judge had erred since he had for practical purposes won the case.

Brent though maintained that RS did not win outright and so the judge was correct to treat the outcome as a ‘nil all draw’.

Even were that wrong the council argued there were good policy reasons for not awarding costs, based upon the need not to disincentivise settlement.

Green LJ said Judge Whittam erred by not treating the case as one where a costs order should be made and also by deciding there was a good policy reason why costs should not be awarded.

He said: “In my view, [RS] succeeded in a very real sense in obtaining through the Order, everything that he could realistically have wished for from the judicial review proceedings.”

The judge added: “The nub of the appellant's case was that he wanted a blue badge without having to go through a mobility assessment and by the Order he achieved just that.”

RS did not obtain an award of damages - which arose later when the County Court proceedings were compromised - but won a remittal of his claim for compensation to the County Court.

“In pith and substance this was not a nil all draw; it was a solid win for the appellant,” Green LJ said.

He found there were not policy grounds on which to “strip him of the fruits of his victory” because of the danger cited by Brent that awarding costs could stifle settlements.

“With respect, even standing alone this reasoning is not convincing,” Green LJ said.

“If costs are not awarded litigants might feel compelled to persist in the litigation, rather than settle, upon the basis that it is only at the culmination of the judicial process that costs can be recovered.

“As such, it is not always the case that making no award of costs will encourage settlement; the converse can occur, and this would disincentivise settlement.”

Although there was “considerable force” in the idea that the Court of Appeal should be slow to overturn a decision of a costs judge, Green LJ said this case had involved a legal point and Judge Whittam had wrongly categorised the claim.

Turning to the case as a whole, Green LJ said it showed “a sorry episode on almost every score”.

He explained: “I have read the court file which records the manner in which the appellant's solicitors aggressively expanded their battle against the authority with distracting and personalised complaints about public officials to the SRA and to the Information Commissioner.

“The correspondence does not make pretty reading involving as it does a number of unfortunate allegations, some of which were addressed in the pleadings before the High Court.”

He said Brent made an error of law but did not act in bad faith but rather because of “a misconstruction, shared by other authorities, of legislation which has been acknowledged by Government as being less than pellucidly clear”.

Green LJ said RS’s costs exceeded £60,000 and there was “at least a possibility that the aggression evidenced in correspondence, and the resultant strain placed on relations between the parties, added to the costs incurred”.

He said the case had been “precisely the sort of dispute which should have been sorted out without litigation which amounts to a drain on the strained financial and human resources of the authority”.

"Had this matter proceeded to a hearing and had the authority then lost it could have faced a costs bill approaching £100,000. On the other side of the coin, disputes of this nature expose individuals in difficult social and economic circumstances to potentially disastrous litigation risk," the Court of Appeal judge said.

"For both sides, this sort of litigation should be avoided. It is apparent that the decision taken by the Respondent was subject to internal re-review by a person unconnected to the case. This was however unsuccessful and did not lead to the decision being rescinded prior to litigation."

Lord Justice Green added: "The increasingly common process of administrative re-review is desirable. It allows administrative decisions to be internally reassessed by a fresh and independent set of eyes, in particular eyes not blinkered by the potentially strained nature of the relationship between the parties. Experience in both central and local Government indicates that where internal review is sufficiently rigorous and robust it can markedly reduce the number and incidence of disputes and consequential appeals. The authority might wish to consider why it did not succeed in this case. Had it worked it could have saved a good deal of time and public money and resource."

Mark Smulian

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