Kuzjeva & Anor, R (on the application of) v London Borough Of Southwark

An application for permission to appeal on costs raised an important point of principle: whether a public authority whose inactivity has generated repeated judicial review applications should bear the resulting costs, even though public funds are involved on both sides. Permission should be granted where the proposed issue is sufficiently important and apparent factual disputes do not obscure it. The procedural history may be relevant if it was before the first-instance judge or is otherwise part of the court record, even if it is not recited in the judgment or formal order. Permission was granted, but the substantive costs issue was left for the appeal.

A family of asylum seekers brought successive judicial review applications after the London Borough of Southwark failed to provide accommodation. Their entitlement arose under the 1999 Act, following an unsuccessful initial approach under the Housing Act. On 3 July 2001, Collins J made an order which secured accommodation and directed that costs lie where they fell. The applicants sought permission to appeal on the incidence of costs, relying on a procedural history said to have been before Collins J. The wider issue included the effect on Legal Services Commission funding and on a related damages claim.

1. Permission granted. Sedley LJ held that the application was a proper one for permission to appeal because it raised an important and recurrent point of principle concerning the incidence of costs in judicial review proceedings.
2. The underlying circumstances gave the issue practical significance. The applicants had a legal entitlement to accommodation under the 1999 Act. Southwark’s responsibility was either conceded or had been determined against it, but repeated applications were allegedly required because of persistent inactivity and action only on the eve of hearings. The resulting costs were likely to fall on the Legal Services Commission unless awarded against Southwark.
3. The issue was not necessarily obscured by disputed facts. Permission had initially been refused on paper because factual queries might have affected the point of principle. At the oral hearing, those concerns were sufficiently addressed.
4. The procedural history was material. A statement summarising it was said to have been before Collins J and was accepted as such. Even if it had not been before him, the recorded procedural history was arguably material to the costs decision and something to which the judge should have had regard, whether or not it appeared in the judgment or formal order.
5. The order was that permission to appeal be granted, with the costs of the permission application to be costs in the appeal. The substantive costs issue was not determined.

1. Court of Appeal (Civil Division): Sedley LJ granted permission to appeal and ordered that the costs of the application be costs in the appeal.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: Collins J made an order on 3 July 2001 securing accommodation and directed that costs lie where they fell. No citation for that decision is stated in the judgment.