Reiner, R (on the application of) v London Borough Of Hackney

On withdrawal of judicial review proceedings, the court retains power to determine costs even where the substantive issues have not been tried. The court should apply the overriding objective and do justice between the parties without unnecessary further expense. It may examine the unresolved substantive issues to the extent appropriate, but where it cannot fairly identify a successful party, the usual fallback is no order as to costs. A judge’s assessment of success and exercise of discretion will not be disturbed on appeal unless the judge misdirected himself, failed to consider relevant factors, or reached a perverse conclusion.

The applicant challenged the London Borough of Hackney’s failure to determine his housing benefit claim. Following a renewed application for permission to apply for judicial review, the council undertook to reconsider the claim in light of further information. It subsequently refused the claim, making the judicial review proceedings pointless.

The applicant sought his costs, arguing that the proceedings had compelled the council to make a decision. Burton J rejected that submission and ordered no order as to costs. Permission to appeal was refused on paper by Latham LJ, and the applicant renewed his application before the Court of Appeal. The central issue was whether the judge had properly exercised his discretion on costs.

1. Renewed application refused. The applicant had not succeeded in any legally relevant sense. The council’s decision followed the provision of further information, the applicant did not obtain a favourable decision, and the proceedings did not establish that the council had been compelled to act unlawfully or prematurely.
2. The guidelines in Brawley v Marczynski [2002] EWCA 756 applied. The court has power to make a costs order after substantive proceedings have ended without trial. Legal aid is ordinarily irrelevant. The overriding objective is to do justice without unnecessary court time and additional cost. The extent to which the court examines unresolved substantive issues depends on the circumstances. In the absence of good reason for another order, no order as to costs is the fallback position. The court must also avoid discouraging sensible settlements of judicial review proceedings.
3. Burton J had considered the history of the benefit application and the relevant factors. His conclusion that the applicant had not succeeded was open to him, and his decision to make no order as to costs was a proper exercise of discretion.
4. There was no prospect of appellate interference. Latham LJ’s view that the judge had not misdirected himself and that his approach was not perverse was correct.

• High Court, Queen’s Bench Division, Administrative Court: Burton J ordered no order as to costs following withdrawal of the judicial review claim.
• Court of Appeal (Civil Division): Permission to appeal was refused on paper by Latham LJ. The renewed application was refused by Tuckey LJ.