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

When judicial review proceedings are resolved without a trial but costs remain disputed, the court must apply ordinary costs principles. Under section 22 of the Access to Justice Act 1999, a party’s publicly funded status is ordinarily irrelevant.

The court may make a proportionate assessment of the apparent merits, the costs at stake and the parties’ conduct. It should avoid a time-consuming inquiry into merits that have become academic and should not discourage sensible settlement. In the absence of a good reason for another order, the usual fallback is no order as to costs. A costs decision need not await speculative damages proceedings.

The claimants sought judicial review concerning a local authority’s provision of suitable accommodation for an elderly, seriously ill asylum seeker and her family. Interim and adjournment orders were made while possible accommodation was investigated. Costs were reserved on some occasions and ordered in the claimants’ favour at an earlier unopposed hearing.

After a proposed property became unavailable, Collins J again directed the authority to use its best endeavours to provide suitable accommodation within eight weeks and made no order as to costs throughout. The elderly claimant subsequently died and the authority housed the remaining family, so the substantive accommodation dispute ended. An untried damages claim remained.

The claimants appealed the costs order, contending that Collins J had wrongly treated their public funding as decisive. The central issue was what costs order should be made after the judicial review had become academic.

1. Appeal dismissed. The Court exercised the costs discretion afresh because Collins J’s brief reference to public funds could have indicated an impermissible reliance on the claimants’ legal-aid position. Section 22 of the Access to Justice Act 1999 made that status irrelevant to whether costs should be ordered and, if so, in whose favour.

2. The Court endorsed and applied the costs principles distilled in Boxhall. A court retains power to determine costs when judicial review has ended without a substantive trial. Its overriding task is to do justice without unnecessary court time and further expense. It may consider the apparent merits where the outcome would have been obvious, but the permissible depth of inquiry depends on the circumstances, including the costs involved and the parties’ conduct.

3. The court should not turn an academic judicial review into a substantial merits hearing merely to decide costs. It must also avoid rules that deter appropriate concessions or sensible settlement. Where no good reason justifies another order, no order as to costs is the proper fallback.

4. Here, the materials did not permit resolution of the factual disputes about responsibility for the failure to secure accommodation. The possible damages proceedings, and the claimant’s continued immigration position, were too uncertain to justify reserving costs for a future hearing. There was no good reason to order costs for either party. The earlier order by Elias J that the authority pay the costs of the unopposed interim hearing was not questioned.

• Court of Appeal (Civil Division). Dismissed the claimants’ appeal and affirmed the practical result of no order as to the disputed costs: [2002] EWCA Civ 781.
• Administrative Court (Queen’s Bench Division). Collins J, on 3 July 2001, adjourned the accommodation application, required best endeavours to secure suitable accommodation within eight weeks, and made no order as to costs throughout.