Day, R (on the application of) v Waltham Forest

Where a judicial review claim is resolved by agreement, the court may determine costs by focusing on the parties’ conduct rather than conducting a detailed assessment of the underlying merits. A public authority may be ordered to pay costs where it delays acknowledging service, fails to comply with procedural requirements after permission is granted, or communicates a change of position so late that the hearing cannot sensibly be avoided. Authorities should promptly inform both the claimant and the Administrative Court Office of administrative developments that may render the claim unnecessary or show that it proceeds on a mistaken basis. Procedural rules must be observed; a party that fails to provide required material within time cannot ordinarily complain when the court makes adverse costs decisions.

The claimant sought judicial review concerning the defendant local authority’s handling of her housing application. Permission was granted on 29 July 2004. The substantive dispute was then expected to be resolved administratively: the council proposed to provide the housing file, receive representations, and make a fresh decision. The parties therefore proposed that the application be adjourned generally, subject to a default mechanism for dismissal or withdrawal.

The remaining issue was costs. The court considered whether the council’s conduct, including delay in acknowledging service, failure to provide required grounds and evidence, failure to serve a timely skeleton argument, and late communication of a change in its proposed decision, justified an order for costs.

1. Disposition. The application was to be adjourned generally under a consent order. The costs issue was resolved in the claimant’s favour, with costs to be subject to detailed assessment if not agreed, including detailed assessment for public funding purposes.
2. In a judicial review resolved by consent, it is generally unproductive to investigate all the merits and effectively try the proceedings. The appropriate focus is ordinarily the conduct of the public authority and the circumstances in which the claim became unnecessary or was resolved.
3. The council should have made its section 184 decision in late February, subject to the possibility that a more complex case might reasonably take longer. The delay, together with the absence of a timely acknowledgment of service, meant that the council could not complain about the grant of permission or the costs incurred up to that stage.
4. After permission was granted, the council was required to serve detailed grounds and evidence within the prescribed period. Its acknowledgment of service contained only summary grounds and expressly reserved the possibility of further grounds or a skeleton argument. The council also failed to serve a skeleton argument within time. These failures justified costs up to the hearing.
5. The council’s late notification, sent shortly before the hearing, that it was minded to make an unfavourable decision meant that the hearing could not reasonably be avoided. The resulting costs could have been prevented by earlier communication.
6. The court did not find bad faith or deliberate obstruction. The guidance was practical: where administrative action may make judicial review unnecessary, or show that the claim is proceeding on an incorrect basis, the authority should promptly inform the claimant and the Administrative Court Office. Procedural rules are to be observed, and silence or non-compliance may lead to adverse decisions.