DG & Ors R (on the application of) v Worcestershire County Council

Where judicial review proceedings are resolved without a trial and the parties cannot agree costs, the court may make a costs order after considering the apparent merits of the claim in a broad and proportionate way. The usual order is no order as to costs unless there is a good reason to depart from that position. A costs award may be justified where one party was clearly likely to succeed, but it is not confined to cases where the result was obvious. A claimant may reasonably commence judicial review even where alternative procedures exist if the circumstances make judicial review an appropriate and effective remedy. A consent order does not, without more, amount to an admission that earlier decisions or assessments were unlawful or inadequate.

Five adults with learning difficulties challenged Worcestershire County Council’s decision to approve the withdrawal of Supporting People funding for care provided alongside their accommodation. They argued that the Council had failed to assess their needs properly, consult them, and address the consequences of the funding withdrawal, including the possible loss of their accommodation.

The proceedings were resolved through mediation and a consent order. The Council agreed to complete and update assessments, prepare care plans, consult the claimants, and continue funding arrangements for a specified period. The claimants sought their costs. The Council submitted that the appropriate order was no order as to costs.

1. Costs after settlement. The court applied the guidance in R on the application of Boxall v The Mayor and Burgesses of Waltham Forest LBC [2001] 4 CCLR 258. The court had power to decide costs although the substantive proceedings had ended without trial. The overriding objective was to do justice without incurring unnecessary court time and expense. The fallback position, absent a good reason, was no order as to costs.
2. The court should not conduct a full rehearing of the substantive judicial review. It could, however, make a broad and proportionate assessment of the apparent merits. An award was easier where it was obvious which party would have succeeded, but a strong case could justify costs even where the result was not certain. The approach in R (Kaya) v IAT [2003] EWHC 2716 (Admin) was particularly helpful: a cursory but informed reading should show that the claimant was very likely to succeed before costs were awarded on that basis.
3. It was reasonable for the claimants to bring judicial review. The decision had potentially serious consequences, the timetable was significant, and internal appeals or an ombudsman complaint were unlikely to provide an equivalent remedy.
4. The claim appeared arguable and strong in relation to the Council’s failure to address properly the effects of the Supporting People decision on the claimants and on their accommodation. Nevertheless, it was not possible to conclude that the claimants would clearly have succeeded. Their obtaining much of what they sought through the consent order did not itself justify an award of costs.
5. The Council’s agreement to undertake further assessments did not imply that its earlier assessments were legally inadequate. The proceedings were withdrawn with no order as to costs, subject to legal aid assessment.