A & Ors, R (on the application of) v East Sussex County Council

Where judicial review proceedings are concluded without a final trial and costs remain disputed, the court should do justice between the parties without undertaking disproportionate investigation of unresolved merits. The court may adopt a broad-brush assessment, considering the apparent strength of decided issues and, where appropriate, the likely outcome of unresolved issues. The usual fallback is no order as to costs. A party who reasonably rejects an unreasonable or unrealistic mediation proposal may still recover costs. Separate sets of costs may be awarded where the circumstances make that fair and appropriate.

The judgment determined costs arising from prolonged judicial review proceedings and related best-interests proceedings concerning the care of A and B by X and Y. The substantive proceedings had concluded by consent orders dated 25 June 2004, leaving costs for written determination.

Earlier judgments had decided the user independent trust issue and stated general principles concerning manual handling, but many factual and technical issues had never been adjudicated. The central questions were how far the court should assess unresolved merits, whether mediation affected costs, and what proportion and number of costs the claimants should recover.

1. Unresolved judicial review proceedings. Applying the principles in R (Boxall) v The Mayor and Burgesses of Waltham Forest LBC, (2000) 4 CCLR 258, the court had power to make a costs order after settlement without a trial. It should avoid an investigation of unresolved issues requiring substantial argument and evidence. The appropriate approach was broad-brush and proportional.
2. Decided issues. The claimants had succeeded on every point concerning the user independent trust and had won the legal aspects of the manual handling issue by a reasonable margin. It was also reasonable to believe that they would have made significant headway on some unresolved manual-handling challenges. Those matters justified an order for costs.
3. Unresolved factual and technical issues. The court could not safely determine the merits of the many unadjudicated challenges without examining extensive evidence and a 207-item Scott Schedule. It was therefore inappropriate to make an issues-based order or to impose further disproportionate litigation. A percentage order was required.
4. Mediation. The principles in R (Cowl) v Plymouth City Council (Practice Note), [2001] EWCA Civ 1935, [2002] 1 WLR 803 remained important. However, the claimants had reasonably rejected mediation proposals that were unrealistic and conditional on abandoning substantial parts of the challenge. That did not deprive them of costs.
5. Separate representation and sets of costs. Applying the principles in Bolton Metropolitan District Council v Secretary of State for the Environment (Practice Note), [1995] 1 WLR 1176, and R (Smeaton) v Secretary of State for Health and others (No 2), [2002] EWHC 886 (Admin), it was fair and appropriate to allow two sets of costs up to 25 November 2002, given the conflict created by the defendant’s proceedings and the separate interests represented.
6. The defendant was ordered to pay A and B, and X and Y, one-half of their costs from 14 June 2002 to 25 November 2002, subject to detailed assessment on the standard basis. There was otherwise no order as to costs, including for the present costs application.

Not an appeal. The court determined outstanding costs following consent orders concluding the substantive judicial review and best-interests proceedings.