DB & Ors v Worcestershire County Council

When judicial review proceedings are withdrawn or settled without determination of the substantive issues, the court retains power to decide costs. The court should conduct an appropriately limited assessment of the merits and ask whether one party would probably have succeeded, while avoiding a disproportionate rehearing. The ordinary fallback, absent a good reason, is no order as to costs. A defendant’s change of position or agreement to take remedial steps does not by itself establish that the original decision was unlawful or justify a costs order against the defendant.

Adults with learning disabilities challenged Worcestershire County Council’s decision to terminate Supporting People funding for support services provided by Marpool Ltd and its alleged refusal to secure continuing support and assess their housing needs. The claim included grounds based on consultation, failure to consider relevant factors, community care assessments, irrationality, policy, and article 8.

The judicial review was withdrawn by consent, with costs reserved. The court therefore had to determine whether the claimants would probably have succeeded had the substantive application proceeded, and whether the Council’s post-claim steps amounted to an acknowledgement of error.

1. Costs jurisdiction and approach. The court applied the principles in Boxall v The Mayor and Burgesses of Waltham Forest LBC (2001) 4CCLR 258. The court may decide costs after substantive proceedings end without trial. It should do justice without unnecessary court time and cost, examine the unresolved merits only to the extent appropriate, and ordinarily make no order as to costs absent a good reason.
2. Post-litigation conduct. The Council’s agreement to complete assessments, consider future provision, negotiate with Marpool, and continue funding did not inevitably show that it had accepted its original decisions were unlawful. Some steps would have been taken in any event, and a decision-maker may rationally change position. The arrangements were also a sensible means of resolving a continuing relationship, consistently with the caution against discouraging settlement.
3. Merits assessment. The challenges concerned both the Supporting People funding decision and the social services decision. They raised substantial factual and legal issues concerning consultation, guidance, housing needs, the quality of Marpool’s services, and alternative provision. On the limited examination suitable for a costs hearing, the court could not confidently conclude that the claimants would have succeeded. They had a reasonable case, but it was not clearly likely to result in a win.
4. Order. The claimants’ application for costs failed. There was no order as to the costs of the hearing, subject to detailed assessment of the claimants’ publicly funded costs.