LT and DT v City & County of Cardiff & Anor

Where an inferior court or tribunal does not appear to oppose a challenge to its decision, the ordinary practice is to make no order for costs against it. Costs may nevertheless be ordered where it has behaved flagrantly improperly, unreasonably refused or neglected to sign a consent order, or actively participated in opposing the proceedings. An error of judgment, even one causing unfairness and requiring the decision to be quashed, does not without more amount to flagrant improper behaviour. The court may recognise the successful party’s lack of fault and the anomaly that public funds cannot ordinarily be used to indemnify such costs, but those considerations do not themselves justify a costs order against the tribunal.

The appellants challenged a decision of the Special Educational Needs Tribunal for Wales concerning their child’s statement of special educational needs. The tribunal had dismissed the appeal and directed the local authority to cease maintaining the statement. The appellants commenced proceedings in the Administrative Court, but the tribunal subsequently granted a review, ordered a rehearing before a differently constituted panel and quashed its earlier decision. The substantive challenge therefore became academic, leaving only the question whether the tribunal should pay the appellants’ costs.

1. The court treated R (on the application of Davies) v The Birmingham Deputy Coroner [2004] 3 All ER 543 as stating the relevant practice. Ordinarily, no order for costs should be made against an inferior court or tribunal which does not appear to oppose the challenge.
2. There are recognised exceptions where the inferior body has behaved flagrantly improperly, unreasonably declined or neglected to sign a consent order, or actively resisted the application by argument so as to make itself an active party. In the ordinary case of active resistance, costs follow the event.
3. The tribunal had acted improperly in procedural terms by raising, without adequate prior notice, the fundamental issue whether the statement should continue, particularly when the appellants were unrepresented. Fairness required an adjournment. The tribunal’s subsequent review and quashing of its decision gave the appellants all the substantive relief available.
4. Nevertheless, the tribunal had acted in the belief that its course was appropriate. Its conduct was an error of judgment, not flagrant improper behaviour. It had not actively participated in the Administrative Court proceedings, and there was no basis for ordering it to pay costs. A detailed investigation of the appellants’ wider complaints would have been disproportionate to the costs at stake.
5. The appeal was dismissed with no order for costs. That order did not detract from the finding that the appellants had achieved all available substantive relief.

1. Special Educational Needs Tribunal for Wales: dismissed the appellants’ appeal and directed the local authority to cease maintaining the statement.
2. Special Educational Needs Tribunal for Wales on review: granted a review, ordered a rehearing before a differently constituted panel and subsequently quashed the earlier decision.
3. High Court (Administrative Court): determined that only costs remained, declined to order the tribunal to pay them and dismissed the appeal with no order for costs.