Scott, R (on the application of) v London Borough of Hackney

On a costs application following the compromise or withdrawal of judicial review proceedings, the court must exercise the broad discretion in Civil Procedure Rules Part 44.3 by reference to all the circumstances. It should make a reasonable and proportionate assessment of the unresolved merits, the parties’ conduct and the costs at stake. A detailed forensic trial of the abandoned claim will rarely be proportionate.

Public funding does not create a separate costs regime. The consequences for legally aided parties, their lawyers and the public fund are relevant, but cannot justify a costs order that is otherwise unjust. No order for costs remains a proper residual outcome where neither side was a clear winner, provided the judge has undertaken the required assessment and has not adopted that outcome mechanically.

The appellant, a disabled adult acting through his mother and litigation friend, brought judicial review proceedings against the local authority concerning his care arrangements. The claim included alleged failures to provide suitable day care and a written care plan. The proceedings were ultimately withdrawn after a care-plan review and proposed day-care placement, leaving costs as the only issue.

On 18 April 2007, Mr Kenneth Parker QC, sitting as a Deputy High Court Judge in the Administrative Court, made no order for costs apart from detailed assessment of the appellant’s publicly funded costs. He considered that the authority had reasonable defences, that parts of the claim were not pursued, and that he could not conclude that the appellant would have succeeded on the core claim.

The appeal concerned the correct approach to costs in compromised judicial review proceedings, including the relevance of public funding and the authority’s conduct.

1. Appeal dismissed. Lady Justice Hallett, with whom Lord Justice Richards and Sir Andrew Morritt agreed, held that the deputy judge had exercised his costs discretion properly.

2. The applicable framework was that in R (Boxall) v Waltham Forest LBC [2001] 4 CCLR 258, applied with Civil Procedure Rules Part 44.3. After judicial review proceedings are resolved without a trial, the court may make a costs order. It must consider all the circumstances, including the merits as they can proportionately be assessed, the parties’ conduct, and the need not to discourage settlement.

3. A legally aided claimant is not ordinarily to be treated differently for costs purposes. The lower remuneration available in publicly funded cases, and the importance of recoupment to the legal-aid system, were matters judges should bear in mind. They did not permit the court to create separate costs rules or to alter a just result merely because publicly funded rates were low.

4. Such applications are commonly decided on paper. The court should not undertake an elaborate forensic examination of the unresolved claim. The judge’s statement that he could not confidently conclude that the claimant would have succeeded did not impose an excessive standard; it meant that, on the limited material, an inter partes order was not shown to be just.

5. The appellant was not a clear winner. The authority had reasonable defences to the principal claims, the day-care claim appeared unsustainable, the significance and timing of the written care plan were disputed, and responsibility for the parties’ conduct could not fairly be assigned on the papers. The deputy judge had not mechanically adopted the fallback of no order for costs. His conclusion lay within the generous ambit of his discretion.

• Court of Appeal (Civil Division): appeal dismissed in [2009] EWCA Civ 217; the no-order costs decision was upheld.
• Administrative Court (Queen’s Bench Division): on 18 April 2007, Mr Kenneth Parker QC, sitting as a Deputy High Court Judge, ordered no costs between the parties, save for detailed assessment of the claimant’s publicly funded costs. No citation is stated in the judgment.