Mendes & Anor v London Borough of Southwark

An appellate court may determine an appeal from a valid High Court costs order even where judicial review proceedings were resolved before permission was granted. A judge deciding costs after a settlement must make a reasonable and proportionate assessment of the merits. The usual fallback of no order as to costs applies only absent a good reason for another order.

Where it is clear that the claimant would have succeeded, and reasonably incurred costs to avert the immediate consequences of an unlawful public-law decision, those costs should ordinarily be recovered. A prompt and sensible concession may prevent further costs but does not deprive the claimant of costs already reasonably incurred.

An EEA national and his family sought homelessness assistance after he ceased work because of a shoulder injury. The local authority initially treated him as economically inactive and ineligible. It also refused temporary accommodation pending a statutory review. The appellants issued judicial review proceedings shortly before they were required to leave their temporary accommodation.

The authority then continued the accommodation and, on review, accepted that the first appellant remained a qualified person under the Immigration (European Economic Area) Regulations 2006. The judicial review claim was withdrawn by consent. Dobbs J made no order as to costs without giving reasons. The appeal concerned the Court of Appeal’s jurisdiction and whether the appellants should recover the costs of the withdrawn claim.

1. Appeal allowed. Sedley LJ, with whom Moore-Bick LJ agreed, held that the court had jurisdiction under section 16 of the Supreme Court Act 1981 to hear an appeal from the High Court’s valid costs order. The fact that the judicial review claim had been resolved before permission did not remove that jurisdiction. The issue was also of general importance and was not too abstract or inconsequential to entertain.

2. A judge deciding costs on written submissions should give at least brief reasons showing why one party’s case has been preferred. That followed the approach in English v Emery Rheinbold [2002] 1 WLR 2409. The parties did not seek a remittal, however, and the Court of Appeal could decide the issue itself.

3. The first appellant retained worker status while temporarily unable to work through illness or accident under Regulation 6(2)(a) of the Immigration (European Economic Area) Regulations 2006. Subsequently he also qualified under Regulation 6(2)(b)(ii) or (iii). The authority’s reliance on Regulation 6(2)(b)(i), which did not apply, was legally erroneous. It was therefore plain that the claim would have succeeded and that, if the correct test had been applied, the family would have been accommodated.

4. Applying R (Scott) v LB Hackney [2009] EWCA Civ 217 and R (Boxall) v LB Waltham Forest [2001] 44 CCLR 258, the court held that costs after settlement require a reasonable and proportionate assessment of the unresolved merits. No order is a fallback, not an automatic response to compromise. Here the proceedings were issued at the last responsible moment to prevent the family becoming homeless. The authority’s later, sensible concession avoided further expense, but did not provide a reason to deny recovery of costs already incurred reasonably and timeously.

5. The order was substituted with an order that the appellants recover their costs of the judicial review proceedings.

• Court of Appeal (Civil Division) Allowed the appeal and substituted an order awarding the appellants their judicial review costs: [2009] EWCA Civ 594.
• Administrative Court, Queen’s Bench Division Following withdrawal by consent of the judicial review claim, Dobbs J ordered that there be no order as to costs on 13 August 2008. No citation for that order is stated in the judgment.