Illingworth, R. (on the application of) v Leeds City Council

Permission to appeal may be refused where the substantive issue has become academic because the applicant has obtained the documents sought. The court will not ordinarily entertain an appeal merely to provide general guidance on matters no longer in dispute, particularly where there is no real prospect of a full appellate hearing. Where a respondent agrees to repay costs already received and no practical issue remains for determination, the court may make no order on costs.

The appellant sought permission to appeal against Langstaff J’s refusal on 29 July 2010 of permission to bring judicial review proceedings. Buxton LJ refused permission to appeal on 17 November 2010. The renewed application was adjourned so that the respondent could make written representations on permission and costs.

By then, the Council had conceded access to the working file, and the appellant had obtained the documents sought through the Freedom of Information Act. The central issues were whether any live substantive appeal remained and whether a costs order was required after the Council offered to repay the costs received.

1. The renewed application for permission to appeal was refused. The substantive appeal had become purely academic because the Council had conceded access to the working file and the appellant had obtained the documentation sought through the Freedom of Information Act.
2. There was no real prospect of persuading a full Court of Appeal, which was short of time for deciding actual disputes, to hear an appeal merely to issue general guidance on the matters raised. It was therefore inappropriate for the court to comment further on the proposed appeal or on additional criticisms contained in the appellant’s later letter.
3. On costs, the Council had taken the economic decision to repay the £1,925 received from the appellant. In those circumstances, it was undesirable to comment on the rival costs submissions and unnecessary to make a decision or order on that issue.
4. The only order required was refusal of permission to appeal. No order for costs was made, since the Council had stated in writing that it would repay the costs and there was no reason to doubt that undertaking.

1. Court of Appeal (Civil Division): The renewed application for permission to appeal was refused. No order for costs was made. [2011] EWCA Civ 640.
2. Court of Appeal (Civil Division): Buxton LJ refused permission to appeal on 17 November 2010.
3. Queen’s Bench Division, Administrative Court: Langstaff J refused permission to bring judicial review proceedings on 29 July 2010.