Harripaul v London Borough of Lewisham

When a public authority withdraws a decision under challenge and agrees to reconsider it, the claimant is ordinarily treated as the successful party. The starting point is an order for the claimant’s costs, and the authority bears the burden of showing why that rule should not apply. The court must assess the circumstances, including the concession and the likely outcome; it need not be satisfied that success was obvious. A good arguable case that could well have succeeded may support the ordinary costs order. Public funding and remuneration of the claimant’s lawyers do not justify withholding costs. A concession is a factor, not an automatic reason for making no order.

Joanne Harripaul appealed under section 204 of the Housing Act 1996 against a review decision concerning her housing case. His Honour Judge Bailey dismissed the appeal in the Central London County Court on 20 January 2011 and ordered costs against her. The Court of Appeal granted permission for a second appeal. Lewisham then withdrew the review decision and agreed to conduct a fresh review. A consent order dismissed the appeal and varied the county court costs order to no order as to costs. The remaining issue was the inter-party costs of the Court of Appeal proceedings, to be determined on written submissions.

The appeal had been dismissed by consent after the respondent withdrew the review decision and agreed to carry out a fresh review. The only issue for determination was the appropriate order for the costs of the appeal.

1. Starting point. The appellant was to be regarded as the successful party because she had obtained the relief sought. The starting point was that she should receive her costs, and the burden of justifying a departure lay on the respondent. This reflected the approach in R (on the application of Bahta and Others) v Secretary of State for the Home Department and Others [2011] EWCA Civ 895.
2. Assessment of the circumstances. The guidance in R (Boxall) v LB of Waltham Forest (2001) 4 CCL Rep 258 was relevant to the exercise. The respondent’s concession was a factor, but it did not determine the costs issue. The passage from R v Liverpool City Council, ex parte Newman (1992) 5 Admin LR 669 did not provide a general basis for depriving the appellant of costs. The court was entitled to consider the practical consequences and the timing of the concession.
3. Merits. It was not obvious that the appellant would have won had the appeal been fully argued. She nevertheless had a good arguable case that could well have succeeded. That uncertainty did not displace the starting point in her favour.
4. Public funding. The fact that the appellant was publicly funded, and that her solicitors would receive some remuneration in any event, was not a good reason to refuse an order for costs.
5. Order. No sufficient factor justified departure from the general rule. The respondent was ordered to pay the appellant’s costs of the appeal, subject to detailed assessment on the standard basis if not agreed.

• Court of Appeal (Civil Division): Permission for a second appeal was granted on 22 July 2011. After the respondent withdrew the review decision and agreed to a fresh review, the appeal was dismissed by consent. On the remaining costs issue, the court ordered the respondent to pay the appellant’s costs: [2012] EWCA Civ 266.
• Central London County Court: His Honour Judge Bailey dismissed the appellant’s appeal under section 204 of the Housing Act 1996 on 20 January 2011 and ordered costs against her.