M v London Borough of Croydon

Where a claimant obtains all or substantially all the relief sought after issuing proceedings, the claimant is ordinarily the successful party and should recover costs unless the defendant establishes a good reason for a different order. This rule applies equally in judicial review proceedings. Costs remain discretionary and depend on the whole sequence of events, including compliance with the pre-action protocol, the extent of success, changes in the law and the parties’ conduct. Where relief is partial or the settlement does not reveal a clear winner, the court may make no order if a fair determination would require disproportionate investigation. Public funding, administrative workload and the public status of the defendant do not themselves justify withholding costs.

The appellant was an unaccompanied asylum seeker whose age determined the respondent local authority’s responsibilities under section 20 of the Children Act 1989. He maintained that he had been born in 1996, while the respondent assessed him as having been born in 1994. He issued judicial review proceedings after extensive correspondence and two pre-action protocol letters.

While the proceedings were pending, R (A) v Croydon LBC and R (M) v Lambeth LBC [2009] UKSC 8 established that age was a fact for the court rather than a matter reviewable only on conventional irrationality grounds. The respondent later accepted the appellant’s asserted date of birth, and the substantive claim was withdrawn by consent.

Lindblom J subsequently made no order for costs. The appeal concerned the proper costs approach where a public authority concedes all or part of the relief sought in judicial review proceedings.

1. Appeal allowed. The Master of the Rolls gave the leading judgment. Hallett LJ and Stanley Burnton LJ agreed. Lindblom J had adopted the wrong approach by treating no order for costs as the appropriate outcome despite the appellant having obtained the entirety of the substantive relief sought.

2. The general rule in rule 44.3(2) of the Civil Procedure Rules 1998 applies equally to public and private law litigation. A claimant who obtains all or substantially all the relief sought, whether after trial or by settlement, is the successful party and should ordinarily recover costs. The defendant bears the burden of showing a good reason for departure. Public authorities have no privileged position, and neither workload nor limited resources ordinarily supplies such a reason.

3. The court distinguished three broad settlement situations. A wholly successful claimant should normally recover all costs. Where the claimant succeeds only in part, the court should consider the importance, reasonableness and cost of the unsuccessful issues; no order may be appropriate if those questions cannot be resolved fairly without disproportionate investigation. Where a compromise does not correspond directly with the pleaded relief, no order will often be the default unless the court can readily form a tolerably clear view of who succeeded or would have succeeded.

   The guidance in R (Boxall) v Waltham Forest LBC (2001) 4 CCLR 258 and R (Scott) v Hackney LBC [2009] EWCA Civ 217 was therefore not inconsistent with the ordinary rule. Those cases concerned partial success or the absence of a clear winner. R (Bahta) v Secretary of State for the Home Department [2011] EWCA Civ 895 correctly emphasised the successful claimant’s prima facie entitlement and the relevance of the whole sequence of events and protocol compliance.

4. The appellant had clearly presented his case, complied with the protocol and ultimately obtained everything sought. Nevertheless, before the Supreme Court changed the perceived law, the respondent had reasonably defended the claim under the conventional irrationality standard. The changing assessment of the appellant’s expert evidence also justified a reduction. The respondent was therefore ordered to pay 50% of the appellant’s costs incurred up to 26 July 2010 and 100% thereafter, assessed on the standard basis if not agreed.

1. Court of Appeal (Civil Division): In M v London Borough of Croydon [2012] EWCA Civ 595, the court allowed the appeal, set aside the decision to make no order for costs, and ordered the respondent to pay 50% of the appellant’s costs up to 26 July 2010 and 100% thereafter.
2. High Court, Administrative Court: After the substantive age dispute was resolved by consent, Lindblom J determined the reserved costs issue on paper on 18 May 2011 and made no order for costs.