Sutton, R (on the application of) v Calderdale Council

In resolved judicial review proceedings, the court has power to decide costs even where the substantive claim ends without a trial. The central question is which order best does justice, having regard to the likely outcome, the parties’ conduct, the costs at stake and the need to encourage sensible settlement. The usual fallback is no order as to costs, but it should not be adopted automatically. A claimant who has obtained no substantive relief and cannot show that the defendant acted unlawfully will ordinarily have difficulty establishing an entitlement to costs. On the facts, the claim was withdrawn after a valid assessment had been made, and it was not clear that the proceedings were necessary or would have succeeded.

Sutton, R (on the application of) v Calderdale Council concerned judicial review proceedings seeking accommodation, community-care assessment and services. The claimant had mental-health and housing difficulties and alleged that the defendant local authority had failed to assess his needs under section 47 of the National Health Services and Community Care Act 1990.

During the proceedings the claimant was accommodated and assessed. At a review hearing, he accepted that an updated assessment was valid and withdrew the claim, while seeking his costs. The council argued that it had acted promptly and that the claim had been unnecessary. The issue was the appropriate costs order where judicial review proceedings had been resolved without substantive relief.

1. Disposition. The claim having been withdrawn and no substantive relief having been granted, there was no order as to costs.
2. The court adopted the guidance summarised by Rimer LJ in Broom v Secretary of State for Justice [2012] EWCA Civ 275. The court may make a costs order after substantive proceedings have been resolved without trial. It must seek to do justice without unnecessary court time or expense. It should assess, so far as proportionate, which party would probably have succeeded, the conduct of the parties and the circumstances of the settlement. Where the likely result is unclear, the usual fallback is no order as to costs.
3. The court also considered the guidance in R (Boxall) v LB of Waltham Forest (2001) 4 CCL Rep 258, as endorsed in R (on the application of Scott) v London Borough of Hackney [2009] EWCA Civ 217, and the additional guidance in The Queen on the Application of Bahta and Others v Secretary of State for the Home Department and Others [2011] EWCA Civ 895. Those authorities recognise both the general entitlement of a successful claimant to costs and the importance of analysing the circumstances rather than applying the no-order outcome mechanically.
4. On the facts, the claimant had obtained no relief. It was not established that the accommodation resulted from the proceedings, or that the council had breached its obligations by failing to assess him earlier. The case was complex, interim assessments had been made, and a final assessment could not readily have been completed before the relevant mental-health proceedings. It was therefore not obvious that the claimant would have succeeded.