Hunt, R (On the Application of) v North Somerset Council

Success on substantive arguments does not necessarily justify an award of costs where an appeal produces no practical benefit and was destined to fail because relief could not properly be granted. The court may also reduce the successful respondent’s costs where its resistance on unsuccessful substantive grounds materially increased the cost of the appeal. In this case, the appellant received no costs despite succeeding on the two argued issues. The respondent was awarded only one half of its appeal costs, subject to the appellant’s legal-aid protection.

The appellant challenged a decision of North Somerset Council by judicial review. Mr Justice Wyn Williams dismissed the claim in the Administrative Court and ordered the appellant to pay the Council’s costs: [2012] EWHC 1928 (Admin).

The Court of Appeal subsequently dismissed the appeal and refused relief in its main judgment: [2013] EWCA Civ 1320. The appellant had succeeded on the Public Sector Equality Duty issue and had the better argument on an Education Act 1996 issue, on an expressly undecided premise that his legal proposition was correct. The present judgment concerned the appropriate order for the appeal costs.

1. Disposition. The appeal had been dismissed and no relief had been granted. The court therefore addressed only the costs consequences.
2. The appellant was not entitled to recover costs, despite having succeeded on both substantive issues argued. On the Public Sector Equality Duty issue he had succeeded outright. On the Education Act 1996 issue, the court had reservations about the correctness of his legal proposition, although he had the better of the argument on the express premise that it was correct. The decisive point was that the court considered it far too late to grant relief when the appeal was heard, and doubted whether relief would have been appropriate even a year earlier. The appeal had no practical value to the appellant and was regarded as one that was always destined to fail.
3. The Council was, in principle, entitled to its costs as the successful party. The court nevertheless declined to award all of them because the Council had resisted the appeal on the two substantive grounds on which it lost. That resistance increased the cost of the appeal.
4. The Council was awarded one half of its appeal costs. Counsel were asked to lodge an agreed order reflecting that decision and the protection applicable to the legally aided appellant. The High Court costs order was left undisturbed.

• Court of Appeal (Civil Division): The appeal was dismissed and no relief was granted in the main judgment, [2013] EWCA Civ 1320. In this costs judgment, the Council was awarded one half of its appeal costs.
• Administrative Court: Mr Justice Wyn Williams dismissed the judicial review claim and ordered the appellant to pay the Council’s costs, [2012] EWHC 1928 (Admin).