Dempsey v London Borough of Sutton

Costs in judicial review are not decided mechanically by asking who would have won at a hypothetical trial. Where proceedings end before a final hearing, the court should take an overall, fact-sensitive view of the parties’ conduct, the urgency, the information available, the interim protection obtained, the practical result and the reason the proceedings ended. A claimant who reasonably seeks urgent protection because an existing care placement or its funding is threatened may recover costs where court intervention secures time, proper assessments and a suitable alternative. Resource constraints and alternative remedies remain relevant, but may carry little weight where the public authority failed to provide necessary assessments and the alternative remedy was unrealistic.

Susan Dempsey, who required complex physical and nursing care after brain surgery and a stroke, challenged the London Borough of Sutton’s failure to provide suitable alternative accommodation when funding for her existing placement was due to end. The council proposed Belsize Court, which she considered unsuitable, but had not supplied the relevant care assessment and care plan. Interim relief preserved her existing placement. Before the judicial review hearing, the council offered suitable supported accommodation at Flat 17, 49 Hackbridge Road, and the claim’s substantive issue was not pursued.

The High Court made no order as to costs. The appeal concerned whether that costs decision should stand, particularly where the claimant had obtained the practical protection and accommodation sought without a final determination of the merits.

1. Appeal and costs. The appeal was allowed. The appellant was entitled to her costs against the London Borough of Sutton.
2. Applicable approach. In judicial review proceedings that do not reach a final hearing, costs must be determined by an overall assessment of the specific facts and the reasonableness of the parties’ conduct. The court should not undertake a disproportionate or speculative inquiry into who would have succeeded at trial. The classification of cases in M’s case [2012] EWCA Civ 595 was relevant, as was the general rule in CPR rule 44.3(2)(a) that a successful party may look to the unsuccessful party for its costs. Those principles did not require a technical approach.
3. Reasonableness of commencing proceedings. It was reasonable for the appellant to seek urgent judicial review. Funding for her existing placement was about to end, the council’s only proposed alternative was unacceptable to her, and the relevant care assessments had not been provided. The council had duties to provide suitable accommodation and to make the assessments on which the accommodation decision could properly be based. Complaints or review procedures were unrealistic in the circumstances.
4. Practical outcome. Interim relief gave the appellant security and time. As the judicial review hearing approached, the council offered supported accommodation in a disabled persons’ unit which both sides regarded as suitable. The appellant therefore achieved the practical objective for which proceedings had been commenced. It was unnecessary to resolve the hypothetical issue of whether Belsize Court would have been suitable.
5. Distinction from authority. R(Naureen; Hayat) v Salford City Council [2012] EWCA Civ 1795 was materially different. There, proceedings became unnecessary because a third party granted indefinite leave to remain. Here, the appellant’s proceedings secured the interim protection, assessments and suitable accommodation. Lady Justice Black agreed.

• Court of Appeal (Civil Division): On 21 February 2013, the court allowed the appeal and awarded the appellant her costs: [2013] EWCA Civ 863.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Mr Timothy Straker QC, sitting as a Deputy High Court Judge, decided on 22 August 2012 that there should be no order as to costs, while continuing provision for assessment of the appellant’s publicly funded costs.