Baxter, R (on the application of) v Lincolnshire County Council

In settled judicial review proceedings, costs must be determined summarily and proportionately on the material available. The claim form, relief sought, consent order, pre-action conduct and correspondence will often provide the appropriate starting point. A claimant is not necessarily the successful party merely because a public authority agrees to reconsider a decision or undertakes a further assessment. The claimant must establish a sufficiently clear link between the proceedings and the agreed relief, including that the litigation achieved the substance of what was sought. Costs remain highly fact-sensitive and discretionary. An appellate court should interfere only for an error of law or principle, or where the decision falls outside the range open to the first-instance judge.

The appellant challenged a decision to place him in supported living accommodation away from Spalding. He sought to quash the decision and require a lawful assessment and care plan. After proceedings were issued, the respondent agreed to hold a Best Interests meeting under the Mental Capacity Act 2005 and to obtain independent expert input. The claim was withdrawn by consent, with costs left for determination on written submissions.

A Deputy High Court Judge initially ordered costs in the appellant’s favour but recalled that order after receiving the respondent’s submissions. Professor Elizabeth Cooke, sitting in the Administrative Court, ultimately made no order for costs on 28 October 2014. The appeal concerned whether the appellant had obtained the relief sought and was the successful party for costs purposes.

1. Appeal dismissed. The order making no order for costs was within the range of decisions open to Professor Cooke and involved no error of law or principle.
2. Where parties settle judicial review proceedings and leave costs to a single judge on the papers, the determination is necessarily summary and proportionate. The court should often begin with the claim form, particularly the relief sought, and the consent order. Compliance with the Pre-Action Protocol, the correspondence, the necessity of commencing proceedings and the relationship between the claim and agreed relief may also be relevant. The list of factors cannot be exhaustive.
3. The approach in M v Croydon London Borough Council [2012] EWCA Civ 595 remains fact-sensitive. A wholly successful claimant will generally recover costs. In a partly successful case, the court may consider the reasonableness and importance of pursuing unsuccessful claims and the additional costs caused by them. Where the settlement is a compromise that does not reflect the claims, it may be difficult to identify a successful party and no order for costs may be appropriate.
4. The appellant had not established that the consent order provided the relief sought. The respondent had not withdrawn or quashed the placement decision, accepted that it was unlawful, agreed to produce the requested care plan or agreed to carry out the statutory assessment under s.47 of the National Health Service and Community Care Act 1990. The Best Interests process and possible independent expert assessment were distinct from that statutory assessment, and the original decision remained in force unless changed after reconsideration.
5. The appellant also could not show that issuing judicial review proceedings was necessary to obtain the agreed steps. The court applied R (Speciality Produce Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2014] EWCA Civ 225, where the clarity of the link between the claim and agreed relief was material. Professor Cooke was therefore entitled to conclude that the appellant had not been vindicated or wholly successful.

• Court of Appeal (Civil Division). In [2015] EWCA Civ 1290, Simon LJ gave the judgment and Floyd LJ agreed. The appeal was dismissed.
• High Court of Justice, Administrative Court. Professor Elizabeth Cooke, sitting as a Deputy High Court Judge, made no order for costs on 28 October 2014 after an earlier costs order had been recalled.