E, R (On the Application Of) v London Borough of Croydon

Where judicial review proceedings are settled with only partial success, the court retains a discretion to make a partial or fractional costs order. The outcome must be assessed by reference to the substance of the settlement and the particular facts, rather than by applying an automatic no-order rule. A claimant who achieves significant practical relief may receive costs despite failing to obtain all the relief sought. The court should also consider the relative strength of the legal and moral claims and the proportionality of the costs incurred.

The claimant, a child in need owed duties by the local authority under sections 17 and 20 of the Children Act 1989, challenged the refusal to treat her as accommodated with a particular adult and to provide corresponding financial support. The claim was listed for substantive hearing but the parties reached an agreement, including backdated payments, interim foster-carer payments and a fresh viability assessment. They could not agree costs. The central issue was whether the claimant had achieved sufficient success to justify a costs order and, if so, its appropriate extent.

1. The claim was discontinued following an overall agreement. The court therefore determined costs discretionarily.
2. The applicable framework was that described by Lord Neuberger MR in M v Mayor & Burgesses of the London Borough of Croydon [2012] EWCA Civ 595. The claimant had not been wholly successful and the case fell within the categories concerning partial success pursuant to settlement. The particular facts remained decisive.
3. The court rejected the submission that settlement necessarily required no order as to costs. A partial or fractional costs award was available.
4. The claimant had achieved partial but significant practical success by securing ex gratia backdated payments, interim foster-carer payments and a fresh viability assessment. Her success was not proportionate to the costs incurred, but the defendants had also contributed to the unnecessary expenditure.
5. The court considered the claimant’s legal case weak, because the local authority’s good-faith assessment that the proposed home was unsuitable was legally determinative of the requested accommodation arrangement. Her moral case was nevertheless strong and materially informed the costs discretion.
6. The London Borough of Croydon was ordered to pay one-half of the claimant’s costs, subject to detailed assessment if not agreed. The judge urged the parties to agree the figure and avoid further costs.