Hunt v North Somerset Council

The Supreme Court considered an appeal about the form of disposal and costs following judicial review proceedings in which the Court of Appeal had found that the respondent council had failed to discharge statutory duties under section 149 of the Equality Act 2010 and, on the assumption that it applied, section 507B of the Education Act 1996, but had refused to grant the quashing relief sought because the relevant budget year had passed.

The court held that there is no absolute duty on a court to make a declaratory order of its own initiative where a party has not sought one, though a declaration is often appropriate where a public body has acted unlawfully. On costs, the Supreme Court found that the Court of Appeal erred in treating the council as the successful party and, for public law and policy reasons, substituted an order that the appellant recover two thirds of his costs at first instance and in the Court of Appeal and two thirds of his costs in the Supreme Court, to be assessed if not agreed.

Background and parties: The appellant, a qualifying young person for the purposes of section 507B of the Education Act 1996 and a person with a protected characteristic under the Equality Act 2010, challenged North Somerset Council's approval of a reduced youth services revenue budget for 2012/13. He sought declarations of failure to comply with section 149 of the Equality Act 2010 and section 507B of the Education Act 1996 and an order quashing the budget decision.

Procedural history: At first instance Wyn Williams J dismissed the claim ([2012] EWHC 1928 (Admin)). The Court of Appeal ([2013] EWCA Civ 1320) accepted the appellant's substantive arguments under section 149 and proceeded on the assumption that section 507B applied, but refused to grant the quashing order sought and dismissed the appeal. The Court of Appeal subsequently made a costs order ([2013] EWCA Civ 1483) awarding the council half its costs of the appeal.

Issues before the Supreme Court: (i) whether the Court of Appeal should have made a declaratory order to reflect its findings of illegality despite refusing mandatory or quashing relief; and (ii) whether the Court of Appeal erred in its approach to costs when it treated the council as the successful party.

Court's reasoning and decision: The Supreme Court held that a court is not obliged to make a declaratory order of its own motion where experienced parties have not sought one, although it is commonly appropriate to grant a declaration where a public body has acted unlawfully. On costs, the court emphasised the public-law character of judicial review and the significance of the appellant's success on the substantive issues he was granted permission to argue. The Court of Appeal was found to have erred in principle by treating the council as the successful party; the lapse of time that made quashing relief impractical did not of itself justify depriving a successful challenger of costs. For these reasons the Supreme Court allowed the appeal as to costs, set aside the Court of Appeal's costs order and substituted an order that the appellant recover two thirds of his costs at first instance and in the Court of Appeal, and two thirds of his costs in the Supreme Court (to be assessed if not agreed), subject to a seven day period for submissions on the form of order.

Wider implications: The judgment underscores that successful public law challengers who establish unlawful conduct by public bodies will generally be entitled to recover reasonable costs unless good reasons are shown to the contrary, and it clarifies that the absence of practical benefit from the substantive ruling (because the relevant period has passed) does not automatically defeat a costs award in their favour.

Appeal allowed in relation to costs. The Supreme Court held that the Court of Appeal was not obliged to make a declaratory order of its own initiative where none was sought, but that it erred in principle by treating the council as the successful party for costs purposes. The Court set aside the Court of Appeal's costs order and substituted an order that the appellant recover two thirds of his costs at first instance and in the Court of Appeal and two thirds of his costs in the Supreme Court, to be assessed if not agreed, and allowed seven days for submissions on the form of order.

First instance: Wyn Williams J, claim dismissed, [2012] EWHC 1928 (Admin). Court of Appeal: Rimer LJ (with Moore-Bick and Underhill LJJ) upheld substantive points under section 149 and on assumption section 507B but refused quashing relief and dismissed the appeal, [2013] EWCA Civ 1320. Court of Appeal costs judgment: [2013] EWCA Civ 1483 (awarding half of the council's costs). Supreme Court: appeal on form of order and costs allowed, [2015] UKSC 51.