Hunt v North Somerset Council

Where a public body has acted unlawfully but coercive relief is inappropriate, a court will usually make a declaratory order reflecting its finding. A declaration is not obligatory, however, where a represented claimant has not sought one.

A judicial-review claimant who succeeds after fully contested proceedings in establishing unlawfulness will ordinarily recover reasonable costs. The absence of practical relief because events cannot be unwound does not make the defendant the successful party. Costs may nevertheless be reduced to reflect unsuccessful, unnecessarily wide or unrealistic aspects of the claim.

Hunt v North Somerset Council concerned a judicial-review challenge to the council’s approval of its 2012/13 youth-services budget. The claimant, a disabled young person, alleged breaches of section 149 of the Equality Act 2010 and section 507 B of the Education Act 1996.

The High Court dismissed the claim: [2012] EWHC 1928 (Admin). The Court of Appeal accepted both substantive grounds, but refused a quashing order because the financial year had passed, dismissed the appeal and ordered the claimant to pay half the council’s appeal costs: [2013] EWCA Civ 1320; [2013] EWCA Civ 1483.

The Supreme Court considered whether the Court of Appeal should have made a declaration and whether its costs orders were correct.

Appeal allowed unanimously. Lord Toulson gave the judgment, with which Lady Hale, Lord Wilson, Lord Reed and Lord Hughes agreed.

1. The Court of Appeal was not required to make a declaration of its own motion. Although a declaration will usually be appropriate where unlawfulness has been found but no mandatory, prohibitory or quashing order is suitable, there is no absolute rule. The claimant had not sought declaratory relief in the lower courts, despite experienced representation. Its absence did not alter the legal effect of the Court of Appeal’s judgment, which had itself found the council to have acted unlawfully.

2. The Court of Appeal erred in treating the council as the successful party for costs. The claimant had succeeded on the two substantive statutory issues after fully contested proceedings. The fact that it was then too late to undo the expired budget did not turn that substantive success into failure, particularly as the delay did not arise from any fault by him.

3. Public-law litigation addresses public wrongs as well as private interests. The ruling under section 149 of the Equality Act 2010 gave local authorities generally an important lesson about committee members’ discharge of the equality duty. A claimant permitted to pursue judicial review who establishes unlawfulness will normally recover reasonable costs unless a good reason justifies a different order.

4. The claimant’s wide first-instance challenges, including the challenge to the adequacy of equality impact assessments, and his unrealistic continued pursuit of a quashing order justified a reduction rather than a refusal of costs. The Court set aside the Court of Appeal’s order and substituted an order that he recover two thirds of his costs at first instance and in the Court of Appeal. It further indicated that he should recover two thirds of his Supreme Court costs, subject to seven days for written submissions on a different order.

• United Kingdom Supreme Court: Allowed the appeal, set aside the Court of Appeal’s costs order, and substituted orders awarding the claimant two thirds of his costs at first instance and on appeal: [2015] UKSC 51.
• Court of Appeal: Upheld the claimant’s substantive complaints concerning the statutory duties, but refused relief, dismissed the appeal, and ordered him to pay half the council’s appeal costs: [2013] EWCA Civ 1320; [2013] EWCA Civ 1483.
• High Court (Administrative Court): Dismissed the judicial-review claim and made a costs order in the council’s favour, subject to a restriction on enforcement without further permission: [2012] EWHC 1928 (Admin).