Agyemang, R (on the application of) v The London Borough of Haringey

In judicial review proceedings compromised before determination of the substantive claim, costs depend on the claimant’s actual success, not merely on obtaining interim relief. Where interim relief is obtained but substantive issues remain unresolved, the case is ordinarily one of partial success. It may therefore fall within category 2 under R (M) v Croydon LBC [2012] EWCA Civ 595, with no order for costs where the likely result at trial cannot reliably be assessed.

The claimant, a publicly funded Ghanaian national living in Haringey with her young daughter, sought judicial review of the Council’s failure to provide subsistence payments under Children Act 1989, section 17. She challenged the rationality of the refusal and delay in assessing her means, and sought interim payments together with a mandatory order concerning the assessment.

The claim was compromised by the Council’s undertaking to pay £32.50 per week until completion of the section 17(8) assessment and for two weeks thereafter. The substantive claim was withdrawn, but the parties could not agree costs. Haddon-Cave J made no order for costs. The issue on appeal was whether the claim was a category 1 case, in which the claimant was wholly successful, or a category 2 case involving only partial success under R (M) v Croydon LBC.

1. Appeal dismissed. The Court of Appeal re-exercised the costs discretion and made no order for costs, although it held that Haddon-Cave J had relied on mistaken assumptions.
2. The judicial review application was properly treated as effectively made when the papers were lodged with the Administrative Court. The claimant did not necessarily persist with the claim after receiving the Council’s undertaking. The subsequent issue and consideration of the proceedings generated no substantial additional costs beyond the issue fee.
3. The application was not confined to interim payments. It challenged the rationality of the Council’s failure to make subsistence payments and the time taken to assess the claimant’s means under Children Act 1989, section 17(8). Those issues included whether requests for further financial information were justified and whether the assessment had been delayed without good reason.
4. The undertaking compromised only the claim for interim relief. It did not determine the claimant’s entitlement to permanent funding, and the substantive allegations of unlawfulness were abandoned without adjudication. Interim relief, particularly in a lower sum than sought, did not establish that the claimant was wholly successful.
5. The case was therefore at least a category 2 case under R (M) v Croydon LBC [2012] EWCA Civ 595. Since the unresolved issues made it impossible to form a reliable view of the likely result at trial, no order for costs was appropriate.

• Court of Appeal (Civil Division): The appeal against the costs order was dismissed. The court re-exercised the discretion and made no order for costs.
• High Court, Queen’s Bench Division, Administrative Court: Haddon-Cave J made no order for costs on 17 February 2016 after the judicial review proceedings were compromised and withdrawn.
• Administrative Court: Cranston J approved a consent order on 2 November 2015 under which the Council undertook to make interim payments. The substantive judicial review application was withdrawn.