C, R (on the application of) v The London Borough of Islington

In public law proceedings, costs remain governed by the ordinary civil procedure rules. The successful party is ordinarily entitled to its costs, but the court must assess success in the litigation as a whole and in a common-sense manner. Failure on individual issues does not automatically require a reduction. A different order may be justified where substantial resources were devoted to unsuccessful issues. Where practicable, a percentage reduction may be preferable to an order limited to distinct issues. The court awarded the successful claimant 60% of her costs and a payment on account.

The judgment concerned costs following an earlier decision in which the claimant obtained a declaration and an order quashing the defendant local authority’s review decision. She had pursued three grounds. She succeeded on the lawfulness of the authority’s practice of making direct accommodation offers under its housing allocation scheme, but failed on grounds concerning welfare points and a local lettings policy.

The claimant sought her costs in full. The defendant argued that it should receive its costs, or that there should be no order for costs, because the claimant had failed on two of the three grounds. The issue was the appropriate order under CPR 44.2.

1. The claimant was the successful party. Success was assessed by considering the litigation as a whole. The claimant had obtained significant substantive relief, including a declaration that the defendant’s direct-offer practice was unlawful and an order quashing the review decision.
2. Public law proceedings remain subject to the Civil Procedure Rules 1998. The fact that the defendant was a public authority did not displace the ordinary principle that a successful claimant is entitled to costs.
3. The court applied the common-sense approach summarised in HLB Kidsons (a firm) v Lloyd’s Underwriters (Costs) [2007] EWHC 2699. There is no automatic rule requiring a successful party’s costs to be reduced merely because it lost on one or more issues. Nevertheless, the court could take account of the considerable resources devoted to issues on which the claimant failed.
4. The defendant’s late disclosure of its direct-offer practice was relevant. The successful ground could not reasonably have been raised earlier, while the other grounds were likely to have been pursued in any event. The claimant therefore remained the successful party, but a substantial reduction was appropriate.
5. Under CPR 44.2, a percentage order was practicable and preferable to an order relating only to a distinct part of the proceedings. The defendant was ordered to pay 60% of the claimant’s costs, subject to detailed assessment if not agreed, together with £30,000 on account within 21 days.

The judgment determined the costs issue following the court’s substantive judgment handed down on 31 May 2017. No separate appellate history is stated.