PW & Ors v Luton Borough Council

The court may make a costs order against a third party where that party’s conduct has unnecessarily or unreasonably increased the claimant’s costs. The discretion under section 51 of the Senior Courts Act 1981 is broad and is governed by what is just in the circumstances. Exceptionality is not a prerequisite. In a Human Rights Act damages claim connected with care proceedings, unreasonable delay by the Legal Aid Agency in deciding whether the statutory charge applies may justify an order for the additional costs caused by that delay.

The claimants sought approval of settlements of claims under the Human Rights Act 1998. The settlements were approved, and the investment hearing was adjourned for directions. The issue decided was whether the Legal Aid Agency’s failure to determine promptly whether the statutory charge relating to the care proceedings would apply to the damages had increased the claimants’ costs.

The claimants relied on the Legal Aid Agency’s delay in making that determination and sought an order requiring it to pay the resulting additional costs. The Legal Aid Agency maintained that it required further documentation and had not yet refused to make a decision.

1. The settlements of the claimants’ Human Rights Act claims were approved. The question whether the statutory charge applied to the damages was not determined. That issue was left to the Legal Aid Agency, with directions requiring a decision by 27 September.
2. Under section 51 of the Senior Courts Act 1981, read with Parts 44 and 46(2) of the Civil Procedure Rules 1998, the court had a wide discretion to make a costs order against a non-party where that was just. The approach in Globe Equities v Globe Legal Services Ltd [1999] EWCA Civ 3023 confirmed that the case need not be exceptional. The relevant question was whether justice required the order.
3. The court accepted the guidance in H v Northamptonshire County Council [2017] EWHC 282 (Fam). The Legal Aid Agency should, where it has the necessary information, decide before the conclusion of Human Rights Act litigation whether the statutory charge is asserted, particularly where the claim is compromised and its factual basis is agreed.
4. The Legal Aid Agency had acted unreasonably. It arguably had the relevant documents in July; alternatively, it had repeatedly been offered them but did not pursue the matter promptly. It was also reminded several times of the guidance in the Northamptonshire case and failed to provide the response it had indicated would be forthcoming.
5. That conduct had increased the claimants’ costs. Applying the statutory discretion, it was just that the Legal Aid Agency should pay those additional or increased costs.