RL & Ors v The London Borough of Croydon

Where judicial review proceedings settle, success for costs purposes depends on whether the claimant’s claim was vindicated. Obtaining relief similar to that sought does not suffice where a distinct process produced the outcome independently of the proceedings.

A court may consider how the outcome was achieved and, where there is no clear winner, whether it can determine without disproportionate effort who would probably have succeeded. Under Children Act 1989 section 17, a local authority must undertake an appropriate assessment where a child appears to be in need. The section’s general duty does not, however, confer an individually enforceable right to accommodation or other particular services, even after a need has been assessed.

The appellants, a mother and three children, sought judicial review of Croydon’s alleged failure to provide accommodation under section 17 of the Children Act 1989 and its delay in completing a child-in-need assessment. Croydon was already conducting the assessment. After proceedings began, the assessment recommended temporary accommodation, which Croydon provided.

Garnham J refused permission on paper. The renewed application was later withdrawn by consent, leaving costs to be determined on written submissions. Judge Gill made no order for costs, apart from a minor amendment to Garnham J’s costs order. The appellants appealed, contending that they had obtained the substance of the relief sought and that excessive weight had been placed on the paper refusal of permission. The central question was whether the costs decision disclosed a ground permitting appellate interference.

1. Appeal dismissed unanimously. Underhill LJ supplied the reasoning expressly adopted by Jackson LJ. Moylan LJ reached the same outcome by a substantially similar route.

2. The appellants were not the successful parties under the principles in R (M) v Croydon London Borough Council [2012] 1 WLR 2607 and R (Tesfay) v Secretary of State for the Home Department [2016] 1 WLR 4853. The court must ask whether the claimant’s claim was vindicated. It may examine how the outcome was achieved where a distinct process might have produced it independently of the proceedings. The assessment would have been completed in any event, and there was no basis for finding that the proceedings caused it to be completed substantially sooner.

3. Section 17 of the Children Act 1989 imposes a general duty and may require a local authority to undertake an assessment. It does not confer on an individual child an enforceable right to accommodation or any other particular service. R (G) v Barnet London Borough Council [2004] 2 AC 208 therefore showed that the claim, insofar as it asserted an entitlement to accommodation, had little substance.

4. Underhill LJ considered that Garnham J’s paper refusal of permission was a serious obstacle but was not necessarily definitive because the appellants had sought an oral renewal which subsequent events superseded. A costs court could form its own summary view of the merits. It could not, however, conduct the equivalent of a full trial merely to determine costs.

5. For costs to be awarded on the alternative basis advanced by Underhill LJ, the court would need sufficient confidence both that the authority was legally obliged to complete the assessment before proceedings began and that issuing proceedings was reasonable. The first element was not established. A section 17 assessment is a serious exercise requiring information from several sources. A court should be slow to infer unlawful delay merely from a missed benchmark or sub-optimal performance, particularly where the delay was not gross and responsibility for it could not proportionately be resolved on a costs assessment.

6. Although the appellants’ solicitors had acted reasonably in issuing proceedings if their assumption of unlawful delay were correct, that could not justify costs without establishing the assumption. The importance of proper remuneration for publicly funded work was acknowledged, but it supplied no principled basis for a different costs order.

1. Court of Appeal (Civil Division): The appeal from Judge Gill’s costs order was dismissed. Underhill LJ’s reasons commanded the express agreement of Jackson LJ; Moylan LJ agreed in the result.

2. Administrative Court, Judge Gill: Following settlement of the judicial review claim, the judge made no order for costs, subject to a minor amendment reflecting the appellants’ legally aided status.

3. Administrative Court, Garnham J: Permission to seek judicial review was refused on paper and a costs order was made concerning Croydon’s acknowledgement of service. The appellants sought oral renewal, but the proceedings were withdrawn by consent before renewal was determined.