RS, R (On the Application Of) v London Borough of Brent

In settled judicial review proceedings, costs depend on the substance of the outcome, not technical differences between pleaded relief and the order made. A claimant who has achieved essentially all realistically available relief is a category (i) case under M v Croydon LBC [2012] 1 WLR 2607: costs ordinarily follow, absent a good reason to depart. A policy of encouraging settlement is not, by itself, such a reason. Withholding costs may instead discourage settlement and impede access to justice. Classification under the M categories contains an element of legal principle. An appellate court may therefore intervene where the first-instance costs judge misapplies that principle, while remaining cautious about factual and discretionary assessments.

The appellant, whose non-physical conditions made walking difficult, sought judicial review of the refusal by the respondent local authority to grant him a Blue Badge without requiring a physical mobility assessment. He also sought damages for breach of Article 8 of the ECHR. The authority subsequently agreed by Consent Order to provide the badge and transferred the damages claim to the County Court, but the Order made no provision for costs. The Deputy High Court Judge made no order as to costs, treating the case as falling within category (ii) or (iii) of the framework in M v Croydon LBC [2012] 1 WLR 2607. The appeal concerned the correct classification, the relevance of settlement policy, and the scope of appellate review of the costs decision.

1. Disposition. The appeal was allowed. The appellant was entitled to the costs of the judicial review proceedings.
2. Costs framework. The categories identified in M v Croydon LBC [2012] 1 WLR 2607 distinguish between a wholly successful claimant, a claimant who has succeeded only in part, and a compromise which does not reject the claim. In the first category, costs ordinarily follow the event, whether success results from a contested hearing or settlement, unless there is a good reason to depart.
3. Substance of the outcome. In public law proceedings, the court must identify who won by examining the substance and realities of the case. Relevant considerations include what was sought, the basis on which it was sought and opposed, and what was realistically achievable. Technical differences between the relief pleaded and the order obtained do not determine the result. Remittal may itself be a substantial achievement and the best remedy available: R(Tesfay) v Home Secretary [2016] EWCA Civ 415.
4. Application. The appellant’s practical objective was to obtain a Blue Badge without undergoing the disputed mobility assessment. The Consent Order achieved that objective and transferred the damages claim to the County Court. The appellant therefore won in substance and the case was category (i), not a nil-all draw.
5. Policy and appellate review. Encouraging settlement is not, without more, a sufficient reason to deprive a successful claimant of costs. A no-order may itself discourage settlement and may deter vulnerable persons and their advisers from enforcing rights. Although an appellate court should be cautious about interfering with rough-and-ready factual assessments, classification under the M framework has legal content. An error in applying its principles is an error of law permitting appellate intervention. The approach in R(Parveen) v Redbridge LB [2020] EWCA Civ 194 was applied.
6. Merits. It was unnecessary to decide finally whether the authority’s construction of the Disabled Persons (Badges for Motor Vehicles) Regulations 2000 was correct. Green LJ nevertheless expressed the provisional view that a purposive construction covered genuine walking impediments caused by non-physical disabilities and that the later amendment was clarificatory. Newey LJ agreed with the result and the essential reasoning but expressly formed no view, even provisionally, on that construction.
7. The court also observed that rigorous internal administrative review by a fresh and independent decision-maker may reduce disputes and appeals.

• Court of Appeal (Civil Division) allowed the appeal and ordered that the appellant receive the costs of the judicial review proceedings: [2020] EWCA Civ 1711.
• Queen’s Bench Division, Administrative Court made no order as to costs after the judicial review claim was compromised by Consent Order.