CITY OF WOLVERHAMPTON COUNCIL & Ors. (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

In a withdrawn or academic judicial review, the costs decision is determined by the court’s discretion to do justice between the parties after a reasonable and proportionate assessment of the circumstances.

A policy change does not, without more, establish that the claimant achieved the relief sought, that the claim caused the change, or that the earlier policy was unlawful. The court must distinguish a policy outcome produced by a wider merits-based process from a decision taken to concede an individual claimant’s entitlement. Litigation timing may be relevant, but it is not decisive. The court may also consider the parties’ conduct, disclosure and compliance with procedural obligations. On the facts, neither side established a sufficient basis for a costs order.

The claimants, seven West Midlands local authorities, brought judicial review proceedings challenging the defendant’s policy of mandating asylum dispersal in areas of local authorities which had withdrawn from voluntary participation. They sought to quash the policy and prohibit its continued application.

Before the rolled-up hearing, the defendant adopted a new policy requiring asylum dispersal in the areas of all local authorities. The claim was withdrawn by consent, with written submissions on costs. The claimants argued that the new policy substantially achieved the relief sought and that the litigation had caused the change. The defendant argued that the claim had been overtaken by events and that the new policy resulted from a wider policy process addressing accommodation supply and demand.

The central issues were whether the claimants should be treated as the successful party, whether the judicial review caused or materially contributed to the policy change, and whether either party’s conduct justified a costs order or indemnity costs.

1. Disposition. There was no order as to costs. Each party was to bear its own costs, including costs incurred after 13 April 2022.
2. The court’s task was to do justice between the parties through a reasonable and proportionate analysis of the circumstances, applying the approach reflected in R (M) v Croydon LBC and R (Bahta) v SSHD. A claimant is not automatically entitled to costs merely because a disputed policy has subsequently been replaced.
3. The new policy took the place of the policy challenged, and its adoption provided a broader sense of vindication. However, the claim as formulated challenged the imposition of dispersal on former volunteering authorities. It did not directly seek an order requiring a mandatory dispersal policy covering every local authority. The outcome was therefore not the relief actually sought.
4. The policy change arose from a wider and pre-existing merits-based process. The evidence showed consideration of accommodation supply, demand, asylum intake, the position of non-volunteering authorities and representations from the Local Government Association. The judicial review claim was part of the context, but it did not cause or materially contribute to the adoption of the new policy.
5. The reasoning in R (Bahta) v SSHD, concerning individual entitlement and settlements said to be made for purely pragmatic reasons, was materially distinguishable. This case concerned a broad policy decision rather than recognition of an existing individual legal entitlement. The adoption of a replacement policy did not establish that the former policy had been unlawful, and the court could not determine which party would have prevailed on the substantive grounds.
6. The court also considered disclosure, procedural defaults, correspondence and the parties’ conduct after the policy announcement. Those matters did not justify ordering either party to pay the other’s costs, including the defendant’s proposed costs after 13 April or 27 April 2022.