CVN, R (on the application of) v London Borough of Croydon

In a contested judicial review which the claimant wins wholly, the starting point is that costs follow the event. The court retains discretion under Civil Procedure Rules 1998, but a departure requires a sufficiently identified good reason or special circumstance. The court should not conduct a hypothetical assessment of an unargued issue merely to alter the ordinary costs result where the outcome is not tolerably clear and further analysis would be disproportionate.

Indemnity costs require conduct out of the norm or outside ordinary and reasonable litigation conduct. Late changes of position, unsuccessful arguments and inadequate support may justify standard costs, but do not automatically meet that demanding threshold.

The claimant, an unaccompanied asylum-seeking child and former relevant child, challenged the defendant local authority’s decision to end accommodation and leaving-care support. Following a contested hearing, the claim succeeded, the decision was quashed and a declaration was granted in the substantive judgment, [2023] EWHC 464 (Admin).

The parties then made written submissions on costs. The defendant sought no order for costs, or costs only from July 2022, relying on the claimant’s possible humanitarian claim. The claimant sought costs on the indemnity basis. The issues were whether the ordinary costs rule should be displaced and whether the defendant’s conduct justified indemnity costs.

1. Ordinary costs rule. The claimant was wholly successful after a contested hearing. The distinction in R (M) v Croydon LBC, [2012] 1 WLR 2607 (CA), between wholly successful claims and claims succeeding only in part applied. Costs therefore followed the event, subject to the discretion under Civil Procedure Rules 1998, r 44.2.
2. The defendant had not identified a sufficiently clear good reason or special circumstance for departing from that result. The court had not previously decided that the proposed humanitarian application was obviously hopeless or abusive. It could not safely determine that forensic hypothetical on the available material. The issue was not tolerably clear, and resolving it would require disproportionate further submissions or a hearing. The guidance in R (M) v Croydon LBC concerning cases where the court may assess hypothetical success after settlement did not justify reopening an issue that had been academic at trial, particularly since this claim had proceeded to judgment. The approach was consistent with R (MH (Eritrea)) v Secretary of State for the Home Department, [2023] 1 WLR 482.
3. The defendant’s conduct supported the ordinary costs order. It had failed adequately to support the claimant in pursuing a humanitarian application, despite the corporate-parent duty explained in R (GE (Eritrea)) v Secretary of State for the Home Department, [2014] EWCA Civ 1490. It had also advanced, and only very late abandoned or lost, arguments concerning Nationality, Asylum and Immigration Act 2002, Sch 3 para 3 and the proportionality of interference with the claimant’s education rights under the European Convention on Human Rights.
4. Indemnity costs. The defendant’s shifting positions and unsuccessful arguments were suboptimal but did not amount to conduct out of the norm or outside ordinary and reasonable conduct of proceedings, as described in Excelsior Commercial and Industrial Holdings Ltd, [2002] EWCA Civ 879, and Esure Services Ltd v Quarcoo, [2009] EWCA Civ 595. Indemnity costs would be unjust and disproportionate.
5. The defendant was ordered to pay the claimant’s costs on the standard basis. Detailed assessment of the claimant’s publicly funded costs was directed.

The judgment was a costs determination following the substantive judicial review judgment, [2023] EWHC 464 (Admin), in which the claimant succeeded and the challenged decision was quashed. No appeal stage is stated.