Frederick Ayinde, R (on the application of) v The London Borough of Haringey

Relief from sanctions requires consideration of the seriousness and significance of the breach, the reason for it, and all the circumstances, including efficiency and proportionality. A party that fails to file an acknowledgement of service and detailed grounds in judicial review proceedings may be debarred from participating in the substantive hearing. Costs issues ordinarily follow the substantive hearing, but a wasted costs application is a separate matter where it concerns potentially unprofessional conduct by legal representatives.

A wasted costs order requires improper, unreasonable or negligent conduct, causation of unnecessary or wasted costs, and justice in all the circumstances. Filing fictitious authorities in a pleading, failing to correct them when challenged, and describing them as minor or cosmetic errors may satisfy that test and justify both a wasted costs order and reduction of the party’s costs recovery.

The claimant sought judicial review of the London Borough of Haringey’s failure to provide interim accommodation while reviewing a homelessness decision. A County Court decision under section 204 of the Housing Act 1996 had quashed the local authority’s earlier decision.

The local authority failed to file an acknowledgement of service, detailed grounds of resistance, a timely skeleton argument and a hearing bundle. It applied for relief from sanctions and sought a wasted costs order against the claimant’s solicitors and counsel. The substantive judicial review was resolved after accommodation was provided. The issues were whether the defendant should be permitted to participate, how the judicial review costs should be assessed, and whether the claimant’s legal representatives had caused wasted costs by relying on fictitious authorities and misstating section 188(3).

1. Relief from sanctions. Applying Denton v TH White [2014] EWCA Civ. 96, the breaches were serious and significant, no good reason was provided, and the need for efficiency, proportionality and compliance with court orders did not justify relief. The application was refused.
2. Debarring from the judicial review. Under Part 54 of the Civil Procedure Rules 1998, a defendant that has not filed an acknowledgement of service and has not complied with the direction to file detailed grounds and evidence may not take part in the judicial review hearing. The defendant was therefore debarred from defending.
3. Judicial review costs. The claimant was entitled to costs on the standard basis. The court reduced the claimed sum from £21,007.97 to £13,500 because the documentation work and costs statement were excessive and disproportionate. The later finding of professional misconduct required a further reduction to £6,500.
4. Wasted costs. The application was separate from the substantive judicial review because it concerned the legal representatives’ conduct. Under section 51(6) of the Senior Courts Act 1981, CPR 46.8 and Practice Direction 46, the court found that counsel and solicitors had acted improperly and unreasonably by putting five fictitious cases into the pleading, failing to provide an explanation or correction, and characterising the errors as minor or cosmetic. The conduct caused the defendant to incur costs in investigating and raising the issue. Justice required a wasted costs order of £4,000, payable equally by counsel and the solicitors.
5. The court also held that the pleading and hearing fees attributable to the fictitious authorities should not be recovered. It ordered the transcript to be produced at public expense and sent to the Bar Standards Board and the Solicitors Regulation Authority.

The judgment describes an earlier County Court appeal under section 204 of the Housing Act 1996, at which the local authority’s homelessness decision was quashed and costs were awarded to the claimant. The present proceedings were a subsequent judicial review in the Administrative Court.