Settling Public Law Claims: A Victory for Common Sense

01 Jan 2018

Housing, Public Law and Judicial Review

London Borough of Croydon v Vanda Lopes QB/2016/0172

A Judge had held that, following the compromise of an appeal brought under section 204 of the Housing Act 1996, the effect of the judgment of Lord Neuberger in Regina (M) v Croydon London Borough Council [2012] EWCA Civ 595 [2012] 1 W.L.R. 2607 at paragraph [61] was that the applicant (the Respondent on the appeal to the High Court) should be awarded her costs because Croydon Council had agreed to make a fresh decision on her homelessness application and she had therefore received the relief sought. Croydon argued that such an award of costs was not the correct order where, as here, new evidence, not submitted until after a homelessness review decision had been made and appealed, rendered the outcome of that appeal academic. Furthermore where,  as in the present case, the appeal had been withdrawn (pursuant to a consent order), and a local housing authority maintained that it would have won the appeal had it not been compromised, but where that authority had agreed to carry out a fresh review (to avoid the need for the parties to incur the costs of an appeal only for a fresh homelessness application to be made containing the new evidence in any event), the appropriate order was that the Council should be awarded its costs.

In allowing the appeal and setting aside the order at first instance Mr Justice Lewis held:

(1) The Judge at first instance was wrong to hold that the Council would have failed to establish that it had failed to make proper inquiries should the appeal have been effective (paragraph [27]);

(2)  Where the parties have agreed on the disposition of the underlying appeal and the issue is whether or not costs should be awarded to either party, the precise approach depends upon the particular facts and circumstances of the case. Where a party has obtained the entire relief sought on the statutory appeal, so that that party can be said to be wholly successful, then, in general, that party should recover his or her costs unless there is some good reason to depart from that position. Where a party has succeeded in part, then a number of factors may be relevant as explained in paragraph 62 of the decision in R (M) v Croydon London Borough Council. In such circumstances, it may be appropriate to make no order for costs, or, if it is reasonably clear who would have succeeded if the appeal had gone to a hearing, that may indicate that that party should be awarded his or her costs. Where a settlement is reached which does not in fact reflect the claimant’s claims, it may be possible in some cases to consider the underlying claims and determine who would have been the successful parties and award costs accordingly. In other cases, that may not be possible and it may be that the appropriate order is no order for costs. It may be that the appropriate order is no order for costs where the judge cannot sensibly and fairly make an order in favour of either party without a disproportionate expenditure of judicial time: per Lord Neuberger M.R., as he then was, at paragraphs 60 to 65 and per Stanley Burton L.J. at paragraph 77 in R (M) v Croydon London Borough Council. (paragraph [30])

(3)  Practice Direction 52A at paragraph [6] provides that an appellant who does not wish to pursue an application or appeal may request the appeal court to dismiss the application or the appeal. If such a request is granted it will usually be subject to an order that the appellant pays the costs of the application or appeal. If the appellant wishes to have the application or appeal dismissed without costs, his request must be accompanied by a letter signed by the respondent stating that the respondent so consents. Where a settlement has been reached disposing of the application or appeal, the parties may make a joint request to the court for the application or appeal to be dismissed by consent. If the request is granted the application or appeal will be dismissed. (Paragraph [31])

(4)  Against that background:

(i) The relief obtained by the appellant, Ms Lopes, was in large part the relief that she sought, namely withdrawal of the review decision and a fresh decision.

(ii) However, the reason for the Council agreeing to that outcome was that Ms Lopes had provided new evidence, in the form of the letter from her mother-in-law, after the institution of the appeal. As that letter revealed relevant new facts, it would in any event be sufficient to enable her to make a fresh application for housing assistance: see Rikha Begum v Tower Hamlets London Borough Council [2005] 1 W.L.R. 2103.

(iii) In those circumstances, irrespective of the outcome of the appeal against the review decision of 13 May 2014, the Council would have to conduct the necessary inquiries under section 184 of the Act and determine afresh whether, on the basis of the new information and any other information obtained, any duty was owed to Ms Lopes under the Act. It was sensible and appropriate, therefore, for the Council to indicate that it would be prepared to withdraw the review decision and reconsider the matter, rather than fight the appeal and then, even if it won, entertain a further application for housing assistance. In reality, that factor indicates either that Ms Lopes had not obtained the relief she sought in the appeal because she was likely to succeed (and therefore, the premise for awarding her the costs of the appeal disappeared) or, in any event, that factor would justify departing from any assumption that she ought to be awarded the costs on the basis that she had obtained the relief she sought.

(iv) Furthermore, this was not one of those cases that occur in judicial review where the claimant sends a letter before claim in accordance with the relevant protocol and the time for the respondent to determine whether or not to fight or simply agree to reconsider the matter is at that stage, not after proceeding are issued (see the observations of Lord Neuberger M.R. in R (M) v Croydon London Borough Council at paragraph [55]). Here the appellant, Ms Lopes did not provide any new material until after instituting the appeal. The Council could not have avoided the costs of the appeal by agreeing to entertain a fresh application for assistance (or by agreeing to withdraw the review decision) as the appeal had been instituted before that information was produced.

(v) In any event, the Council would have succeeded in resisting the appeal against the review decision of 13 May 2014 and would have been the successful party. The reason why it agreed to withdraw the review decision, and take a fresh decision, was because Ms Lopes produced new material after the institution of the appeal which indicated that, even if the Council won the appeal, they would have to entertain a fresh application for housing assistance, and make fresh inquiries under section 184 of the Act. In those circumstances, the appropriate order was that Ms Lopes pay to the Council the costs of the appeal (subject to any protection to which she was entitled by reason of the fact that she is a publicly funded litigant) (paragraphs [32]-[35])

(5)  Finally, “As a minimum, the fact that the actions of an appellant have rendered the appeal academic may be a good reason for not awarding an appellant any costs. Whether that would also justify ordering the appellant to pay the respondent’s costs may depend upon a number of matters (including the provisions of the CPR, the Practice Direction and the particular facts of the case).” Although, given the conclusion at paragraph [35] it was not necessary to provide a concluded view on that issue on the facts of this case. (paragraph [36]).

Accordingly, the appropriate order in all the circumstances was that Ms Lopes, be ordered to pay the costs (subject to any protection to which she is entitled by reason of the fact that she is publicly funded).

Click here to view the judgment. David Lintott appeared for successful Appellant, the London Borough of Croydon.  Click here to see a summary of the earlier Court of Appeal decision in this and three other related decisions at [2016] EWCA Civ 465 where it was held, in granting permission, that the correct route of appeal in such a costs only appeal was to the High Court. Click here to see the Weekly Law Report of that decision at [2016] 1 W.L.R 3138.