R(TH) v East Sussex CC [2013] EWCA Civ 1027

FACTS: The Claimant disputed his age assessment. Following the grant of permission, the local authority offered to carry out a new age assessment. The Claimant refused the offer as he insisted on the assessment being carried out by an independent social worker together with a social worker employed by the local authority. Six months later the local authority relented and appointed an independent social worker to carry out the fresh age assessment. Upon reassessment, both social workers accepted the claimant’s claimed age. The trial judge allowed the claimant’s costs up to the date of the first offer and made no order as to costs thereafter. The Claimant appealed on grounds that he had obtained all the relief he was seeking and should thus receive all his costs: R(M) v Croydon LBC [2012] EWCA Civ 595.

JUDGMENT: The debate focussed on whether the claimant ought to have accepted the local authority’s first offer and, in particular, on whether there was any material difference between the two offers. Jackson LJ, giving the robust judgment of the Court, was strongly of the view that the claimant ought to have accepted the earlier offer. He observed that there was a “high duty on both parties to public law litigation to take advantage of any reasonable and sensible opportunity for settlement which presents itself.” There was no material difference between the two offers: all social workers could be expected to give a professional, independent opinion. Indeed, that had occurred in the present case where the independent and the LA social workers had accepted the Claimant’s claimed age.

COMMENT: The major lesson of TH (Iran) is that claimants will not be permitted to hold out for goldplated relief, but will be expected to accept reasonable offers of settlement in order to avoid the running up of costs. It remains to be seen whether the “high duty” on both parties to accept reasonable offers of settlement will significantly limit the rule in R(M) v Croydon LBC that claimants should receive their entire costs if they obtain all the relief they are seeking. But at the very least, the Court’s increased expectations with regard to settlement will require both claimants and defendants to give more thought to the terms on which offers are made and accepted/refused.