R (Naureen) v Salford CC [2012] EWCA Civ 1795 R (Dempsey) v Sutton LBC (2013) CA

The Court of Appeal is continuing to work through the application of the leading case of R(M) v Croydon LBC [2012] 1 WLR 2607 (CA) in the familiar situation in which claims for judicial review are settled midway through proceedings as a result of some change in circumstances. The first case involves a change of circumstances caused by a third party; the second a change of circumstances caused in part by the defendant itself.

In Naureen, the CA considered a case in which a fortuitous grant of leave to remain by the UKBA meant that the basis on which Salford originally refused support under s.21 NAA 1948 fell away. A consent order was agreed. Jackson LJ, whose costs reforms came into force on 1 April 2013, took a typically robust view and denied the claimants their costs. It mattered not that they had obtained permission, interim relief, and achieved their ultimate objective i.e. long-term housingand welfare benefits under s.21 NAA 1948. The favourable intervention by a third party not involved in the litigation could not be a reason to order a defendant to pay the claimant’s costs.

In Dempsey, the claimant challenged a particular placement, which was the only placement available at that time, on the basis that it would not meet her assessed community care needs. A new placement became available during the course of proceedings which the claimant accepted would meet her needs. The question of the suitability of the initial placement was therefore never litigated. The CA awarded the claimant her costs. True, the local authority had been in a difficult position because the accommodation ultimately accepted by the claimant had not become available until after the commencement of proceedings. But this was not the same kind of third party intervention that had justified the court making no order as to costs in Naureen.

COMMENT: Since the high-water mark of R (Bahta)v SSHD [2011] EWCA Civ 895, a growing line of cases is making it increasingly difficult for claimants to recover the costs of settled judicial review proceedings. The current battleground appears to be the third category of cases identified in M v Croydon LBC, namely those in which the case is settled by some compromise which does not actually reflect the claimant’s claim.

Two further features of Naureen will be of interest to practitioners. First, the claimant did not recover the costs of its successful application for interim relief, which had been reserved at the time. The CA seemed to imply that it would not have been able to intervene had the claimant applied for and been awarded its costs at the time of the application for interim relief. Practitioners might therefore be well advised to ask the Court to deal with the costs of an application for interim relief at the time of the application. Second, both parties made detailed written submissions about who would have won had the case come to trial which, predictably, the CA did not trouble itself with. A better course might be not to incur the additional costs of drafting such submissions, because the court is unlikely to take much notice in any event.