Not a Good Idea

One to be filed under ‘Do not do this, ever’.

R (Grimshaw) v LB Southwark [2013] EWHC 4504 (Admin) [Not on Bailii, I've seen a transcript]

This started out well enough, as a judicial review claim of Southwark’s decision to terminate temporary accommodation. Soon after issue and interim relief had been granted, Southwark entered into discussions and, on 10 December 2012, an offer of accommodation was made to and accepted by the Claimant. Thus, one would have thought, the claim was effectively settled and its purpose fulfilled.

Nobody told the Admin Court. On 19 December 2012, the claim was given permission on the papers, with no update on the situation having been provided.

The Claimant’s solicitors, Gans & Co, then appear to have had a bit of a brainwave. Instead of telling the Court that the claim was disposed of, on:

10 January 2013 they gave notice on the claimant’s behalf that the claimant intended to make a claim for damages. This claim was said to arise in circumstances where the claimant had apparently been over paid housing benefits while housed in temporary accommodation which, following the defendant’s decision to terminate her temporary accommodation, she was now having to pay back. The suggestion, apparently, was that she had a claim for damages for having to repay the housing benefits which she had received in excess of the amounts to which she was entitled.

On 26 April, the Court order that the matter be listed for disposal unless the Claimant provided a consent order or notice of withdrawal in 14 days. The Court was still none the wiser.

Gans & Co sent a draft consent order to Southwark to withdraw the claim, then promptly withdrew that offer and maintained that the claim for damages continued. And so in July 2013, the claim was heard for disposal. Southwark applied for a wasted costs order against Gans & Co.

The purported damages claim got short shrift.

That was a manifestly spurious claim to attempt to argue within these judicial review proceedings for two reasons. In the first place it was a different claim from the original claim for judicial review for which permission to proceed had been given; and secondly the claim only has to be stated for it to be apparent that it had no realistic prospect of success.

And so to the wasted costs application. Counsel for Gans & Co, instructed the previous evening, did his best, arguing that

in substance, that the claimant was not prepared to consent to her claim for judicial review being withdrawn and wished to pursue the housing benefit claim, and his instructing solicitors went along with that.

That did not go down well:

That answer is, I am bound to say, a wholly inadequate one for Gans & Co to put forward. In the first place, and particularly when acting for a legally aided client, a solicitor has a duty to the legal aid fund and the court not to maintain spurious litigation simply because the client wishes that to be done. They should have, if necessary, ceased to act and certainly reported the matter to the legal aid authorities rather than continued in pursuit of an obviously hopeless claim. Secondly, that answer does not explain the failure of Gans & Co to answer correspondence or to engage in any meaningful discussion with the defendant’s solicitors over the period of months which have elapsed since 10 January when the issue of housing benefit was first raised, or certainly since the consent order was sent in draft and then withdrawn in May.

Since then, Gans & Co have failed to take any steps either to withdraw the claim or, if necessary, remove themselves from acting on the claimant’s behalf, did not inform the court of the position and did not respond to correspondence from the defendant until, I am told, Monday of this week when finally instructions were obtained and it was indicated on the claimant’s behalf that the claim would no longer be pursued.

The Court was satisfied that the three requirements for a wasted costs order had been met.

firstly that the legal representative has acted improperly, unreasonably or negligently – and for the reasons given I am quite satisfied that that requirement is met in this case. Secondly, that such conduct caused the applicant for a wasted costs order to incur unnecessary costs; as I have already explained that happened in this case. Third, that it is in all of the circumstances just to order the legal representative to compensate the applicant for the whole or part of the relevant costs.

In my view it is entirely just that Gans & Co should pay costs here. They have wasted not only time spent by the defendant’s solicitors and counsel, but the time of the court, including the hearing today, which would have been wholly unnecessary if they had acted reasonably and professionally in conducting this litigation. I consider that the costs should be awarded on the indemnity basis to mark the unreasonable nature of the conduct of Gans & Co.

Attempts to argue over specific costs and rates were batted away and a wasted costs order of £6,049.63 made.

Ouch. The lesson being that this is the kind of bright idea it is better not to have, or to explain to the client that it is not a bright idea at all.

Posted in FLW case note, Homeless, Housing law - All and tagged , , . RSS feed for this post and comments.

About

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

3 Comments

  1. Charles Hancock
    Posted 23/04/2014 at 3:25 pm | link to comment

    I suspect this is the tip of an iceberg, and I commend the Council for having the tenacity to pursue a wasted costs order. I’m sure there are many similar cases where the Council just writes it off.

    The conduct of Gans & Co in pursuing such an absurd claim was disgraceful, and the fact that it was pursued using public funding simply adds insult to injury. Thank you for reporting the case and I shall certainly be bringing the case to the attention of the relevant legal aid authority in the (probably vain) hope that some form of sanction will be applied.

    • Posted 23/04/2014 at 3:33 pm | link to comment

      You may suspect away, but it isn’t the tip of the iceberg. Or we would be reporting lots more cases like this one. On the whole, it is better to have evidence for your prejudices, or you just look, well, prejudiced.

  2. J
    Posted 23/04/2014 at 7:09 pm | link to comment

    Or a member of UKIP. And no-one wants to look like one of those. Bad teeth, the lot of them.

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