17/05/2011

Judicial review costs redux

We’ve seen reports of a case called R (Ambrose) v City of Westminster (Admin Court 13 May 2011. Not on Bailii or reported elsewhere so far). It was a judicial review of a refusal to provide interim accommodation pending review. Westminster had apparently decided that because they had arranged housing in Hackney, it was for Hackney to carry out an assessment under s.17 Children Act 1989, rather than refer the applicant and child to its own social services department, although the child remained in school in Westminster.

An interim order to provide accommodation pending judicial review was obtained and unsuccessfully challenged by Westminster. Westminster eventually carried out a Children Act assessment and the applicant’s step-son found to be a child in need, who should not be separated from the applicant. Eventually private accommodation was offered. The JR was then academic at a pre-permission stage, leaving only the issue of costs, which Westminster didn’t concede.

At the hearing, Westminster argued Boxall (R (Boxall) v Mayor and Burgesses of Waltham Forest LBC (2001) 4 C.C.L. Rep. 258) – the correct order was no order as to costs. Westminster’s failure to carry out an assessment was an oversight and, in any event, much of the pre-action protocol stage had focussed on the homeless case. In that aspect Westminster were entitled to discharge duty under S.213A Housing Act 1996 by referring the applicant to Hackney Council.

The High Court held that:

  • Westminster had made an error of law in not assessing the Claimant’s stepson’s needs under the Children Act 1989, Westminster had a duty to undertake an assessment of a child attending one of its schools even if it had housed them in temporary accommodation outside the borough.
  • Westminster had continued to defend what it classed as an “oversight,”
  • The Claimant had referred to a duty to assess in the pre-action protocol and Westminster had spoken to the Claimant’s stepson’s school and professed to be aware of the relevant caselaw.

It was therefore appropriate to make an order for costs even though the claim had become academic at the pre-permission stage.

The MoJ’s proposed reforms on civil costs do not include implementing qualified one way costs shifting in Judicial Review, (a decision itself the subject of JR pre-action protocol steps by the Public Law Project – on which more shortly).  Pursuit of costs in settled or newly academic JRs therefore remains an important issue. The Defendant’s standard position is often that the decision at issue was simply a mistake, later corrected – or a settlement is offered on the basis of ‘taking a commercial view’ with no order as to costs as part of the offer, but it can be worth taking the costs issue further, as here.

We would be very keen to see a transcript of the judgment in this case, if one exists. This note is wholly based on another note of the case from Hardwicke Chambers.

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.

2 Comments

  1. J

    Unlikely to be one for some time (if ever) I’d have thought. Casetrack have it listed for judgment on 13.5.11; it’d have been ex tempore then. Will anyone bother getting a transcript of a pre-permission decision (and hence not capable of citation)?

    Reply
    • NL

      Fair point. But it sounded like a considered decision on costs.

      I didn’t realise it was pre-permission until near the end of Hardwicke’s note, which was annoying, as it promised more until then (and then I had to go back and add it in earlier in my note. Editing grumbles – do get the key info in up front. I couldn’t tell what the actual homeless issue was for ages).

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