This is a brief note on a recent High Court appeal dealing with the issue of costs on withdrawn s.204 appeals (Unichi v LB Southwark 16/10/13-from a Lawtel summary, not on Bailii).
The Local Authority discharged its duty towards Ms U under s.193(6)(b) of the Housing Act 1996 after she had been evicted from her temporary accommodation for rent arrears. The finding of intentional homelessness was reviewed and during the review process, Ms U’s solicitors alerted the Council to the fact that Ms U had learning difficulties and that a psychologist’s report would be obtained. The review was completed before the report was issued and Ms U appealed to the County Court. The Council offered to carry out a fresh review, the appeal was withdrawn but there was no agreement about costs. The County Court judge made no order because the Council had put forward a number of cogent reasons why the appeal might have failed.
Andrews J allowed an appeal on the costs issue. Following M v Croydon, the starting point where the applicant had obtained the relief she was seeking was that she was entitled to her costs. It was not appropriate for the judge to enquire into the reasons for compromise or the merits of the appeal. There were no special circumstances justifying a departure from the general rule. It might have been otherwise if the Authority had been taken by surprise by the report but that was not the case here as the Authority had been placed on notice of it and it was relevant to the issues raised on review.
Comment: this case follows on neatly from the case of Emezie which we reported a few months ago (our note here). The Emezie judgement followed a similar course in the context of judicial review and it is helpful to see the same principles derived from M v Croydon being applied to s.204 appeals.
Sorry if I am being dense here, but I am having difficulty understanding the post. Ms U has been granted leave to reinstate the appeal she had withdrawn ? (because the review was unsatisfactory ?), she has been allowed an appeal to get back to the point where she can request costs or she is allowed to ask for costs and it will be for the council to explain why she should not get them (ie the onus of ‘proof’ is on them).
The post is interesting but I don’t understand the current state of play.
The appeal to the High Court was on costs alone. The s.204 appeal was rendered academic in substance when the Council agreed to carry out a fresh review. The Council would not agree costs, so it went to the first instance Judge. The first instance Judge made no order as to costs. That decision was appealed, apparently to the High Court (though I understand that it was understandably first made to the Court of Appeal, who for some reason declined jurisdiction). The High Court reversed the costs decision.
Perhaps the words “further appeal” in the 3rd para were causing confusion? I’ve amended it now. As for the question of the Court, I suspect the CA declined jurisdiction because Art.5 of the Access to Justice Act (Destination of Appeals Order) 2000 did not apply for once (because there was no hearing of the appeal), which meant Art.3 kicked in and the appeal was transferred to the HC.
Southwark only have themselves to blame for not waiting for the psychologist’s report, which was relevant to the decision under review. Nonetheless, there is plainly a difference between M and Emezie and s.204 appeals. In the former the local authorities would presumably have received a pre-action letter and so were aware of the issues in dispute. They could then decide what to do about it.
In most (if not all) s204 appeals, the first the local authority will know about the appeal is when it’s too late to do anything about it. The appeal has already been lodged. Unless and until there is a similar pre-action protocol for 204 appeals, why should a local authority be penalised for withdrawing a review, if they do so at the first opportunity.
The local authority should at least be told the generality of what the appeal is about.
Some would say this is what the s.202 review procedure is for. Had Parliament intended it to be otherwise, it would have lengthened the time limit for lodging the appeal. I don’t see the distinction here as the judge is clear that had the report been raised as an issue only during the appeal, the costs order might have turned out differently.