Factual and Procedural Background
The appellant, referred to as Plaintiff, arrived unaccompanied in the UK from Afghanistan in March 2008 and applied for asylum, claiming to be aged 12. The Defendant, a local authority responsible under section 20 of the Children Act 1989, accepted responsibility and placed Plaintiff with foster parents and at a school. The Defendant questioned Plaintiff's age, assessing him as older than he claimed, leading to a dispute over whether Plaintiff was born in 1994 or 1996. Plaintiff's solicitors challenged the Defendant's age assessment, relying on expert reports, notably from Dr Birch, who supported Plaintiff's claimed age. The Defendant maintained their assessment, rejecting the expert's methodology. Judicial review proceedings were initiated to challenge the Defendant's decision, with the case remaining stayed pending wider consideration of age assessment issues in similar cases. Subsequent expert evidence from Dr Stern supported Plaintiff's claim. Eventually, the Defendant conceded that Plaintiff was born in 1996, effectively conceding the claim. The parties agreed on the substantive issue but left the question of costs to be determined by the court. The initial trial judge made no order for costs, leading to Plaintiff's application for permission to appeal.
Legal Issues Presented
- What is the proper approach to awarding costs in judicial review proceedings where the defendant public authority concedes some or all of the relief sought by the claimant?
- Whether the Defendant should be ordered to pay the costs of the proceedings following their concession of the substantive issue.
- How principles governing costs in ordinary civil litigation apply to judicial review cases settled by consent.
Arguments of the Parties
Appellant's Arguments
- The Judge erred in refusing to award costs because costs should follow the event where the Defendant conceded the claim.
- The outcome was clear from the outset that Plaintiff was entitled to relief, and thus the Defendant should pay costs.
Defendant's Arguments
- Appellate courts should generally not interfere with a trial judge's discretion on costs.
- It is normally wrong to award costs when a case settles unless it is clear one party would have won.
- The facts and law were unclear and evolving, justifying the decision not to award costs against the Defendant.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (M) v Lambeth LBC; R (A) v Croydon LBC [2008] EWHC 1364 (Admin) |
Jurisdiction of local authorities to assess age under section 20 is subject to judicial review. |
Established that local authority age assessments can be reviewed on Wednesbury unreasonableness grounds. |
| R (A by Valbona Mejzninin) v Croydon LBC [2008] EWHC 2921 (Admin) |
Expert medical opinion should not be rejected without sound reason. |
Supported Plaintiff's argument about the Defendant's failure to give adequate weight to expert evidence. |
| R (A) v Croydon LBC; R (M) v Lambeth LBC [2008] EWCA Civ 1445 |
Judicial review is the appropriate procedure for challenging age assessments. |
Confirmed that Plaintiff must prove Defendant's decision was irrational to succeed. |
| R (A) v Croydon LBC; R (WK) v Kent County Council [2009] EWHC 939 (Admin) |
Critique of expert evidence methodology. |
Highlighted difficulties with Plaintiff's chosen expert evidence, affecting case dynamics. |
| R (A) v Croydon LBC; R (M) v Lambeth LBC [2009] UKSC 8 |
Determination of age is a fact-finding function for the court under section 20. |
Converted the judicial review claim into a fact-finding age assessment claim under the Administrative Court's enhanced jurisdiction. |
| R (Boxall) v Waltham Forest LBC (2001) 4 CCLR 258 |
Guidelines for costs in compromised judicial review claims. |
Provided principles for costs allocation when cases settle without trial. |
| R (Scott) v Hackney LBC [2009] EWCA Civ 217 |
Costs principles in judicial review settlements where local authority concedes. |
Confirmed Boxall guidelines and emphasized careful analysis before making no order for costs. |
| BCT Software Solutions Ltd v C Brewer & Sons Ltd [2003] EWCA Civ 939 |
Costs after settlement before trial in civil litigation. |
Established that courts may refuse costs orders when facts are unresolved and no trial has occurred. |
| R (Bahta) v Secretary of State for the Home Department [2011] EWCA Civ 895 |
Costs in judicial review claims conceded after issue. |
Held that defendants who concede after issue should normally pay claimant's costs unless good reason exists. |
| Brawley v Marczinski [2002] EWCA Civ 756 |
Costs allocation when one party is clearly successful on the only issue. |
Supported awarding costs to the successful party when clear who would have won at trial. |
| Re appeals by Governing Body of JFS [2009] UKSC 1 |
Funding source of successful party does not affect entitlement to costs. |
Supported principle that costs entitlement is independent of funding arrangements. |
Court's Reasoning and Analysis
The court began by acknowledging the general rule under CPR 44.3 that the unsuccessful party pays the successful party's costs but recognized the court’s discretion to depart from this rule based on conduct, extent of success, and offers to settle. The court reviewed established guidelines from prior Administrative Court cases, notably Boxall and Scott, which emphasize caution in awarding costs where cases settle without trial, but also the importance of pre-action protocols and the conduct of the parties.
The court noted the dynamic and evolving nature of the law in this area during the litigation, including the Supreme Court’s decision which shifted the responsibility for age assessment from local authorities to the courts. This evolution justified some of the Defendant’s conduct in resisting the claim initially.
However, once the law was settled and the Defendant conceded the substantive issue, the court found that the Plaintiff was the successful party entitled to costs unless good reasons existed to the contrary. The Defendant's delay in conceding and failure to comply promptly with procedural requirements weighed against them. The court rejected the argument that the Defendant’s settlement on the assumption of no costs order was a sufficient reason to deny costs.
The court concluded that the appropriate approach is to award costs to the Plaintiff but to reflect the Defendant’s reasonable conduct and the changing legal landscape by ordering partial costs payment for the period before permission to proceed was granted and full costs thereafter.
Holding and Implications
The court allowed the appeal in part and ordered that the Defendant pay 50% of the Plaintiff’s costs for the period up to the grant of permission to proceed and 100% of the costs thereafter, assessed on the standard basis if not agreed.
This decision clarifies that in judicial review proceedings where a public authority concedes the substantive claim after issue, the claimant is generally entitled to costs unless there is good reason otherwise. It emphasizes the importance of compliance with pre-action protocols and timely resolution. The judgment discourages assumptions that no order as to costs will follow concessions and encourages early, comprehensive settlement discussions including costs. No new precedent was set beyond applying established principles to the facts of this case.