RL & Ors v The London Borough of Croydon, England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Advocates

Tim Buley (instructed by The Public Law Project) for the Appellant
Mark Tempest (instructed by The London Borough of Croydon) for the Respondent

Judges

LORD JUSTICE MOYLAN
LORD JUSTICE JACKSON
LORD JUSTICE UNDERHILL

See more information ...

Click here to read the full judgment

RL & Ors v. The London Borough of Croydon

Smart Summary

Factual and Procedural Background

The Appellants appealed an order for costs made by Judge Gill on 20th April 2016 in the Administrative Court following the settlement of their judicial review claim. The judge had made no order for costs. The dispute concerned whether the Appellants were entitled to their costs after a judicial review claim challenging the London Borough of Croydon's failure to provide accommodation under section 17 of the Children Act 1989.

The background involved two overlapping strands: a section 17 assessment initiated by Croydon starting in late September 2015 and completed on 4th November 2015, and a judicial review claim issued by the Appellants on 28th October 2015. The judicial review challenged Croydon's failure to accommodate the Appellants, specifically the mother and her three children, following eviction on 15th October 2015.

The judicial review was refused permission by Garnham J on the papers, who found the claim disclosed no coherent case. Despite this, the claim was settled by consent on 18th January 2016 after Croydon completed the section 17 assessment and decided to provide temporary accommodation pending a Home Office application outcome. Costs were reserved to be determined on written submissions.

Legal Issues Presented

Whether the Appellants established grounds for the court to interfere with the costs order made by Judge Gill.
Whether the Appellants should be regarded as the successful party entitled to costs following the settlement of the judicial review claim.
Whether the judge erred in giving weight to the refusal of permission by Garnham J when deciding the costs order.

Arguments of the Parties

Appellants' Arguments

The judge failed properly to apply the test from (M) v Croydon London Borough Council [2012] 1 WLR 2607 concerning whether the claim had in substance succeeded.
The judge was wrong not to challenge Garnham J's refusal of permission, especially since the Appellants had not pursued the renewal to avoid disproportionate use of court resources.
The section 17 assessment was straightforward and should have been completed before the family became homeless; any outcome other than accommodation would have been irrational.
Croydon failed to properly engage in pre-action correspondence, with minimal communication between 20th October and 3rd November 2015.
The provision of accommodation was effectively a result of the judicial review claim, making the Appellants the successful party entitled to costs.

Respondent's Arguments

The judge correctly applied the legal test for costs, considering the basis of the claim, reasons for relief provided, and causal connection to the claim.
The provision of accommodation resulted from Croydon fulfilling its statutory duty under section 17, not from the judicial review proceedings.
The claim was without merit given the scope of section 17 as established in (G) v Barnet London Borough Council [2004] 2 AC 208.
The judge was entitled to give weight to Garnham J's refusal of permission and to conclude it was not tolerably clear the Appellants would have succeeded if the claim had proceeded.
Croydon engaged reasonably with the Appellants and their solicitors during the assessment and pre-action process.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Tesfay) v Secretary of State for the Home Department [2016] 1 WLR 4853	Test for interference with costs orders in judicial review claims.	Guided the court's approach on whether to interfere with the costs order based on success and reasonableness.
(M) v Croydon London Borough Council [2012] 1 WLR 2607	Test for determining whether a claimant has succeeded in a judicial review for costs purposes.	Applied to assess if the Appellants were the successful party entitled to costs.
(G) v Barnet London Borough Council [2004] 2 AC 208	Section 17 of the Children Act 1989 imposes a general duty but not an individual enforceable right to accommodation.	Used to determine that the Appellants had no enforceable right to accommodation and that Croydon’s duty was broad and discretionary.
MN and KN v London Borough of Hackney [2013] EWHC 1205 (Admin)	Until a child is assessed as in need, section 17 powers do not engage.	Supported the Respondent's argument that interim accommodation was not a statutory obligation before assessment completion.
R (Bahta) v Secretary of State for the Home Department [2011] EWCA Civ 895	Importance of costs recovery for publicly funded lawyers and principles for costs orders in public law cases.	Considered in relation to the impact of legal aid on costs decisions.
R (Boxall) v Waltham Forest London Borough Council (2000) 4 CCLR 258	Guidelines for costs orders in judicial review proceedings.	Reviewed as part of the historical framework on costs in judicial review claims.
R (Scott) v Hackney London Borough Council [2009] EWCA Civ 217	Inclusion of Pre-Action Protocol compliance as a factor in costs decisions.	Referenced regarding the need for reasonable and proportionate analysis in costs applications.
R (on the application of E) v JFS Governing Body [2009] 1 WLR 2353	Considerations regarding remuneration of publicly funded solicitors.	Used to emphasize the importance of fair costs awards for public funding sustainability.
R (AB and SB) v Nottinghamshire County Council (2001) 4 CCLR 295	Failure to carry out a section 17 assessment may attract a mandatory order.	Noted to distinguish the duty to assess from the duty to provide services.

Court's Reasoning and Analysis

The court first identified the relevant legal test for costs in judicial review claims, focusing on whether the Appellants were the successful party or could be regarded as having succeeded. The court applied the principles from (M) v Croydon and Tesfay, considering the relief sought, the outcome, and the causal connection between the claim and the outcome.

The court found that the provision of accommodation was the result of Croydon's completion of the section 17 assessment, not a consequence of the judicial review proceedings. The judge was entitled to give weight to Garnham J's refusal of permission, which found the claim disclosed no coherent case. It was not tolerably clear that the Appellants would have succeeded if the matter had not settled.

The court emphasized that section 17 imposes a broad discretionary duty on local authorities, not an enforceable right to accommodation for individual children. The claim was considered to have little substance, and Croydon was not regarded as having conceded the claim but rather as having fulfilled its statutory obligations.

The court rejected the argument that the timing of the assessment or Croydon's engagement with the solicitors affected the success question. The assessment was completed within a reasonable timeframe, and the court recognized the resource pressures on local authorities.

Although the court acknowledged the importance of costs recovery for publicly funded lawyers, it concluded that there was no principled basis to award costs to the Appellants. Lord Justice Underhill, while reluctant, agreed with this conclusion, noting that success should be measured by whether the proceedings accelerated the assessment, which was not demonstrated here.

Lord Justice Underhill also noted that it was open to challenge Garnham J's decision, but on the materials, it was doubtful the claim would have succeeded. The Appellants acted reasonably in issuing proceedings given the circumstances, but this did not entitle them to costs.

Holding and Implications

The court's final decision was to DISMISS THE APPEAL.

The direct effect is that the Appellants are not entitled to their costs. The existing costs order, which made no order for costs except a minor amendment reflecting legal aid status, stands. No new precedent was set by this decision. The ruling confirms the principle that in judicial review claims challenging local authority duties under section 17 of the Children Act 1989, success for costs purposes depends on whether the claim caused the outcome, not merely the outcome itself. It also underscores the discretionary nature of local authority duties under section 17 and the limited circumstances in which costs will be awarded to claimants who settle after permission is refused.