Factual and Procedural Background
A, a seven-year-old child with profound physical disabilities, is engaged in an ongoing appeal to the Special Educational Needs and Disability Tribunal ("SENDT") concerning her educational placement. A challenges the SENDT President's decisions dated 06 and 09 October 2017, which declined to maintain and enforce discovery orders issued on 08 August 2017 and 04 October 2017 against the Education Authority ("EA"). A seeks quashing and mandatory orders against SENDT and a mandamus order compelling EA to comply with the discovery orders.
The grounds of challenge include alleged breaches of Articles 6 and 8 of the European Convention on Human Rights ("ECHR") under the Human Rights Act 1998, frustration of a legitimate expectation of full discovery, breaches of Regulation 34 of the SENDT Regulations 2005 and Order 15 of the County Court Rules, error of law concerning legal privilege, and irrationality.
Proceedings commenced on 20 October 2017 with expedition granted and an accelerated initial hearing date. At the time of this opinion, the sole issue remaining for determination is the question of costs.
SENDT directed EA to make general discovery on 08 August 2017 and specific discovery on 04 October 2017 concerning communications related to a report dated 05 April 2017 by a medical professional. EA's solicitor asserted legal professional privilege over the communications and requested an opportunity to make representations before further directions were issued. SENDT decided on 06 and reaffirmed on 09 October 2017 that no further discovery directions would be made.
Key factual findings include: SENDT accepted EA's assertion of privilege and declined to compel further discovery; EA did not breach the discovery orders; and A initiated judicial review proceedings without exhausting available procedural remedies within SENDT.
Legal Issues Presented
- Whether the decisions of SENDT refusing to maintain and enforce discovery orders against EA were lawful.
- Whether EA was obliged to comply with the discovery orders notwithstanding the assertion of legal professional privilege.
- Whether A exhausted available procedural remedies within SENDT before initiating judicial review proceedings.
- The proper approach to costs in judicial review proceedings where the substantive challenge has become academic or resolved consensually.
- The implications of legal aid funding regulations on the duty of a publicly funded litigant to pursue costs against other parties.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207 |
Costs should generally not be awarded against an inferior court or tribunal taking no active part in judicial review proceedings. |
Applied to refuse costs against SENDT, which took no active part beyond defending its position. |
| R (Boxall) v Waltham Forest LBC (2001) 4 CCL Rep 258 |
In the absence of good reason, the court should make no order as to costs inter-partes ("fall back" principle). |
Referenced in discussion of costs principles and legal aid fund considerations. |
| British Oxygen Company Limited v Board of Trade [1971] QB 610 |
The principle that public authorities must not fetter discretion by inflexible policies ("British Oxygen principle"). |
Invoked to critique the Legal Services Agency's rigid approach to costs applications. |
| YPK and Others v Secretary of State for the Home Department [2018] NIQB 1 |
Costs in judicial review should only be adjudicated as a last resort when proceedings become academic; emphasizes overriding objective and duties of cooperation. |
Applied to highlight the inappropriateness of pursuing costs applications when substantive issues are moot. |
Court's Reasoning and Analysis
The court analysed the procedural history and statutory framework governing discovery and interlocutory applications before SENDT. It found that A failed to exhaust available procedural remedies within the tribunal, as required by Regulation 31 of the SENDT Regulations 2005, before initiating judicial review. The informal communications from A's solicitors were insufficient to meet the procedural requirements for interlocutory applications, which require written applications with notice to the opposing party and opportunity to object.
The court accepted EA's assertion of legal professional privilege and SENDT's decision not to compel further discovery as lawful and reasonable. It noted that SENDT took no active part beyond defending its position and therefore should not be penalised with costs.
Regarding costs against EA, the court considered EA's pragmatic change of position motivated by the doctor/patient relationship and the desire to avoid delay. It found that the resolution likely could have been achieved through the Pre-Action Protocol ("PAP") process, which A failed to comply with. The court emphasised that public authorities should not be deterred from taking reasonable steps to resolve disputes by the prospect of adverse costs orders.
The court then examined the implications of legal aid funding. It reviewed relevant statutory provisions and the response from the Legal Services Agency ("LSA"). The LSA's position was that legal representatives owe duties to protect the public fund but that there is no explicit statutory duty to pursue costs applications in every case, particularly where the substantive issues are resolved or moot. The court criticised the LSA's rigid approach for lacking flexibility and failing to engage with the overriding objective and the nuances of "success" in judicial review.
Finally, the court concluded that A's costs application lacked merit and that no order for costs between parties should be made, with A's costs to be taxed as an assisted person under legal aid provisions.
Holding and Implications
The court's final decision comprises three components:
- Dismissal of the application for leave to apply for judicial review.
- No order as to costs inter-partes between the parties.
- Taxation of A's costs as an assisted person under the legal aid scheme.
The direct effect is that the judicial review challenge is refused and no costs are awarded against SENDT or EA. The decision underscores the importance of exhausting tribunal remedies before resorting to judicial review, the proper assertion of legal professional privilege, and the need for proportionality and flexibility in costs and legal aid considerations. No new legal precedent was established; rather, existing principles were applied and reaffirmed in the context of procedural compliance and public funding obligations.