Scott, R (on the application of) v London Borough of Hackney

At the heart of this appeal is the question of the remuneration of lawyers, not a subject likely to attract much sympathy from the population at large. The lawyers concerned, however, are those who act for publicly funded clients and represent some of the most disadvantaged in our society.

The root of the problem lies in the rates of pay. There is now a significant difference between the rates of pay lawyers receive on taxation of an inter partes costs order and the rates of pay they receive from the public purse where no order for costs is made. This is particularly so in high cost cases. Inter partes costs orders have, therefore, become critical to their profitability and to their very survival. Fearing the demise of the legal aid practitioner ready and willing to challenge public bodies who fail in their public duties, the Public Law Project, a recognised charity working in the field, sought permission to intervene and make submissions on the proper approach to be adopted on applications for costs in public law cases. I gave them permission.

I should set out the background to the making of the order from which this appeal is brought in a little detail. The appellant, Michael Scott is a 33-year-old man who has learning disabilities within the autistic spectrum. His behaviour is challenging and he has severe communication problems. He requires assistance on a daily basis. His mother and litigation friend, Mrs Scott, felt for some years that the respondent, the London Borough of Hackney, responsible for Michael’s care, was failing in its statutory duties. Hackney, on the other hand, insisted that it has done all that could reasonably be expected of it and more.

On 2 July 2004 solicitors acting for Mrs Scott wrote to the respondent complaining that Michael’s needs were not being properly addressed and threatening judicial review. An assessment was made and a care plan produced dated 16 September 2004. The authors accepted the very challenging and destructive nature of the appellant’s behaviour. A care package of 42 hours per week was to be provided and attempts made, subject to availability of funding, to provide educational and respite placements for the appellant.

On 11 November solicitors for Mr Scott wrote a pre-action protocol letter claiming the respondent had failed to arrange the educational and respite care and again threatening judicial review. A social worker was allocated to the appellant but those acting for him seemed unhappy about the availability and/or suitability of the care provided.

In August 2005 the appellant’s solicitors wrote twice to the respondent, saying his condition had deteriorated and his carer could not cope. A place at a day care centre and speech therapy were requested. The parties disagreed in the suitability of the day care on offer. The appellant’s solicitors suggested also that the appellant had not had the therapy he required for some six years. Judicial review remained a possibility.

By October 2005 the appellant’s family had been offered a new house which required adaptations to the tune of £1500 to suit the appellant’s needs. The respondent disputed that it had a statutory duty to fund the adaptations, for which it had no budget, the adaptations being required because of Michael’s mental rather than physical disability. The respondent suggested the appellant seek a disabled facilities grant. The necessity for this was challenged by those acting for the appellant, although it remains unclear to me why the appellant’s family could not simply fill out the forms.

Another ground of contention was the question of respite care. The respondent acknowledged the need for such care and arranged some. It took place in November 2005. However, the parties disagreed on the timing and nature of the necessary respite care. The respondent claimed that Mrs Scott unreasonably refused the respite care offered unless it took place at peak times. The respite care centre to which the respondent sent the appellant stated his condition was such they could only cope with him in off peak periods. The respondent claimed it provided details of another possible centre of respite care.

The appellant’s solicitors decided to commission a report from a Mr Crompton. The respondent questioned whether he had the relevant expertise in the care of those suffering from autism. He reported in February and March 2006. He suggested that the situation was reaching crisis point and he made a number of recommendations including specialist referral.

In fact, the appellant had been seen by a number of medical specialists over the years. I can summarise the referrals: between 1994 and 1995 he was referred to a clinical psychologist. In 1996 he was referred to a speech therapy service, an assessment was carried out and a report produced in November of that year. In the spring 1997 the therapist questioned whether her involvement was still necessary. However, several sessions of therapy were offered during the period 1997 to January 2001. Home visits were carried out in 2002. The appellant was also referred to another clinical psychologist who is a specialist in advanced learning difficulties with a knowledge of autism. Further sessions or visits occurred in February, March and April of 2003. Despite an alleged assault on the treating doctor by a member of the appellant’s family, it was nonetheless decided that the therapy should continue. Two phone calls were made to the appellant’s family about arrangements but the respondent claimed there was no response. It suggests that these were far from isolated incidences of the difficulties they faced in working with the appellant’s family. It accused the appellant’s family, or some members thereof, of amongst other things, obduracy.

A copy of Mr Crompton’s support was sent to the respondent on 3 March in a another pre-action protocol letter. The respondent says the appellant was reassessed by its officers at about the same time as Mr Crompton became involved. It insists that a joint community care assessment took place on 15 February 2006 at the appellant’s home in the presence of his mother. The appellant’s mother said she thought this was merely an assessment of her suitability to care for her son.

The respondent further insists that it sent Mrs Scott a copy of the care plan produced as a result of the February assessment before proceedings were instituted. There were, however, some difficulties in finalising the care plan: for example, there was still no agreement between the parties on the day care centre that Michael should attend. Nevertheless the respondent planned to finalise the assessment by the end of June 2006.

A meeting was held on 25 May 2006 with lawyers present to try to resolve outstanding issues. The appellant complains that his social worker was not present because he was on leave. The appellants’ representatives questioned why, if the community care assessment had taken place and a care plan produced, no mention was made of it during this meeting. If the parties followed the agenda, the issues discussed were comprehensive. The question of general care planning was number one on the agenda; also discussed were day care provision, the need for a specialist carer, the necessary adaptations to the appellant’s home and the need for a specialist bed which he could not destroy, a new referral to the speech and language service, a venue for respite care and the installation of a wander alert.

The next day the appellant’s solicitors wrote to the respondent on the issues discussed. Mr Sinai for the respondent invited the court to note that in that letter no specific complaint was made of the absence of a written care plan. It should be said, however, that both parties were at all times aware of the significance and importance of a written care plan.

May to June 2006 there were problems with the provision of a carer. The respondent maintains that problems were relatively insignificant. The appellant’s carer went on holiday and the appellant’s mother refused a substitute carer during the two weeks the carer was away, saying she preferred to look after the appellant herself.

The parties remained at odds over the suitability of the day care centre the respondent was prepared to provide. Mrs Scott wanted her son to attend a centre in Acton, saying it was the only one that was suitable. However, by the end of June 2006 the respondent had carried out a risk assessment on the appellant’s travelling to and attendance at the day centre in Acton. The risk assessment concluded that it would be unsuitable for the appellant. The respondent claim that as a result it offered details of a number of possible alternative centres including the Trinity Centre, which Mrs Scott refused to consider.

On 8 June 2006 the claim for judicial review was filed. It alleged: failure to provide services to meet the appellant’s assessed needs (including adaptations to the family’s home and appropriate day care centre with educational input and a failure to provide services at home); failure to take into account the recommendations of Mr Crompton, in particular in relation to the need for speech and language therapy, for referral to a special consultant in autism and the provision of a wander alert; failure to comply with government guidelines concerning the preparation and review of the care plan for the purposes of delivering a care package; failure to provide a specialist bed and appropriate respite care.

Permission to bring judicial review was granted. The respondent contested the claim, which it argued was without merit, on the basis it had complied with its statutory duties of assessing the appellant’s needs and promoting his welfare. It claimed it had provided suitable respite care, offered suitable day care and an appropriate carer. It insisted a care plan existed and was in the process of being finalised. The adaptations were in hand, the necessity for a wander alert had been obviated by other work done and a specialist bed had already been delivered. It was also said that appropriate specialists had been consulted. Nevertheless, as a direct result of these proceedings, the respondent arranged re-assessments by a speech therapist and a clinical psychologist. These assessments started towards the end of 2006. The respondent maintains that by bringing these proceedings, the appellant has, in effect, jumped the queue, certainly as far as the speech therapy is concerned, and is in receipt of services that otherwise would have been allocated to another patient.

On 14 July 2006 Sullivan J (as he then was) made an order expediting the filing of the respondent’s documents, noting this matter had been dragging on for too long. On the basis of a concession by the respondent that the sooner the adaptations were made to the new house the better, on 7 July 2006 Wilkie J at the same time as he granted permission to apply for judicial review, granted interim relief relating to the adaptations.

Still no application was made for the grant for the building works and the respondent failed to comply with the adaptations order. A further trip to court in August 2006 was necessary. Bean J ordered the appellant to complete the forms for a grant and ordered the respondent to carry out the adaptations by 4 September 2006. I understand a costs order was made in the appellant’s favour.

The case was listed for final hearing on 25 October 2006. The appellant’s solicitors wrote twice to the respondent at the end of September and beginning of October 2006 proposing a further meeting to discuss outstanding issues and avoid the necessity for a hearing. They claimed they received no response.

The two outstanding issues case raised in the appellant’s skeleton argument of 18 October 2003 were the provision of suitable day care and the provision of a care plan. As the respondent sees it, therefore, the appellant abandoned the claim for referral to a specialist in autism and his claim for appropriate respite care.

In October 2006 Mr Crompton was able to visit the Acton Centre for the first time. On 24 October 2006, the day before the final hearing, the appellant disclosed an updated report from him dated 20 October in which he agreed that the Acton Centre was unsuitable for the appellant. The respondent argues, with some force, therefore, that the appellant’s own expert vindicated their position on day care provision.

One issue remained: the provision of a written care plan. The respondent served a skeleton argument for the hearing on 25 October 2006, the afternoon before the hearing. An up-to-date care plan was attached to the skeleton. The date that this care plan came into existence remains very much a matter in dispute. The care plan specified the date for review as 30 August 2006 and no review had taken place. The parties agreed, therefore to adjourn the hearing. The respondent undertook to carry out the review by 9 November 2006 and to use its best endeavours to secure a place for the appellant at the Trinity Centre. However, the respondent failed to serve a copy of the care plan review by 9 November 2006. On 20 November an application was made to enforce the order; the application was listed for hearing in January 2007. Meantime the care plan review, accompanied by an apology for the delay in serving it, was received by the appellant’s solicitors on 11 December 2006.

The appellant’s representatives say that upon the receipt of the care plan review, and given the fact that the Trinity Centre day care placement was to go ahead, they took the decision to ask the court for permission to withdraw the application. The only issue remaining was the question of costs. Both parties submitted full written representations of some length but did not attend a hearing. The appellant’s grounds for seeking an order for costs inter partes were much the same as the grounds of appeal to which I shall turn in a moment.

The respondent argued for no order as to costs, claiming the essence of the claim at all times was the appellant’s request to be placed at the Acton Centre as opposed to the Trinity Centre. This part of the claim was only abandoned days before the hearing was due to take place. It was always destined to fail and should never have been pursued. As far as the care plan was concerned, the respondent pointed out that pursuant to the consent order it had undertaken to carry out a review of the care plan and provide a copy by 9 November. It had in fact carried out the review on 3 November but a copy was not sent to the appellant’s solicitors by the appropriate time and date. The appellant issued an application without any warning to the respondent on 14 November 2006. Had they made enquiries, the respondent insisted there would have been no need for the application. In any event the respondent claimed the appellant’s needs were being properly addressed whatever written plans were in existence. Physical possession of the plan in this case would have made little if any difference.

It fell to Mr Kenneth Parker QC sitting as a deputy High Court judge of the Queen’s Bench Division to decide the issue of costs. On 18 April 2007 he decided there should be no order for costs save detailed assessment of the appellant’s publicly funded costs. He said this:

“In my view, although the claimant had an apparently strong claim in relation to the central core of its case that the defendant failed to provide an adequate care assessment, the defendant, as it explains in its costs, submissions, had reasonable points of defence. Furthermore, certain aspects of the original claim were not pursued. I cannot confidently conclude that the claimant would have succeeded on its core claim if the matter had proceeded to a final hearing, and, taking account of the need not to discourage reasonable settlements, the fair course is to make no order for costs”

Mr Cragg on behalf of the appellant argued the decision was wrong. He submitted that the appellant had succeeded in most of his claim and an inter partes costs order should have been made to some extent at least. He did not in fact make any attempt to apportion the appellant’s claim for costs to specific issues but suggested if the judge felt that the costs should be apportioned then he should have embarked upon the exercise of his own volition.

Mr Cragg sought leave to appeal to this court on three bases. He argued that the judge applied the wrong test, the judge failed to take into account the respondent’s conduct and the judge failed to take into account the effect on the system and publicly funded lawyers of not making an inter partes order where appropriate.

Permission to appeal was granted by Mummery LJ on 18 July 2008. He observed some general guidance on the points raised might usefully be given by the Court of Appeal.

Mr Cragg began by reminding us, if we needed reminding, of our obligation to give effect to the overriding objective to deal with cases justly. Both he and Mr Clayton QC for the Public Law Project, took us to the Civil Procedure Rules Part 44.3 which, insofar as material, provide as follows:

The most helpful review of the principles to be applied on the application of CPR Part 44.3 to compromised judicial review proceedings, and one which has been adopted by this court on a number of occasions, is to be found in R (Boxall) v Waltham Forest LBC [2001] 4 CC 0R258. The claimants in Boxall sought to issue a review of the local authority’s alleged failure to assess their needs and provide their family with suitable accommodation. The local authority provided new accommodation and the final hearing was not therefore necessary.

At paragraph 12 of Boxall, Scott Baker J (as he then was) considered the question of whether the court should apply a different set of principles from the norm when considering an application for costs from a legal aided party. At paragraph 12 he said this:

“Quite apart from the statutory principle that legally aided litigants should not be treated differently from those who are not, the failure of a legally aided litigant to obtain a costs order against another party may have serious consequence in several respects:

(1)

Where legal aid is subject to a contribution by the litigant he may be out of pocket;

(2)

The level of remuneration for the lawyers is different between a legal aid and an inter partes determination of costs. This is said in part to reflect the risk lawyers take in backing a publicly funded case that turns out to be unsuccessful;

(3)

It is important for the Legal Services Commission to recoup, where it can, the cost of litigation it has funded. It has, in the end a finite budget. It needs the funds to finance other deserving cases.”

Both Mr Cragg and Mr Clayton were at pains to emphasise the contents of this passage and to commend it to us.

However, Mr Sinai invited us to note that there is another side to this particular coin. Local authorities are not exactly awash with cash themselves. They too have finite budgets, and huge demands are made on their limited resources. Claims for judicial review are one of the few areas in civil litigation where public funding is still available. Some claimants’ solicitors, (and there is no suggestion that those who instruct Mr Cragg fall into this category) have been known to take an overly favourable view of their client’s prospects of success and to self-certify the case as fit for public funding. Mr Sinai argues that when they accept publicly funded work, solicitors accept certain litigation risks and failing to obtain an inter partes order is one of those risks. If they know they will receive lower rates of pay on a publicly funded taxation it may encourage them to make a more realistic assessment of their client’s prospects of success before commencing litigation.

Returning to Boxall, for the general principles, at paragraph 22 of the judgment, which appears at page 265 of the report, Scott Baker J summarised them as follows:

Mr Cragg argued that the judge in this case has failed to pay sufficient attention to those basic principles and has thereby misdirected himself. Mr Cragg wished to add a gloss. He invited us to follow Newman J in R v LB Hackney ex p S (unreported) 13 October 2000, a case in which permission to apply for judicial review had not been granted. At paragraph 6 Newman J said:

“It seems plain that in a case where costs are in issue, if the court is satisfied that but for the steps taken by an applicant’s solicitor a public authority would not have fulfilled its statutory duty, then the costs of taking those steps should, in principle, be recoverable from the public authority … the court should approach such a factual issue on a broad basis, after a comparatively short consideration of the facts and doing the best it can on the available material.”

Mr Cragg argues that is what happened here. He submits it is clear that, but for the steps taken by the appellant’s solicitors, the local authority would not have complied with its statutory duties. He insists this was a deserving and successful piece of litigation. The appellant has obtained the treatment and care that he needs only because his representatives pressed the authority, brought proceedings and ensured that the court orders were enforced. However, if the judge’s order stands the appellant’s solicitors will be out of pocket and legal aid money will be expended upon it unnecessarily.

Given Scott Baker J’s summary of the essential principles to be applied in a case of this kind, about which there seems to be little if any dispute, I confess I was at a loss to understand what further guidance could be required of us. This court cannot change the law because there is said to be insufficient funds available to the public purse to fund litigation in the way that many would like. There is not yet one set of rules for cases where publicly funded claimants bring proceedings for judicial review and another set of rules for other civil litigation. However, during the course of argument it became clear that the parties were not in fact asking for a great deal of guidance from the court. They wished this court simply to reinforce the message contained in paragraph 12 of Boxall as to the effect on the legal aid system and legal aid practitioners of not making inter partes orders where appropriate. They wished us to urge judges to bear this effect very much in mind when considering applications for costs.

Mr Cragg submits that the vast bulk of judicial review claims against local authorities settle before hearing, usually because the claimant has achieved his goal. Yet, he says, judges are reluctant to make costs orders in cases which have settled in the claimant’s favour on the basis, for example, that the result was not a foregone conclusion, a public authority has changed its mind, or, in social worker cases, there is a need for good working relationship between the parties which militates towards a neutral costs position.

Both he and Mr Clayton urged upon the court that we should endorse the more rigorous approach to making costs orders advocated we are told by, amongst others, the Bar Council. In his written submissions Mr Clayton went further. He flirted with the suggestion of inviting the court to import into Part 44.3 a presumption that an inter partes costs order should be made in a case where a compromise is reached before permission to bring judicial review is granted. However, rightly in my view, he did not pursue this in oral submissions; if for no other reason than this is not such a case.

Mr Clayton observed, however, that, as valuable as the guidance was in Boxall, the case was decided before the pre-action protocol on judicial review came into force on 4 March 2002. Plainly, the compliance with or breach of the pre-action protocol must be a relevant factor to be taken into account. It would fall under the heading of relevant conduct. Mr Clayton submits that the best way to remind litigants of the importance of the pre-action protocol is by judges imposing costs penalties for significant breaches of it, as is the case elsewhere. However, the question of how to encourage compliance with the pre-action protocol in public law cases does not arise for consideration on this appeal. It is common ground this case involves a straightforward application of the Boxall principles.

That brings me to the second gloss that Mr Cragg sought to put upon them. Mr Cragg argued that Mr Kenneth Parker QC by declaring that he could not “confidently conclude” the appellant would have succeeded in his core claim had applied too high “a test”. He has formulated his own test that the judge should ask themselves whether or not the application for judicial review would “probably have been successful”. He put it forward in an unreported case of R v Calderdale MBC ex parte Houghton [2003] CCLR 228, and he persuaded Smith J (as she then was) to accept it in the absence of any contrary arguments from his opponent.

To my mind this was something of a sterile debate. With respect to Mr Cragg, it is nonsense to suggest that the judge’s use of the words “confidently conclude” means he has imported a higher standard of proof into his deliberations than would be appropriate in this situation. Mr Kenneth Parker QC is an extremely experienced public lawyer and needs no reminding of the approach to be adopted in a claim for judicial review. The passage to which Mr Cragg takes exception to my mind means no more and no less than the judge was not satisfied, on the limited material before him, that it would be just to make an order for costs.

It should not be forgotten that applications of this kind are usually dealt with on paper and in relatively short form. It will rarely be proportionate to enter into an overly detailed forensic analysis of the issues and the evidence and assessment of which party would have won or lost on which issue. The discretion is a broad one, and it is exercised in broad fashion.

Further, I reject Mr Cragg’s confident assertion that on the facts this is a clear cut case. It is far from clear cut on the question of whether the appellant would have succeeded in any of his core claims and it is far from clear whose conduct deserves condemnation in costs (if any condemnation is deserved).

The history rehearsed earlier in this judgment indicates that there is a great deal more to this case than a recalcitrant local authority refusing to comply with its statutory duty and only doing so when confronted with the prospect of judicial review. The core claims advanced by the appellant here were the alleged breaches of statutory duty in failing to provide a care plan and failing to provide suitable day care. The other alleged breaches were (if I will be forgiven for using the expression) makeweights in comparison. The respondent had a reasonable defence to all the main claims, as Mr Kenneth Parker found; but also, in my view, it had what appears to be an unassailable defence to the claim in relation to the provision of day care. Thus, the only significant claim on which the appellant can say that he may have succeeded is the claim in relation to the provision of the care plan. Three points can be made in relation to that: (1) the timing of the provision of a care plan remained factually in dispute; (2) the care plan was inextricably linked to the provision of day care which was not agreed until very late in the day; and (3) as important as a care plan generally is, provision of a written document on the facts of this case was not as important as it might be.

There are similar difficulties in relation to the question of conduct. Both sides complained about the other, arguably with some justification. The appellant claims the respondent ignored requests to attend meetings. But, on any view, its officers did attend meetings and it is impossible to assess on the papers before us whether the other meetings proposed by the appellant’s representatives were necessary. The appellant points to the respondent’s failure to comply with a court order. True it is the respondent required prompting by the court to comply with a court order but the failure, I note, was not on the most important of the appellant’s claims. Further, it seems the respondent was penalised in costs for that omission in any event. Finally and most importantly, Mrs Scott may have thought this was a case of the respondent ignoring the legitimate needs of her son but it was not and sadly on the respondent’s case members of her family did not help matters. . They seem to have had unrealistic expectations of what could be provided and did not co-operate in the way one might have hoped.

In his short statement of reasons Mr Kenneth Parker did not refer specifically to the reasons given by the appellant as to why he claimed the respondent’s conduct merited a costs sanction. However, in determinations of this kind litigants cannot expect a full rehearsal of their arguments and a determination of every argument they advance. In any event, the question of conduct here was for the most part inextricably linked to the question of whether this was in truth a neglectful local authority. To my mind, any detailed analysis of the conduct alleged would have led to the same conclusion: on the papers one could not be satisfied it was just to make an order for costs.

In summary, there was here no real winner or no real loser. No order for costs was the only way to do overall justice in this case. It is not an easy task to persuade this court that a judge was wrong in the exercise of his discretion as to costs. Despite his best endeavours, in my judgment, Mr Cragg has not come close to discharging the burden upon him.

It is not for this court to interfere and set aside a perfectly proper order because the rates of pay of publicly funded work are said to be too low. I understand the expressed concerns. It would be a sad day if society lost the services of lawyers prepared to act in publicly funded cases for the most vulnerable in society. It would also, I note, be a sad day if hard pressed local authorities found themselves unable to care for the vulnerable and needy in their areas, in the way they would wish, because they have wasted too many precious resources on unmeritorious claims.

For my part, the furthest I would be prepared to go along the path urged upon us by Mr Cragg and Mr Clayton would be to urge all judges to bear in mind that, when an application for costs is made, a reasonable and proportionate attempt must be made to analyse the situation and determine whether an order for costs is appropriate. I emphasise a reasonable and proportionate attempt, bearing in mind the pressures on the Administrative Court, yet another hard pressed institution. A judge must not be tempted too readily to adopt the fall back position of no order for costs. Having said that, in my view there is no reason whatsoever to suppose that that is what is happening in the Administrative Court generally or that Mr Kenneth Parker fell into that temptation on this occasion. On the contrary, as I see it, he has considered the issues carefully and come to a reasoned decision. He exercised his discretion in proper fashion, acknowledging his task was to produce, if he could, a fair (or just) outcome. Thus, when he resorted to the fall back position, he only did so having conducted the appropriate exercise which was well within the permitted generous ambit of his discretion.

For all those reasons, therefore, I would dismiss the appeal.

I agree

I also agree