Hunt, R (On the Application of) v North Somerset Council

This is the judgment of the court.

We handed down our judgments in this case on 6 November 2013: [2013] EWCA Civ 1320. The outcome was that we refused to grant any relief to the appellant, Mr Hunt, and dismissed his appeal. This judgment explains our ruling as to costs, upon which we have received extensive submissions. We shall treat our main judgment as read.

The parties could not be further apart. Mr Hunt has invited us to make an order dismissing the appeal but ordering the Council to pay his costs of the appeal, to be assessed if not agreed, and to provide also for an assessment of his publicly funded costs. The Council has invited us to dismiss the appeal and to order Mr Hunt to pay its costs of the appeal, but also of course providing for an assessment of his publicly funded costs. The Council also asks us to make an order in its favour of the costs of the proceedings in the High Court, but we can see no reason for doing that: Wyn Williams J, who dismissed Mr Hunt’s judicial review claim, ordered him to pay the Council’s costs of his failed claim.

We have not found the determination of the appropriate order as to costs straightforward. Mr Hunt is entitled to say, as he does, that he succeeded before this court on both substantive issues that were argued. As to the PSED issue, he is entirely correct about that. As to the Education Act 1996 issue, it would be more accurate to say that the court had reservations as to the correctness of the legal proposition that Mr Hunt was advancing (see paragraph 67 of our main judgment), but that on the (expressly undecided) premise that it was correct, Mr Hunt had the better of the argument. What, however, caused Mr Hunt to fall short of achieving any relief was that the court considered that this was not a case for the grant of relief. The court was of the view that, by the time the appeal came on for hearing, it was far too late to consider granting any relief, even if (as to which it had doubts) it might have been appropriate for relief to be granted a year earlier when the matter was before Wyn Williams J.

In these circumstances, the court considers that it would be wrong in principle to award any costs to Mr Hunt. The appeal proved to be of no practical value to him; and, in the court’s view, it was one that was always destined to fail.

As the Council was the successful party in the appeal, the court considers that it is in principle entitled to its costs. On the other hand, the court has had regard to the fact that the Council resisted the appeal not only on the basis that this was not a case for relief, but also on the two substantive grounds upon which it lost. Its resistance on those two grounds increased the costs of the appeal. We regard that consideration as pointing away from an order awarding the Council all its costs.

We have, accordingly, concluded that the Council ought to be entitled to recover only a proportion of its costs from Mr Hunt. We have decided to fix that proportion at one half. We would ask counsel to agree and lodge a form of order that gives effect to that decision, being of course an order in a form that caters for the fact that the appellant is legally aided and entitled to the protection which that status confers upon him.