Emezie v Secretary of State for the Home Department

This is an appeal against the order dated 28 January 2013 made by Mostyn J on an application by the present appellant for an order for her costs of her compromised judicial review claim. Mostyn J decided the matter on the papers, without a hearing, as had been agreed by the parties in their consent order of 5 September 2012. He rejected the Claimant’s claim for her costs and decided that there should be no order as to costs. I gave permission to appeal on 25 March 2013 and directed that, like the application to Mostyn J, the appeal should be determined on written submissions.

The claim was a relatively simple one, seeking an order that the Secretary of State provide suitable accommodation for the Claimant. Given her state of health and her advanced pregnancy, suitable accommodation was said to be self-contained ground floor accommodation. This is what was eventually provided, after the commencement of proceedings, and led to the consent order being made agreeing to the withdrawal of the claim and for costs to be determined on written submissions.

The first question raised on this appeal is whether Mostyn J applied the correct test in making his decision. Both parties’ submissions before him referred to Bahta [2011] EWCA Civ 895. The Secretary of State’s submissions referred to Boxall v Waltham Forest LBC (2001) 4 CCL Rep 258, a decision that must now be considered no longer to be authoritative in the light of the most recent guidance, in M v Croydon [2012] EWCA Civ 595. In M, Lord Neuberger said:

“60.

…, in Administrative Court cases, just as in other civil litigation, particularly where a claim has been settled, there is, in my view, a sharp difference between (i) a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement, and (ii) a case where he has only succeeded in part following a contested hearing, or pursuant to a settlement, and (iii) a case where there has been some compromise which does not actually reflect the claimant’s claims. While in every case, the allocation of costs will depend on the specific facts, there are some points which can be made about these different types of case.

61.

In case (i), it is hard to see why the claimant should not recover all his costs, unless there is some good reason to the contrary. Whether pursuant to judgment following a contested hearing, or by virtue of a settlement, the claimant can, at least absent special circumstances, say that he has been vindicated, and, as the successful party, that he should recover his costs. In the latter case, the defendants can no doubt say that they were realistic in settling, and should not be penalised in costs, but the answer to that point is that the defendants should, on that basis, have settled before the proceedings were issued: that is one of the main points of the pre-action protocols. Ultimately, it seems to me that Bahta was decided on this basis.”

Boxall, a decision of the Administrative Court, had indicated that the test for an award of costs in favour of a claimant when a claim was settled was whether he would have been bound to succeed at trial. That test must be regarded as superseded. The starting point now is whether the claimant has achieved what he sought in his claim.

Regrettably, neither party’s submissions drew the judge’s attention to M v Croydon.

Although the text of the judge’s reasons is short, it does not refer to M v Croydon. More importantly, the first sentence of his judgment suggests that he considered the principal question to be whether the Claimant would have obtained an order for the accommodation she had sought and obtained if the proceedings had been fought to trial. As I have stated, this was the test in Boxall which is no longer applicable, and was not at the date of his order. I infer that he did not apply the appropriate test.

Moreover, if he had done so, I do not see that he would have made the order he did. The Claimant’s solicitors’ letters before the issue of proceedings made it clear what accommodation she was seeking and which she said she required. Their letters elicited no unequivocal response until after the issue of proceedings. UKBA did agree to a transfer to a ground floor property, in a letter dated 26 April 2012, but did not describe it as self-contained. The Claimant’s solicitors pursued this point by their letter of 21 May 2012. No response had been received by 7 June, when they sent a chasing letter “in the hope of eliciting a positive response and saving costs”. UKBA’s letter of 8 June still did not identify the type of accommodation to be provided, beyond stating it would be on the ground floor. The Claimant’s solicitors again chased for specificity in a letter of 8 June, and stated that in the absence of a positive response proceedings would be issued on the following Monday, 11 June, as in the event occurred. I conclude that proceedings would have been avoided if UKBA had given an assurance of self contained ground floor accommodation being made available in the near future consistently with the advanced stage of the Claimant’s pregnancy.

The Secretary of State contends that the judge’s decision is supportable by reason of the Claimant’s failure to accept the offer of accommodation made to her before the proceedings were issued. However, the correspondence is inconsistent with any such offer of ground floor self-contained accommodation.

Having regard to the judge’s failure to apply the correct principles to the question of costs, I consider that this Court is entitled to exercise the discretion as to costs afresh. In any event, applying the principles set out in M v Croydon, I consider that the only just order is that the Secretary of State pay the Claimant’s costs of the judicial review proceedings and of this appeal, to be assessed on the standard basis.

I agree.