Day, R (on the application of) v Waltham Forest

MR JUSTICE SULLIVAN: Permission to apply for judicial review was granted in this case on 29th July. The matter is now resolved, save as to the issue of costs. The parties propose that the application be adjourned generally. This is upon the basis that it is presently intended that the defendants will provide the claimant's housing file to the claimant by 18th October. The claimant will then have an opportunity to make representations by 25th October and the defendants' intention is then to take a decision on her housing application by 8th November.

The consent order will provide a default mechanism where by if no application is made by the parties to restore the matter to the list, then the application will be treated either as dismissed or as having been withdrawn. The deadline for that being presently proposed as 12th January. That seems to me to be an eminently sensible way of resolving the matter and if a consent order, in those terms, is drawn up I would be happy to approve it.

As I say, that leaves the question of costs. I have been referred to the decision of Scott Baker J, as he then was, in the case of Boxall, and of course I bear in mind the administrative court's practice in cases such as this. It is not a fruitful exercise to try to trawl through all the merits and, in effect, try the proceedings that the parties are trying to deal with by way of consent order.

In this case it seems to me to be sensible to focus on the council's conduct. In accordance with the guidance the council should have made its section 184 decision in late February. One recognises that the guidance is just that, guidance, and there will be more complex cases which will take longer to resolve, nevertheless that is a convenient starting point.

In due course a great deal of correspondence ensued and the letter before action was sent on 16th June. The claim form was issued on 21st June. There was no acknowledgment of service from the council and therefore the council cannot complain that Sir Richard Tucker granted permission to apply for judicial review on 29th July. The following day the acknowledgment of service was filed. But permission having been granted it was for the council to serve detailed grounds, the acknowledgment of service simply contained summary grounds, and indeed made the point that the council expressly reserved the right to supply further grounds and/or a skeleton argument contesting the claim. Thus the council should have served detailed grounds and its evidence within the prescribed timescale. It regrettably did not do so.

In due course the parties were told, on 15th September, that the hearing would be today. Again the council did not supply a skeleton argument within time. On 28th September the council received further information, both from an anonymous source and as a result of a visit from the claimant herself to the council's offices, which led it to conclude that whereas previously it had stated that there would be "no problem" with making a favourable decision, it was now minded to make an unfavourable decision. The fact that the council had received that information was set out in a witness statement of Miss Singer, who is the defendant's Senior Homeless Person's Officer. That witness statement was dated 29th September.

All this time the parties must have been only too well aware that this hearing was looming. But it was not until two minutes before five on Friday, 8th October that the council sent a fax to the claimant's solicitors saying that it was minded to make an unfavourable decision. Not surprisingly, by that stage, the claimant's counsel had prepared and served a skeleton argument. In effect it was simply too late to bring these proceedings to a halt without some form of a hearing.

In the light of these matters it seems to me, firstly, that the council cannot complain, since it got its acknowledgment of service in too late to prevent permission to apply for judicial review being granted, if it is ordered to pay the costs up to that date, nor, since it failed to comply with the CPR in terms of providing detailed grounds and evidence within time and a skeleton argument, could it complain of being ordered to pay costs up to today's hearing.

That leaves the costs of today which could undoubtedly have been avoided if the council had made its change of mind clearer at an earlier stage. In my judgment, by leaving the matter until the last thing on Friday afternoon the council must have realised that the likelihood was that this hearing would be aborted and costs unnecessarily thrown away.

So for these reasons it seems to me that as a result of its conduct of the proceedings it is only right that the council should be ordered to pay the costs up to now and that such costs to go for detailed assessment, if not otherwise agreed.

When I refer to the council's conduct of the proceedings I do make it clear I am not intending to sound unduly critical. There is no suggestion of bad faith or being deliberately obstructive. It is simply, and I say this for the assistance of the council, that if it is engaged in administrative actions which might make a judicial review claim unnecessary, or which might, for example, demonstrate that the claim is proceeding on an entirely wrong footing, then the sensible course is to inform both the claimant and the Administrative Court Office of what is going on at the earliest possible opportunity.

It seems that consideration of the practicalities of how to respond to the claim led the council to delay putting in an acknowledgment of service and consideration of different matters may have led it not to put in evidence pursuant to the CPR after permission had been granted.

I simply observe that the rules are there to be observed. If the court hears nothing from the council then the council cannot complain if decisions are taken which are adverse to it. For all of these reasons I resolve the costs issue in the claimant's favour.

MR BOWEN: My Lord, thank you. Would your Lordship be happy for me to draft up that minute of order and get it back to the court?

MR JUSTICE SULLIVAN: Yes indeed. Just agree it with Miss Hodgeson. That would be very helpful.

MR BOWEN: Would your Lordship say one final thing, that there be a detailed public funding assessment of the claimant's costs.

MR JUSTICE SULLIVAN: Yes, detailed assessment for public funding purposes. Thank you.

MR BOWEN: Thank you very much, my Lord.