Savage v London Borough of Hillingdon

THE DEPUTY JUDGE: For the reasons I have given in the judgment which I hand down today, the claim succeeds.

MISS BRETHERTON: My Lord, I am very grateful. We are both grateful for the time and detail the court has spent in relation to this matter.

THE DEPUTY JUDGE: Thank you. Can I thank you both for checking the judgment for typos so fastidiously; you both found some pretty recondite ones, so you must have read it carefully.

MISS BRETHERTON: There is one issue arising at this stage, and that is an application for costs. My Lord, I say immediately that I recognise that I did not succeed on all grounds. I do not seek an order for 100 per cent of the claimant's costs, but I do seek an order for 50 per cent of the costs on the basis of the fact that we succeeded with the judicial review, which is of course a very high standard as my Lord knows. My Lord, I think it is probably for my learned friend to respond to that application rather than me to advance it at this stage.

THE DEPUTY JUDGE: Yes.

MR JOHNSON: My Lord, the application for 50 per cent costs is resisted. The essential basis is that whilst I accept there is potentially some liability on the part of the London borough of Hillingdon, there were five issues canvassed, my learned friend succeeded on perhaps half of one of them, if I can put it that way, which is the fettering point; not the broader policy, but whether or not it was fettered in its application. In those circumstances, I would say that the appropriate order would be either no order as to costs, because of course there are then issues in relation to the other two issues raised in relation to the jurisdiction point which has not been determined, and the delay point where there is sort of a no score draw in relation to that from your judgment. So, in my submission, the starting point should be no order as to costs. If you are not with me on that, then I would say a more appropriate percentage would be closer to 15 to 20 per cent costs.

THE DEPUTY JUDGE: Yes. Mr Johnson, it would have been necessary for this hearing to take place, even if the only point taken was the fetter point on which the claimant succeeded, would it not?

MR JOHNSON: That is correct. That is the reality of the matter, my Lord.

THE DEPUTY JUDGE: Yes. Do you want to say anything in reply?

MISS BRETHERTON: My Lord, only that I have tried to be realistic, I have not pursued a one hundred per cent application before you.

THE DEPUTY JUDGE: Very well. I am going to make an order that the defendant pay 50 per cent of the claimant's costs as requested. It is true that the claimant succeeded only on one of the points that she took, but nevertheless, this court hearing would have been necessitated even if that had been the only point that she took. In those circumstances, it seems to me that the fair order is 50 per cent.

MISS BRETHERTON: I am most grateful. My Lord, there is a second matter and that is this: you will recall, no doubt, us saying to you at the start of the hearing that we were both of the view that there was a point of general importance in this case, in relation to duties of local authorities under section 190 of the Housing Act. My Lord, the position is that while I succeeded in relation to the fettering point, that is not actually the point in relation to the main statutory position, and so my Lord's judgment is the only authority in relation to a fundamentally important and major area of practice in housing law. My Lord, given your findings, I do not try and suggest that I can persuade you that there would be a reasonable ground of success, you found against me, but my Lord, I hope in an equally realistic way to the costs issue, I do ask to you grant permission on the basis of another compelling reason, namely the importance of this matter in relation to general practice. I reserve my right, if I have to renew my application, to pursue the reasonable grounds of success but I think it is a waste of time for me to suggest that to you here.

THE DEPUTY JUDGE: I am sure you would never waste my time.

MISS BRETHERTON: Well, thank you. But I would ask, and I would say that this is an appropriate case for a first instance court to grant permission, when two practitioners who specialise in this field tell you at the start of the hearing of the importance of the matter, and tell you that there is no authority.

THE DEPUTY JUDGE: Right. Mr Johnson, I do not think I need to hear you unless there is something fundamental you want to say. I am not going to grant permission to appeal. It seems to me, for the reasons I have expressed as clearly as I can in my judgment, that the issues here are sufficiently clear to make me consider that there is neither a reasonable prospect of success, nor any other compelling reason to grant permission to the Court of Appeal.

MISS BRETHERTON: Thank you, my Lord. I would ask for a detailed public funding assessment as well.

THE DEPUTY JUDGE: Of course, yes. At the end of my judgment I did raise the point about the terms of the order. I do not know if either of you has had any further thoughts on that?

MISS BRETHERTON: Yes, my Lord, I drafted a draft order and I sent it to my learned friend. In relation to paragraphs 1 and 2 we are agreed in relation to the terms, paragraph 3 I sent with an X per cent, which we can now insert 50 per cent.

THE DEPUTY JUDGE: I thought for a minute you said exocet, but you did not.

MISS BRETHERTON: Sorry, X per cent; and in relation to paragraph 4, the detailed public funding assessment; paragraph 5 dealt with permission to appeal and I was suggesting you grant us both permission to appeal, but may I hand up a draft of that order. Obviously, you are against me in relation to paragraph 5.

THE DEPUTY JUDGE: I am afraid I am, yes. For all I know there may be an application by your opponent for permission to appeal, but I was dealing solely with your application, which I am afraid I am not going to grant.

MR JOHNSON: My Lord, the slightly peculiar circumstances are that, whilst we identify with the point that these are important issues, we do not actively seek permission to appeal. That is not to say, if the matter goes further, we may not cross-appeal but --

THE DEPUTY JUDGE: No. Thank you. Right.

MISS BRETHERTON: So I think if I were to re-draft it, inserting 50 per cent in paragraph 3, to amend paragraph 5 to read "permission to the claimant to appeal is refused".

THE DEPUTY JUDGE: Yes.

MISS BRETHERTON: I hope that would suit the purpose.

THE DEPUTY JUDGE: Yes, I think so. Just remind me, if you would, the decision of 16 June 2009 to which you refer, is what?

MISS BRETHERTON: That is the decision that my client was not eligible for the rent deposit.

THE DEPUTY JUDGE: It is the -- well, I think 16 June, according to my judgment, paragraph 17, is the Social Services assessment of the claimant's situation.

MISS BRETHERTON: I am sorry if I have got the wrong date.

THE DEPUTY JUDGE: It occurred to me, if you recall the claimant was told on 18 December 2008 that she was not eligible for funding.

MISS BRETHERTON: I am so sorry. There was then 18 August 2009 that they could not be of assistance with the rent deposit.

THE DEPUTY JUDGE: Yes. I think it is probably -- that is right, you are quite right. I think it is probably 18 August, is it not, rather than 16 June?

MISS BRETHERTON: Yes, I am so sorry, that is entirely my fault.

THE DEPUTY JUDGE: Well, subject to that, I am happy. You are happy with number 1 subject to my correction are you, Mr Johnson?

MR JOHNSON: I am, yes.

THE DEPUTY JUDGE: And you are happy with 2; number 3 says 50 per cent; number 4 we are happy with; number 5, you will have to change because I have not granted you permission. Right. Given that, can I leave you to assist the clerk by re-typing, or whatever you want to do, the order. Would you mind having carriage of the order so that she does not have to create an order on the basis of a case she has never heard. If you do not mind dealing with it, that would be very helpful.

MISS BRETHERTON: Of course, if I take her e-mail address that would help.

THE DEPUTY JUDGE: That would be great.

Thank you very much. Is there anything else?

MISS BRETHERTON: No, we are very grateful.