The Court House
Oxford Row
Leeds LS1 3BG
Before :
His Honour Judge Behrens
sitting as a Judge of the High Court in Leeds
Between :
The Queen on the application of
KEVIN SUTTON (by his litigation friend the Official Solicitor) | Claimant |
- and - | |
CALDERDALE COUNCIL | Defendant |
Lindsay Johnson (instructed by Switalskis) for the Claimant
Tim Stead (instructed by Calderdale Council) for the Defendant
Hearing date: 14 March 2012
Judgment
Judgment on Costs
Judge Behrens :
Introduction
On 6th September 2011 Mr Sutton issued Judicial Review proceedings against Calderdale Council in which he claimed a variety of relief in relation to his accommodation and other needs. On the same day he sought urgent interim relief. The matter came before Judge Richardson QC on 7th October 2011 and myself on 14th October 2011. No substantive relief was granted on either occasion. The matter came back before the Court on 14th March 2012 pursuant to a direction made by Judge Langan QC on 22 February 2012. On that occasion the application for Judicial Review was withdrawn. Nevertheless Mr Sutton seeks an order for costs against Calderdale Council on the ground that he has achieved everything he set out to achieve in his application. Calderdale Council resist the application and contend that there should be no order as to costs.
History
Events before the Involvement of Calderdale Council
Mr Sutton was born on 19 June 1963. In 2005 he was diagnosed with paranoid schizophrenia. He was subsequently diagnosed with paranoid disorder, depression and mixed anxiety and depressive disorder. For these conditions he took antidepressant and antipsychotic drugs.
In 2007 Mr Sutton was granted an assured tenancy of 36 McBurney Close Halifax by Pennine Housing (“PH”) a social landlord. Between April and June 2011 Mr Sutton engaged in a course of aggressive and destructive behaviour: he ripped the kitchen cupboards from the walls, threw them out of the window; ripped out electrical fittings, exposing electrical wiring, was abusive to housing officers and attempted to set fire to his flat.
On 27 June 2011 PH obtained an urgent injunction against Mr Sutton from Bradford County Court under section 153A Housing Act 1996. The injunction included a power of arrest. When served with the injunction Mr Sutton threw boiling water at the process server. On 4th July 2011 an order was made excluding Mr Sutton from his flat. On 13th July 2011 Mr Sutton broke the injunction and set fire to his flat. He was arrested and charged with arson.
On 15th July 2011 Mr Sutton appeared before the Bradford County Court as a result of the breach of the injunction. He was remanded in custody for the purpose of obtaining a psychiatric report.
On 21st July 2011 Switalskis, the solicitors acting for Mr Sutton instructed Dr Hodgson to provide a psychiatric assessment of Mr Sutton. At that time he was facing possession proceedings and injunction proceedings designed to exclude him fm the area surrounding his home.
Dr Hodgson attempted to interview Mr Sutton on 29th July 2011 at HMP Armley but Mr Sutton refused to be interviewed. Nevertheless Dr Hodgson produced on 2nd August 2011 a lengthy report summarising the medical reports then available. As he had not seen Mr Sutton he was not able to make detailed comments on his ability to litigate and on the other matters on which he was asked to comment.
At a further hearing on August 5th 2011 Mr Sutton was further remanded in custody until 25th August 2011 Dr Hodgson interviewed Mr Sutton at HMP Armley on 17th August 2011 and produced an addendum to his report on 19th August 2011. He .concluded:
that Mr Sutton did not have the capacity to follow complex court proceedings or to litigate.
that Mr Sutton suffers from paranoid Schizophrenia, a severe and enduring mental illness. Mr Sutton would be likely to suffer from a disability and he recommended that Mr Sutton received “a full Health and Social Care assessment to determine the level of his healthcare and social needs and level of disability he faces.”
that treatment could be effectively provided in the community.
that Mr Sutton would require housing in order to access a package of community treatment and support.
Involvement of Calderdale Council
On 23rd August 2011 (a Tuesday) Switalskis contacted Calderdale Council for the first time. In the letter it set out the predicament facing Mr Sutton describing him as an extremely vulnerable individual and enclosing a copy of Dr Hodgson’s reports. It asks Calderdale Council to carry out an urgent Community Care assessment and referred it to section 47 of the National Health Services and Community Care Act 1990 (“the 1990 Act”). It asked Calderdale Council to arrange an assessment at Armley prison to include provision for accommodation for Mr Sutton. It required a response by 4 p.m that day and threatened judicial review proceedings in the absence of a satisfactory response.
On 24th August 2011 Switalskis sent a letter to the legal department of Calderdale Council making many of the points that had been made in the letter of 23rd August 2011. The letter points out that Mr Sutton may be homeless after the hearing on 25th August 2011. It points out that Julie Singh, who would be dealing with the matter on behalf of Calderdale Council would not be available till 4 p.m 24th August 2011. This was described as unsatisfactory and the letter concluded by repeating the intention to issue judicial review proceedings.
On 25th August 2011 representatives from Calderdale Council attended Court with the intention of carrying out the assessment there and then. However Mr Sutton was not produced from HMP Armley with the result that no assessment was possible. According to Mr Stead attempts were made to organise that the assessment was carried out by the Low Secure consortium at Armley. Mr Sutton was remanded in custody for a further week.
On 31st August 2011 Dr Hodgson prepared an addendum to his report in which he expressed the view that Mr Sutton was insane within the meaning of the M’Naughten rules.
No assessment was carried out at HMP Armley so that by 1st September 2011 Calderdale Council accepted that they would have to carry out the assessment themselves.
On 6th September 2011 the injunction against Mr Sutton was discharged. He was found a bed at a psychiatric unit at the Elmdale Ward, Calderdale Royal Hospital. On 6th September 2011 Julie Singh had completed a 7 page health and social care needs assessment. Amongst the matters included in the report were the following:
Following an assessment by CMHT on 6.9.11 it was decided that eh needed a longer period of assessment as an inpatient to fully determine whether eh has an underlying psychotic illness as he ahs some thought processes which appear psychotic in nature.
he does not appear to understand or respect the authority of the MHA so may require transfer to a PICU.
Treatment plan – to continue assessment. Brain scan to be arranged. Review under MHA as on section 2
There was an updated assessment on 13th October 2011. It is not necessary to refer to that in detail. It is plain from the assessment that the prognosis was still unclear and that a forensic assessment by Dr Leaki was still not complete. It was clear that there were problems on the ward because he had made threats against other members of staff and other patients. He had expressed a desire to move back to Portchester, in Hampshire where his parents and siblings live.
On 17th October 2011 he was detained under section 3 of the Mental health Act 1983 until 9th December 2011. thereafter he remained on Elmdale Ward as a voluntary patient.
On 13th March 2012 an updated assessment was prepared. That makes it clear that Mr Sutton is ready for discharge from Elmdale Ward. The process of moving to Portchester is taking time. In the meantime he was moved to Wells House in order to help him adjust to independent living once more.. Under the heading History there appears:
He has been in Armley prison … He has been resident on Elmdale ward, The Dales Unit, Calderdale Royal Hospital since the 6.9.11. He has undergone a sustained period of assessment of his mental health needs whilst an inpatient which has included a brain scan to clarify any possible brain damage. This has now been ruled out as a reason for his behaviours. He has had continued input from occupational therapist and mental health staff to support him. He ahs also had a forensic assessment which identified eh should be detained under the Mental Health Act 1983 and a Community Treatment Order be considered on discharge from hospital. He was subsequently reviewed by the Mental health Tribunal on 9.1.12 and his section 3 MHA was rescinded so he is now an informal patient.
The Judicial Review proceedings
These judicial review proceedings were commenced on 6th September 2011 approximately 2 weeks after the letter of 23 August 2011 which alerted Calderdale Council to the situation. The relief sought was a mandatory order requiring Calderdale Council to identify accommodation suitable for Mr Sutton, a declaration that Calderdale Council had acted unlawfully in failing to assess Mr Sutton’s needs, a declaration that Mr Sutton was in need of community services and an order requiring such services to be provided.
The matter came before Judge Richardson QC on 7th September 2011. By that time Mr Sutton had been found a bed in Elmdale Ward with the result that Judge Richardson QC adjourned the matter with liberty to restore.
The matter came before me on 14th October 2011. At the hearing I refused to dismiss the application but made no order on the claim for interim relief. I stayed the matter for 6 weeks in the hope that the parties could reach an amicable solution.
In January 2012 and February 2012 there was an exchange of correspondence between the parties. In summary Switalskis contended that there had been no assessment within section 47 on the 1990 Act. Calderdale Council contended that assessment was an ongoing process.
On 22 February 2012 Judge Langan QC directed that the case be listed for review so as to determine whether the case was to proceed. That application came before me on 14th March 2012. The assessment of 13th March 2012 was produced the day before the hearing. Mr Johnson accepted that the 13th March assessment was a valid assessment and therefore withdrew the claim. He, however, applied for costs. He submitted that there was a history of delays by Calderdale Council. They produced assessments on the day before hearings before the court. It had taken 7 months to obtain a valid assessment and therefore the Court should award Mr Sutton the costs.
Calderdale Council contended that they had acted with all proper promptness throughout the proceedings. This was a complex case. They had demonstrated throughout a willingness to comply with their obligations. They had attended court on 25th August and were by 6th September involved in finding Mr Sutton a place in Elmdale Ward, and carrying out the necessary assessment. The assessment took a considerable period of time for the reasons set out in the assessment. It was quite unnecessary to issue Judicial Review proceedings on 6th September 2011. The proper order is that there should be no order as to costs.
The law relating to costs
In the very recent case of Broom v Secretary of State for Justice [2012] EWCA Civ 275 Rimer LJ summarised the law relating to costs by reference to the guidance given by Scott Baker J in R (Boxall) v. LB of Waltham Forest (2001) 4 CCL Rep 258 in relation to the awarding of costs in judicial review cases that have been resolved:
‘22. Having considered the authorities, the principles I deduced to be applicable are as follows:
the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.
it will ordinarily be irrelevant that the Claimant is legally aided.
the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;
at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.
in the absence of a good reason to make any other order the fall back is to make no order as to costs.
the court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.’
As Rimer LJ pointed out the guidance was endorsed by the Court of Appeal in R (on the application of Scott) v. London Borough of Hackney [2009] EWCA Civ 217, although Hallett LJ, at [51], said that a reasonable and proportionate attempt must be made to analyse the situation and determine whether an order for costs is appropriate and that a judge must not be too ready to adopt the ‘no order’ fall back position.
Rimer LJ also referred to additional guidance in The Queen on the Application of Bahta and Others v. Secretary of State for the Home Department and Others [2011] EWCA Civ 895, also a ‘costs only’ case. That reflects that, in a case in which the claimant succeeds in his claim, the general rule is that he is entitled to costs, and the burden is on the defendant to show otherwise. In the course of his judgment, Pill LJ said:
‘64. In addition to those general statements, what needs to be underlined is the starting point in the CPR that a successful claimant is entitled to his costs and the now recognised importance of complying with Pre-Action Protocols. These are intended to prevent litigation and facilitate and encourage parties to settle proceedings, including judicial review proceedings, if at all possible. That should be the stage at which the concessions contemplated in Boxall principle (vi) are normally made. It would be a distortion of the procedure for awarding costs if a defendant who has not complied with a Pre-Action Protocol can invoke Boxall principle (vi) in his favour when making a concession which should have been made at an earlier stage. If concessions are due, public authorities should not require the incentive contemplated by principle (vi) to make them.
When relief is granted, the defendant bears the burden of justifying a departure from the general rule that the unsuccessful party will be ordered to pay the costs of the successful party and that burden is likely to be a heavy one if the claimant has, and the defendant has not, complied with the Pre-Action Protocol. I regard that approach as consistent with the recommendation in paragraph 4.13 of the Jackson Report.’
5 Discussion
In my view the proper order in this case is that there should be no order as to costs. First this is not a case where any relief has actually been granted to Mr Sutton. It is true that Mr Sutton was found a place in Elmdale Ward on 6th September 2011 but I am far from convinced that these proceedings were necessary to achieve that result. This was a complex case and it is by no means clear that the finding of an appropriate place within two weeks of being consulted meant that Calderdale Council was in breach of any of its obligations to Mr Sutton. Second I do not accept Mr Johnson’s submission that no proper assessment was made until March 2012. It is perfectly that a number of detailed interim assessments were made between September and March. It is difficult to see how Calderdale Council could have made a final assessment until after the Mental Health Tribunal on 9th January 2012. I do not, for my part regard the period between January and March on the complex facts of this case as representing any breach of Calderdale Council.
It follows that it is by no means obvious that Mr Sutton would have succeeded and, as I have indicated, there will be no order as to costs between the parties.