Aryubi & Anor, R (on the application of) v Birmingham City Council

Having dealt with the substantive matters, the only outstanding issue is the question of costs.

Under CPR Part 44, although costs are in the discretion of the court, the usual rule is that a successful party is entitled to its costs from the unsuccessful party. In this claim, the Claimants have no doubt been successful in that one of the decisions that they challenged – namely, the decision of 4 April 2014 of Ms Kennedy to terminate their market stall licences – is bad in law, and must be quashed. That is the basis upon which permission to proceed was granted; and the basis upon which I have allowed the judicial review.

However, Mr Verduyan for the Council relies heavily upon a letter sent to the claimants on 24 July 2014, shortly after permission to proceed was granted by his Honour David Cooke, in which the Council openly offered to settle the whole claim on the basis that there would be a complete de novo hearing of the disciplinary proceedings against the Claimants before an appropriate appeal body. That is, in essence, the result in practice of my substantive judgment of today. Consequently, although the Council accept that they should pay the costs of the claim up to the date upon which the Claimants should reasonably have accepted that offer (in, say, mid-August 2014 , the Council seeks it costs of the action from that date. Under CPR rule 42.2(4), in determining the appropriate costs order, the court is bound to take into account any admissible offer to settle. In my view, there is no doubt that the offer of 24 July 2014 ought reasonably to have been accepted by the Claimants, who have not in substance achieved anything more by pursuing this claim to a conclusion.

However, I also must take into account other conduct of the parties including (i) the claim as originally made also challenged an earlier decision of Mr Croxford; and (ii) after 24 July 2014, and despite the offer it had made, the Council continued to claim within the proceedings that Ms Kennedy’s decision was in law good.

Taking into account those matters and all relevant circumstances, including the timing of the offer in the proceedings (which was after permission to proceed had been granted, but before the Council had lodged detailed grounds for contesting the claim), I consider the appropriate order for costs is that there be no order. In my respectful judgment, sufficient money has been spent on this claim; and it is neither necessary nor appropriate for further money to be spent in respect of assessments of costs. In the circumstances of this case, in my view, an order that effectively requires each side to bear its own costs does justice as between the parties.