CVN, R (on the application of) v London Borough of Croydon

This is a short judgment on costs.

It follows my judgment in CVN v London Borough of Croydon [2023] EWHC 464 (Admin) (the “Judgment”) and should be read in conjunction with that decision.

Introduction

The claimant CVN arrived in the United Kingdom as an unaccompanied child seeking asylum. He exhausted his appeal rights, but challenged the defendant local authority’s decision on 23 February 2022 to end accommodation and other leaving care support it had been providing him for several years. Following a fully contested substantive hearing, he succeeded and the decision was quashed. Directions were made for submissions on costs. I have received skeleton arguments from parties (defendant, 24 February 2023, 10pp. (“DS”); claimant, 2 March, 3pp. (“CS”)). Once more, Ms Ward KC acts for the claimant and Mr Hoar for the defendant.

As a preliminary point, the claimant complains that there has been no justification from the defendant for departure from the ACO Costs Guidance on limiting the length of written submissions (see [17]). There it states:

However, that guidance from April 2016 states in terms at [1] that:

Indeed, the full title of the guidance says much the same. There was no settlement here – a matter of some significance, as will be seen shortly. In any event, due to the complexity of this case, I find it necessary to consider all submissions in their entirety in fairness to both parties.

The claimant seeks costs on an indemnity basis. The defendant argues for no order for costs or only costs following July 2022 (“only a portion” of costs, DS/§1) – that was when it received information from the claimant about his possible humanitarian claim.

Costs/No costs

I can take this matter shortly.

The defendant’s analysis suffers from a fundamental category error. In R (M) v Croydon LBC [2012] 1 WLR 2607 (CA), Lord Neuberger MR (as then was) held in respect of costs in judicial review:

The case before the court is plainly not a Category (ii) case. This is because the claimant has been wholly successful following a contested hearing. He sought to quash the defendant’s decision of 23 February 2023; it was quashed (see Judgment [14], [96]). He sought a declaration; it was granted (ibid. [97]). I note that the section of M v Croydon in which Lord Neuberger MR provided the guidance is entitled “The position where cases settle in the Administrative Court”. This case has not settled. It was contested and won resoundingly by the claimant. In such circumstances, decided authority mandates a “sharp” distinction between the two categories of cases.

The rule therefore is that costs follow the event, subject to the court’s general discretion. This discretion is found at CPR 44. It provides insofar as material:

It was put this way in M v Croydon at [61]:

The defendant has not identified or identified with sufficient clarity what the “good reason” or “special circumstances” would be to justify a departure from orthodox practice. If the argument (not made sufficiently explicit) is that such deviation is merited by the pre-July situation, the submission in any event faces another decisive obstacle.

The starting-point is that the defendant has never made the decision now contended for, that the claimant’s proposed application to the Secretary of State for the Home Department was “obviously hopeless or abusive” (DS/§3). Counsel made submissions to that effect, but there has been no decision. The defendant submits (DS/§21) that the court:

I judge that the court could not safely decide on the materials before it which party would succeed on the forensic hypothetical the defendant now presses to be determined. As stated in M v Croydon at [51] (and see also [62]-[63]):

The decision here is not “tolerably clear” – far from it. The further determination sought by the defendant would necessitate at the very least further detailed written submissions, but in all likelihood a further hearing for the exclusive purpose of resolving the question of costs. That would be disproportionate (see also R (MH (Eritrea)) v SSHD [2023] 1 WLR 482 at [46]). I fail to see how this falls into the category of being “without much effort”. Further, the Lord Neuberger’s judgment continues at [51]:

This case did proceed to trial. The defendant lost. The defendant now wishes the court to consider a question that parties agreed at trial was unnecessary to determine and had been “academic” (see, for example, CS/§5). The defendant conducted proceedings until the very eve of the trial on the basis that it could not take into account the claimant’s proposed humanitarian claim until the Secretary of State had considered it. The defendant finally conceded what was obvious: this stance was plainly wrong in law (see concession at DS/§7(5)). As this court recorded in the Judgment at [18]:

In any event, in exercising my wide discretion (CPR 44.2(1)), I first take into account the conduct of the defendant in failing to provide any or any proper support to the claimant in making and application on humanitarian grounds. The defendant was duty-bound to act as CVN’s corporate parent. The scope of such duty was explained by Christopher Clarke LJ in R (GE (Eritrea)) v Secretary of State for the Home Department [2014] EWCA Civ 1490 at [17]:

On this question so critical to his entire future, the claimant was not or not adequately supported by the defendant. In that void, he resorted - and was forced to resort - to a pro bono advice agency, the Refugee Law Clinic provided by the University of London. That does great credit to the University, but none to the defendant. CVN, a former relevant child and someone with multiple vulnerabilities, was plainly unable to assess this complicated legal situation and make meaningful representations on his own.

Second, the defendant shifted its position significantly extremely late in the forensic day. It sought to argue in a strained way that the definition of “Convention rights” referred to in Schedule 3 Paragraph 3 of Nationality, Asylum and Immigration Act 2002 does not include Article 3 of the European Convention on Human Rights (see Judgment [31]-[68] for rejection of argument).

Third, the defendant sought to argue that the interference with the claimant’s Article 2 Protocol 1 right to education was proportionate. The court ruled that it was not (see Judgment [69]-[88] for rejection of further argument).

The short point is that once the defendant directed itself – albeit very late in the day – to the correct legal position, it could have settled this claim. It chose not to. It contested it on two essential bases, both of which were rejected by the court. Without the court being confident that it can make a decision about the merits of the unargued point, the defendant’s costs position is bound to fail. I have indicated that the materials do not reveal a “tolerably clear” further decision. Therefore, I reject the defendant’s argument about the principle of costs.

Indemnity costs

I am bound to observe that I have found the conduct of the defendant to be suboptimal in several respects. The changes to its stance have indicated a lack of clarity of thought in its overall approach. But that is not the same as meeting the demanding test to merit an award of indemnity costs. For an example of a recent award of such costs in judicial review proceedings, see my judgment in PZX v Secretary of State for the Home Department [2022] EWHC 2890 (Admin). I judge that in this case, the conduct of the defendant overall does not meet the requisite standard of being “out of the norm” (Excelsior Commercial and Industrial Holdings Ltd [2002] EWCA Civ 879 at [31] per Lord Woolf LCJ, at [39] per Waller LJ) or “something outside the ordinary and reasonable conduct of proceedings” (Esure Services Ltd v Quarcoo [2009] EWCA Civ 595). Ultimately, the court must deal with the case “justly”, as an expression of the overriding objective (CPR 44.3.9; CPR 1.1(1)). I judge that it would be unjust and disproportionate to order the defendant to pay indemnity costs in this case.The plain fact is that it sought to contest the claim on a number of shifting bases, but those forensic repositionings did not, to my mind, amount to unreasonable conduct or conduct out of the norm. It contested the claim in various ways and lost.

Further, I reject the claimant’s additional submission that there should be indemnity costs attaching to the cost of responding to the defendant’s costs skeleton (CS/§9). It was reasonable for the defendant to make detailed costs submissions, overambitious and ultimately unsuccessful though they were.

Costs should be assessed on the standard basis.

Disposal

I make the following orders:

That is my judgment.