Ersus v London Borough of Redbridge
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 23 March 2016 |
| Neutral Citation | [2016] EWHC 1025 (QB) |
| Date | 23 March 2016 |
| Court | Queen's Bench Division |
| Docket Number | No: QB/2015/0545 |
[2016] EWHC 1025 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London
WC2A 2LL
Mr Justice Supperstone
No: QB/2015/0545
Zia Nabi appeared on behalf of the Appellant
Josephine Henderson appeared on behalf of the Respondent
(As approved)
The appellant appeals against the order of His Honour Judge Wulwik of 9 November 2015 making no order for costs in respect of the appellant's appeal brought under section 204 of the Housing Act 1996. That appeal was against the statutory review decision of the respondent council that the appellant and his family have been provided with suitable accommodation in performance of the council's main housing duty under section 193 of the Act. Permission to appeal was granted by May J on 5 February 2016.
The factual background to these proceedings can be stated shortly. The appellant is a Turkish national who was granted refugee status in September 2014. On 23 December 2014, he was joined in the UK by his wife and two daughters. By letter dated 9 February 2015, the council accepted that they owed the appellant the main housing duty under section 193 of the Act and were thus responsible for securing suitable accommodation for him and his family.
The appellant, his wife and two daughters, aged 17 and 8, were provided with one room at the Abury House Hostel, Ilford in Essex from about February 2015, the two daughters being required to share the room with their father who has mental health problems, including PTSD. The accommodation was owned/managed by the respondent.
The appellant challenged the suitability of the accommodation. The respondent in their review decision of 21 April 2015 concluded that, whilst the accommodation was perhaps not ideal for the appellant and his family, it was suitable as temporary accommodation. At the time the appellant had resided at the accommodation for just short of 60 days.
The council operated a broad first in, first out system, subject to consideration of individual circumstances. With the passage of time a person in the appellant's position would expect to move up the list until the respondent could make an offer of alternative temporary accommodation.
When the matter first came before the learned judge on 13 October 2015, the judge noted by reference to the respondent's skeleton argument (at paragraph 6 of his judgment), that the appellant was occupying his one room accommodation hostel on a very short-term basis as opposed to the short-term basis referred to in the review decision and that, according to the respondent, the appellant was reaching the top of the list and would shortly be made an offer of alternative temporary accommodation. When pressed by the judge, the respondent's counsel indicated that the respondent anticipated being able to make an offer of temporary alternative accommodation to the appellant within two to three weeks. In those circumstances, the judge adjourned the hearing for some four weeks in the hope that matters would resolve themselves. It has to be said that the case would probably have been adjourned in any event because of lack of time availability on the day.
On 5 November 2015, the appellant accepted an offer of a two-bedroom maisonette. The result was that the appeal became academic but the appellant still wished to pursue an application for costs against the respondent.
Having referred to CPR 44.2 and the principles governing the award of costs where a claim for judicial review or an appeal does not proceed to a contested hearing, the judge set out his analysis of the facts in the present case at paragraphs 14 to 20 of his judgment. His conclusions are at paragraphs 21 to 23. They need to be quoted in full:
"21. It is possible that it was only the bringing of these appeal proceedings which focused the mind of the respondent on the merits of the appeal, but I cannot say that with any certainty, and particularly having regard to the fact that the respondent says that the appellant was reaching the top of the list to be moved from the hostel accommodation when the matter came before me on 13 October, and that it is the passage of time, not these proceedings, which has resulted in the appellant being moved.
22. I cannot say with any certainty that the appellant would have won the appeal had the appeal been fought out, though I accept that he may well have done so. I cannot be satisfied, therefore, that there is a causal link between the bringing of the appeal and the offer of alternative temporary accommodation. I do accept that it was inevitable that the appellant would have been moved sooner or later.
23. In these circumstances, as it appears to me, I am thrown back on the fall-back position, which is that there should be no order as to the costs of these appeal proceedings."
There are three grounds for appeal. First, having correctly found that the appellant could be considered to be the successful party, had the judge directed himself correctly in the exercise of his discretion, he would have been bound to find that there was no good reason in this case to depart from the usual rule that the successful party is entitled to his costs. Second, the judge erred in not finding that the council had failed to substantiate the submission that the offer of accommodation rendering the appeal academic was wholly independent of the appeal. Third, the judge erred in law in not finding that in any event it was tolerably clear that the appellant would have succeeded in his appeal under section 204 of the Act and was entitled to his costs.
In determining this appeal, I have had regard to the following principles. First, as to the ambit of the costs enquiry in the lower court on discontinuance, in R v Liverpool City Councilex p Newman [1992] 5 Admin LR 669, Simon Brown J (as he then was) said at page 671:
"It would seldom be the case that on discontinuance this court would think it necessary or appropriate to investigate in depth the substantive merits of what had by then become an academic challenge. That ordinarily would be a gross misuse of this court's time and further burden its already over-full list."
More recently, in the R (on the application of Scott) v London Borough of Hackney [2009] EWCA Civ 217, Hallett LJ observed that:
"It will rarely be proportionate to enter into an overtly detailed forensic analysis of the issues and the evidence and assessment of which party would have won or lost on which issue. The discretion is a broad one, and it is exercised in broad fashion."
Second, as to the role of the appellate court, an appellate court should normally be very slow to interfere with any decision on costs. It should only do so if it can be shown that the judge has either erred in principle in his approach to costs or has failed properly to exercise his discretion.
Third, as to the approach to be adopted by the appellant court, I have regard to the observations of Pill LJ in Dempsey v London Borough of Sutton [2013] EWCA Civ 863 where he said at paragraph 24:
"There is a danger in taking an over-technical view of this question of costs, which has been the subject of a series of cases in this court. It will not always be necessary to try to consider the hypothetical...
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The Queen (on the Application of Bushra Parveen) v London Borough of Redbridge
...causative of the relief obtained.” 33 A subsequent case on causation, in the housing field, was Ersus v London Borough of Redbridge [2016] EWHC 1025 (QB). The claimant challenged the suitability of temporary accommodation, a room in a hostel which he had to share with his wife and two daug......