Rashid v London Borough of Merton
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Sales |
| Judgment Date | 10 May 2016 |
| Neutral Citation | [2016] EWCA Civ 622 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 May 2016 |
| Docket Number | C1/2014/3889 |
[2016] EWCA Civ 622
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(HIS HONOUR JUDGE BIDDER QC)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lady Justice Arden
Lord Justice Sales
C1/2014/3889
Mr C Butler (instructed by John Ford Solicitors) appeared on behalf of the Appellant
Mr P Mant (instructed by London Borough of Merton) appeared on behalf of the Respondent
This appeal is about the costs of judicial review proceedings. The essential question in the proceedings was the funding of an appropriate placement for the Appellant, who has special educational needs. He was the Claimant below and his mother was in the case his litigation friend.
The matter was settled on the basis that the Administrative Court would make an appropriate order as to costs. His Honour Judge Bidder made an order that there should be no order as to costs. That is the order under appeal.
This will be a short judgment. This case turns on the precise facts of this particular case. The result of the appeal is, therefore, of interest only to the parties. It is unnecessary for me to set out the terms of the compromise or the background to it in detail or the reasons given by the judge. For the same reason, it is not necessary to set out the parties' submissions or to summarise the cases to which they have referred the court. All those matters are well-known to the parties.
The appeal involves the application of established principles. The principal authority is M v Croydon LBC which identifies three broad categories of case of which only (ii) and (iii) are relevant. The relevant passage describing those categories is as follows:
i. "(ii) A case where the Claimant has only succeeded in part following a contested hearing or pursuant to a settlement, and
ii. (iii) A case where there has been some compromise which does not actually reflect the Claimant's claim."
The appropriate order for costs in these categories will depend on the facts of the case. The court may decide that it is appropriate to make no order for costs but it may decide on some other order. Often this is because it forms a view about who was the successful party.
In this case in March 2013 the Administrative Court made an interim order requiring the Respondent to make payments each week towards the placement of the Appellant at the Higashi School in the United States. The court gave the Respondent a short amount of time to put in submissions. The Respondent put in a letter opposing an order, but an interim order was then made ex parte. Then the Respondent put in summary grounds of opposition in which it asked for a "rolled up" hearing at which it would apply for discharge of the interim order as well as deal with the merits of the application, but that application was never, in the event, heard.
In my judgment, these proceedings were a holding measure to obtain funding for the school of the parents' choice abroad in the United States while a place at a school in the Uk, Thornbeck College, which was acceptable to them became available. This happened in June 2013. The Appellant was, as I see it and will explain in more detail, the winner.
It is true that a claim for long term funding at Higashi School was raised in these proceedings and was never decided, but the position is that that issue became academic. The Respondent did not press during the currency of the proceedings for the child to be taken to any other school before that indeed happened following the compromise. As I see it, the Respondent was not, as it contends, disadvantaged by the delay in getting the discharge application heard. Indeed, it never pressed for these proceedings for the discharge of the interim order to be heard on an expedited basis.
What happened was that the Respondent made an application for the matter to be heard within four weeks in its summary grounds, but it never followed that matter up. In July 2013 the matter came before Lord Carlisle QC and he made directions for a hearing after 28 August, but there was no application before him for expedition. In the meantime, a place had become available at Thornbeck College. The Respondent in effect accepted that the Appellant should move from Higashi School to Thornbeck College when that place became available.
That is, in summary, how I see it. Now for the arguments. The Appellant's principal argument based on category (ii) in the Croydon case before the judge was that the judge should have awarded the Claimant costs as the substantial winner and that the Respondent had had to accept, contrary to its principal grounds of opposition in the proceedings, that it had statutory power to make payments towards the placement of a person outside the United Kingdom.
It also, as I see it, wrongly made the point that the Respondent had by the compromise and prior to negotiations accepted that it had that power because it continued to fund the Appellant at Higashi School until the place at Thornbeck College actually became available. I am not persuaded by their arguments. The local authority had power to make payments pursuant to the judge's interim order and indeed to settle that matter. As I read the documents, the Respondent merely agreed to make interim payments because of the interim order.
Turning to the Respondent, the Respondent's first argument before the judge was that the principal ground of opposition contained an issue of law which had never been decided so the court could not say who the winner on that issue was and thus this was primarily a category (iii) case. I accept that...
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