Royal Free London NHS Foundation Trust v Secretary of State for the Home Department (1st Defendant) Brent Borough Council (2nd Defendant) Samhir Mahmod Saker (Interested Party)
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Coulson |
| Judgment Date | 18 December 2013 |
| Neutral Citation | [2013] EWHC 4101 (Admin) |
| Date | 18 December 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/11080/2013 |
[2013] EWHC 4101 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Coulson
Case No: CO/11080/2013
The Queen on the Application of:
and
and
Mr George Thomas (instructed by Bevan Brittan LLP) for the Claimant
Ms Holly Stout (instructed by The Treasury Solicitor) for the 1 st Defendant
Ms Fiona Scolding (instructed by Brent Legal Services) for the 2 nd Defendant
INTRODUCTION
This is an application by the claimant against both defendants for the costs of these judicial review proceedings. There is also an application by the second defendant, the London Borough of Brent, to set aside that part of the order of His Honour Judge Thornton QC dated 11 October 2013 by which he ordered the second defendant to pay £2,000 as a contribution to the first defendant's costs. It is an unhappy fact that this hearing, and this judgment, concern relatively modest sums by way of costs which are being disputed by parties who are ultimately funded by the taxpayer.
THE UNDERLYING PROCEEDINGS
In the underlying judicial review proceedings, which were started on 13 August 2013, the claimant sought judicial review of various decisions made by the first and second defendants concerning the interested party, Mr Saker, whose immigration status was uncertain. He had been treated in one of the claimant's acute bed wards and had not been discharged because of the difficulties of finding alternative accommodation for him. The critical decisions that were the subject of the judicial review proceedings were a decision by the first defendant on 16 May 2013, which noted that there was no available bed in an immigration detention centre. This was said to be a relevant consideration because of the first defendant's stated intention at that time to deport Mr Saker. There was also the decision of 16 July 2013 by the second defendant, which refused to provide Mr Saker with accommodation.
In his order of 13 October 2013, Judge Thornton QC granted the claimant permission to bring judicial review proceedings against the second defendant but refused permission against the first defendant. The reasons for his findings against the second defendant were set out as follows:
"1. Second defendant. The first defendant's summary grounds of defence clearly and cogently set out reasons why the second defendant has a statutory duty to provide the claimant with section 21 NAA care and attention and why the second defendant's refusal is, or appears to be, maintained on an erroneous understanding of the interested party's entitlement to remain in the United Kingdom. It appears from those summary grounds that the interested party has erroneously proceeded on the basis that the interested party was and remains subject to removal from the United Kingdom for non-exercise of Treaty Rights. In fact the interested party is the holder of an unrestricted Residence Permit.
2. On that basis, the interested party is entitled to care and attention from the second defendant. What is equally clear is that the interested party is bed blocking a space urgently needed in one of the claimant's acute bed wards and has been required to be held there for many weeks after he should have been discharged if suitable accommodation had been made available to him by the second defendant.
3. There is an urgent need for the interested party to be provided with facilities to enable him to be safely discharged from the claimant. The second defendant is, through the claimant's solicitor and in conjunction with the claimant, to arrange any necessary assessment and to apply its statutory duty under section 21 of the NAA so as to enable the interested party to be safely discharged on, at least, an interim basis. The long-term accommodation arrangements will need to be sorted out thereafter and finalised by arrangement or by the Administrative Court at a substantive hearing."
As noted, the first defendant's acknowledgment of service sets out clear reasons why the failure to provide suitable accommodation for Mr Saker was nothing to do with the first defendant. Judge Thornton accepted those submissions. He refused to grant the claimant permission to bring judicial review proceedings against the first defendant and he noted in paragraph 7 of his order that Mr Saker's immigration status was irrelevant to the second defendant's obligation to provide alternative accommodation. That reinforced the conclusion that there was no claim against the first defendant.
The claim against the second defendant has now been compromised save for the issue as to damages, with which I am not asked to deal today. The parties have agreed that this matter should be considered in the Queen's Bench Division. However, as I have noted, there remain live issues as to costs.
THE CLAIMANT'S CLAIM FOR COSTS AGAINST BOTH DEFENDANTS
The claimant seeks its costs against both the first and second defendants. On the face of it this is surprising, since the claimant had lost against the former but won against the latter. Although I pressed him on this stance at the outset of the hearing, Mr Thomas, on behalf of the claimant, submitted that, in all the circumstances, the claimant was entitled to its costs from both defendants and continued to maintain a claim for costs against the first defendant. This necessitated a consideration of the relevant parts of the Civil Procedure Rules, which was not a topic which had featured in the claimant's skeleton argument.
Pursuant to CPR Part 44.3(2)(a), the general rule is that the successful party is entitled to its costs against the unsuccessful party. In this case the claimant has been successful against the second defendant, and is therefore entitled to its costs against the second defendant. What about the first defendant?
In my view, having considered the submissions made and the material in the papers, there is no legitimate basis on which I could or should order that the claimant is entitled to recover any part of its costs against the first defendant. There are a number of reasons for that. The principal one, of course, is that the judicial review claim against the first defendant failed. Accordingly, the general rule means that the claimant is not entitled to its costs against the first defendant: the claimant was manifestly not the successful party as against the first defendant.
The claimant's correspondence, the pre-action letter of 1 August 2013, and the claimant's submissions (including the submissions advanced today) all appear to hinge on the proposition that the proceedings against the first defendant were justified because the first defendant had repeatedly indicated, earlier in the year, that Mr Saker would be deported as an over-stayer. The suggestion, therefore, is that by stating this intention on a number of occasions, the first defendant somehow acquired the responsibility for ensuring suitable alternative accommodation for Mr Saker once his medical treatment had been completed. As I pointed out to Mr Thomas, this meant that the claimant was really arguing that, notwithstanding the failure of the judicial review proceedings against the first defendant, the first defendant's conduct pursuant to CPR 44.3(4)(a) and (5) was a relevant consideration and was the reason why costs should be awarded against her.
In my view, that was a wholly erroneous stance for a number of reasons. First, it seems to me that such a submission had the effect of going behind Judge Thornton's decision, because he ruled that, whatever had been the first defendant's earlier intention as to deportation, there was no case in law against her. It is not legitimate to go behind the underlying judgment on the merits, much less endeavour to contradict it, in order to argue about costs.
Secondly, an analysis of the facts demonstrates that the duty to provide suitable accommodation always rested with the second defendant. It was the second defendant who failed in the discharge of that duty. The suggestion that, because the first defendant intended to deport Mr Saker for breaching his conditions of leave, she had some sort of obligation to deprive him of his liberty and provide him with accommodation by detaining him in a detention centre, is plainly misconceived. There was no obligation to deport him; it was that conclusion that led to Judge Thornton's rejection of the claim against the first defendant in the first place.
Other matters of alleged conduct were raised by the claimant but they add nothing. First, it was said that the first defendant indicated at one point that a suitable bed would be found. There was correspondence to that effect, although in the event no such bed was available. However, this did not create a stand-alone legal obligation which was not otherwise there. Secondly, Mr Thomas complained that there was a long period in the run up to the judicial review proceedings, which he described as 'a wall of silence', when no responses were received from the first defendant. Again, it seems to me that it was for the claimant to resolve the question of Mr Saker's accommodation with the second defendant, not anybody else. Moreover, I note that all of this occurred before these proceedings were even contemplated, and therefore has...
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