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R (B by her litigation friend MB) v London Borough of Lambeth [2006] EWHC 639 (Admin)

This judgment concerns costs arising from judicial review proceedings brought by B but subsequently resolved by agreement. No order for costs was made.

In his judgment Mr Justice Munby reiterates his decision in R (P, W, F, and G) v Essex County Council [2004] EWHC 2027 (Admin) concerning the poor conduct of judicial review proceedings, stating that he made no order for costs with "considerable misgivings". He also warns that "from now on practitioners should expect a more robust response to this kind of bad practice".


Case No: CO/00094/2006

Neutral Citation Number: [2006] EWHC 639 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL

Friday, 7th April 2006

Before :


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Between :

R (B by her litigation friend MB) Claimant

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(Transcript of the Handed Down Judgment of

Smith Bernal WordWave Limited

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Official Shorthand Writers to the Court)

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Mr Ian Wise (instructed by Scott-Moncrieff Harbour & Sinclair) for the claimant (child)

Mr Jon Holbrook (instructed by Sternberg Reed Taylor & Gill) for the defendant (local authority)

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As Approved by the Court

Crown Copyright ©

Mr Justice Munby :

1. These are proceedings for judicial review. They have been resolved by agreement, save as to costs, but the issues which lie behind the costs dispute involve important matters of principle and practice which justify a judgment directed to a wider audience.

2. B was born on 16 September 1990 and is therefore 15½ years old. She has had many difficulties in her short life. These difficulties culminated for present purposes in November 2005 when she was thrown out of the family home and became homeless. Correspondence on her behalf with the local authority began on 9 December 2005. On 23 December 2005 the local authority commenced and on the same day completed an initial assessment of B under the Children Act 1989. There was further correspondence.

3. On 6 January 2006 B began judicial review proceedings against the local authority. On 9 January 2006 Cox J made an order abridging time for service of the local authority's acknowledgement of service to 10 January 2006 and directing an early hearing of B's applications for permission and interim relief. The local authority filed its acknowledgement of service on 12 January 2006. The matter came before Silber J on 13 January 2006. On the local authority's undertaking to carry out a comprehensive assessment of B's needs within 14 days, Silber J adjourned the application for permission to 6 February 2006, directing that it should be heard by a nominated judge who is also a judge of the Family Division. He made a mandatory order requiring the local authority to put and maintain B in a specified placement – at the P hotel – until 18 January 2006. The matter came before Collins J on 18 January 2006, when he extended Silber J's order until the permission hearing.

4. In accordance with the undertaking it had given to Silber J on 13 January 2006 the local authority commenced on 23 January 2006 and completed the following day, 24 January 2006, an updated core assessment (there had been an earlier core assessment completed on 27 April 2004). The local authority did not think that B's placement in the P hotel was appropriate. The core assessment proposed that B should reside in an approved residential establishment for a period of up to six months, so that appropriate preparation and support could be given to her in order that she should take the next step to semi-independence. B and her litigation friend did not agree.

5. The application for permission and for a further extension of Silber J's interim order came on before me on 9 February 2006. It was adjourned, in circumstances I must return to below, for seven days. By the time the matter returned before me on 16 February 2006 the case had settled, save only for an issue in relation to costs. Having heard argument I made an order that there be no order as to costs save for a detailed assessment of B's publicly funded costs.

6. In the form in which it was issued on 6 January 2006, B's Form N461 identified the decision being challenged as:

"The failure of the Defendant to provide the claimant with appropriate accommodation and support in accordance with its obligations under sections 17 and 20 of the Children Act 1989 and the failure of the Defendant to carry out an assessment and care plan in accordance with the Framework for the Assessment of Children in Need and their Families."

Amongst the relief being sought were mandatory orders that the local authority provide B with "a full and effective assessment and care plan in accordance with its statutory obligations" and that it make provision for her "consistent with the assessment and care plan."

7. I do not need to take up time analysing the provisions of sections 17 and 20 of the Children Act 1989. So far as is relevant for present purposes I need do no more than refer to paragraphs [3]-[10] of my judgment in R (P, W, F and G) v Essex County Council [2004] EWHC 2027 (Admin).

8. The Framework for the Assessment of Children in Need and their Families ("the Framework") is guidance published under that title in 2000 by the Department of Health, the Department for Education and Employment and the Home Office. Issued under section 7 of the Local Authority Social Services Act 1970 it is binding on the local authority in accordance with the provisions of that Act. For present purposes the only provisions of the Framework I need refer to are paragraphs 3.9-3.11. Paragraph 3.9 provides that what is called the "initial assessment" is to be undertaken within a maximum of 7 working days of the initial referral to social services. Paragraphs 3.9 and 3.10 indicate what an initial assessment should cover. Paragraph 3.11 provides that what is called the "core assessment" is to be completed within a maximum of 35 working days from completion of the initial assessment. Judicial guidance as to the kind of detail and specificity required in such assessments is to be found in R (AB and SB) v Nottingham City Council [2001] EWHC Admin 235, [2001] 3 FCR 350, and R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin), [2005] 2 FLR 860. The initial assessment in the present case having been completed on 23 December 2005 the local authority would accordingly normally have had until 15 February 2006 to complete the core assessment. In the event, and because of the undertaking given to Silber J on 13 January 2006, it was in fact completed, as we have seen, on 24 January 2006. (I might add that it has never been clearly explained on what basis it was being asserted when the proceedings were issued on 6 January 2006 that the local authority was in breach of its obligations to carry out an assessment, given that it had prepared an initial assessment and that the time for completing a core assessment was still running. This is not, generally speaking, a context in which quia timet relief is appropriate.)

9. In his skeleton argument prepared for the hearing before Collins J on 18 January 2006, Mr Jon Holbrook on behalf of the local authority had voiced various criticisms of B's Form N461 and specifically drawn attention to the need for properly particularised grounds.

10. He asserted that, contrary to good practice and the requirements of the Civil Procedure Rules, the claim form did not specify any discrete grounds of judicial review, in the sense that there was no simple statement of what the local authority was alleged to have done (or not done) that was unlawful. In relation to the alleged failure to provide appropriate accommodation he complained that in the absence of properly articulated grounds the local authority could only surmise on what basis the claim for judicial review was being advanced. He drew attention to the fact that nothing in B's grounds addressed the fact that the local authority had offered to provide two alternative types of accommodation for B – seemingly they had not been to her liking. He submitted, correctly in my judgment, that the local authority's duty, whatever it might be, was not to provide accommodation of B's choice. He drew attention to and quoted from my judgment in R (P, W, F and G) v Essex County Council [2004] EWHC 2027 (Admin) and submitted, again correctly, that it was not for the court to review the merits of the local authority's decision.

11. Mr Holbrook submitted to Collins J that, although Silber J's order of 13 January 2006 had ordered that the question of permission be adjourned to 6 February 2006, "a further adjournment would merely serve to increase the drain on public funds". He further submitted that the continuation of the proceedings was hampering the local authority's efforts to promote B's welfare. Collins J rejected Mr Holbrook's submission that the claim should be dismissed then and there but commented that the claim would probably need to be amended in any event.

12. On 2 February 2006 the local authority's solicitors wrote to B's solicitors pointing out that the core assessment had now been completed and asserting that in these circumstances "your client should either have withdrawn her application for permission or supplied us with amended grounds." As they said, "This has not been done." The reply from B's solicitors dated 6 February 2006 simply ignored this, though referring to R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin), [2005] 2 FLR 860. The local authority's solicitors responded with two letters on 8 February 2006.

13. In their first letter they observed that B's solicitors had failed to respond to the issues referred to in their previous correspondence regarding the ongoing prosecution of the proceedings. In their second letter they said:

"We note that you have still not supplied us with any reasoned grounds for bringing this claim specifying any discrete issues of judicial review. Is it your intention to serve amended grounds in this matter?"

Having inquired why R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin), [2005] 2 FLR 860, had been included in the bundle "bearing in mind there is no reference to this authority in your grounds", they continued:

"Once more, we should be most grateful if you would confirm whether or not you intend to supply us with amended grounds to show how the case is relevant in this matter."

14. It was in this state of affairs that the matter came before me on 9 February 2006. There were no draft amended grounds, notwithstanding the manifest deficiencies in the original grounds and notwithstanding the even more obvious fact that, with the completion of the core assessment, matters had now on any view moved on. Mr Holbrook repeated the submissions he had put before Collins J on 18 January 2006. His submissions were now fortified by the further developments to which I have already referred: the completion of the core assessment and B's continued failure, despite the local authority's repeated complaints, to take any steps to remedy the deficiencies in her grounds. He submitted that having been put on notice of the need to produce amended grounds, and having failed to do so, B should be afforded no further indulgence. He invited me to refuse permission, discharge Silber J's order and dismiss the proceedings.

15. There was, as it seemed to me, very considerable force in Mr Holbrook's complaints. Many, indeed most, of his submissions as set out in the skeleton argument prepared for the hearing before Collins J seemed to me to be probably very well founded. B's failure to produce amended grounds was, on the face of it, utterly lamentable. And I had to confess to some scepticism as to whether, given the content and detail of the core assessment, there was in truth any real prospect of B being able to produce amended grounds that would justify the grant of permission. However, albeit with profound misgivings, I agreed to give B a final chance to 'get her tackle in order'. I adjourned the application for seven days, extending Silber J's order in the meantime.

16. When the case came back before me on 16 February 2006 I was presented with proposed amended grounds. I did not have to consider them, however, in any great detail. I was told that in the light of a letter which the local authority's solicitors had written to B's solicitors the day before, and certain further discussions which had taken place outside court, B had decided that there was no need for her to continue the proceedings. Mr Ian Wise on her behalf accordingly invited me to give B leave to withdraw the proceedings, which I did.

17. This left a dispute about the costs.

18. It is convenient at this point to summarise the local authority's case as put forward by Mr Holbrook in a further skeleton argument that he had prepared in anticipation of a contested hearing on 16 February 2006.

19. Responding to the proposed amended grounds, which challenged the core assessment on the ground that it failed to meet the requirements of the Framework and failed to meet the standards mandated by R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin), [2005] 2 FLR 860, Mr Holbrook submitted that the core assessment should not be subjected to a line by line comparison with the Framework. Core assessments, he said, are intended to assist local authorities to discharge their duties to children. The purpose of the process, he said, is not to enable claimants' lawyers to carry out such a comparison in order to find some trivial difference with a view to fashioning that trivial difference into a ground for judicial review. Mr Wise vigorously repudiated this characterisation of B's complaint, submitting, as it was put in the draft amended grounds, that the core assessment was discursive and superficial and failed to provide a thorough understanding of B's life.

20. More fundamentally, Mr Holbrook submitted that the entire case in truth revolved around a clash of views as to how B should be looked after and supported. Succinctly, but essentially accurately, he described the difference as this: the local authority believes that B needs a supported environment to help her mature into an adult whereas B wishes to be given more freedom. The focus of his submission was the assertion that this is simply not the type of difference of opinion that is amenable to judicial review. Referring to a number of authorities, including R (P, W, F and G) v Essex County Council [2004] EWHC 2027 (Admin), he asserted that Parliament had entrusted the local authority, not the court, with the statutory duty of deciding what should be done for B. In these circumstances, he said, the court's function was strictly limited.

21. Developing this line of argument, Mr Holbrook submitted that a failure to adhere to these important principles led to the very kind of problems that had emerged in this case. He identified the following generic and specific problems:

i) The Administrative Court becomes an arena in which a judge is asked to determine the best interests of the child. This, he says, is not the court's function.

ii) Clearly formulated and succinct grounds for a public law challenge give way to a narrative. He tartly, but not without some justification, drew attention to the fact that the amended grounds spanned 17 pages and 47 paragraphs and complained that even if it was possible to discern particular grounds of challenge they were buried in a mass of narrative.

iii) Witness statements proliferate. In this case, as he pointed out, four witness statements in support of B's case had been filed in little over a month.

iv) Documentary evidence proliferates. In this case, as he pointed out, B's amended Form N461 sought an order for disclosure of B's social services files from 1999 – and this at a time when permission had not yet been granted.

v) Expert evidence is adduced. In this case, as he pointed out, much of the evidence filed on B's behalf was opinion evidence from a psychotherapist full of expressions such as "I feel", "I would argue", "I think" and "I believe". If admissible – and Mr Holbrook pointed out that expert evidence is not admissible under the Civil Procedure Rules in the absence of a court order – then the filing of such evidence merely invites the filing of similar expert evidence by the defendant.

vi) Costs accordingly proliferate. In this case, as he pointed out, a claim that is still pre–permission has generated no fewer than four hearings before High Court judges.

vii) The local authority's ability to discharge its statutory duties is hampered by having to spend considerable time and money dealing with court proceedings – money which it can ill afford and which would otherwise have been spent on the delivery of much needed social services.

viii) Finally, claimants are rarely assisted by being given hope that the Administrative Court will come to their aid, because unless basic principles are observed the Administrative Court is being asked to do something that it is not empowered to do.

22. According to Mr Holbrook, the local authority's experience is that, too often, claimants' lawyers fail to observe these principles. More specifically, he submitted that there had been significant failures in the present case.

23. Initially, the local authority was minded to apply for an order that B's solicitors show cause as to why they should not pay the costs which, so Mr Holbrook asserted, had been thrown away by the adjournment on 9 February 2006. That adjournment was necessitated, he said, entirely by B's failure, despite repeated promptings from the local authority, to have amended grounds available for my consideration at that hearing. On reflection, however, the local authority decided not to pursue this application. I do not know, but I suspect this was more because of a realisation that the costs of the exercise might be disproportionate to the amount of the allegedly wasted costs than because of any very ready acceptance that there were no grounds for complaint.

24. However, the local authority did press for an order that B pay the costs of the proceedings. This was on the basis, so Mr Holbrook asserted, that the proceedings should never have been brought and that the draft amended grounds demonstrated the absence of any grounds capable of being considered in a judicial review. Since B is publicly funded, Mr Holbrook did not, of course, seek an unrestricted order. He contented himself with seeking an order for costs not to be enforced without the leave of the court.

25. There is, I am afraid, substance – all too much substance – in many of Mr Holbrook's complaints; both his complaints about the way in which too many cases of this type are pursued and his complaints about the way in which this particular case has been pursued.

26. This is yet another case exemplifying problems about which I have had to complain on too many occasions already. As I said in R (P, W, F and G) v Essex County Council [2004] EWHC 2027 (Admin) at paragraphs [30]-[31]:

"[30] The present litigation exemplifies a certain type of judicial review case which experience suggests can too often end up following a less than desirable course: I have in mind community care, housing and other cases involving either children or vulnerable adults, especially those where, as here, the first task of the local or other public authority is the preparation of an assessment.

[31] This is not the first time that I have felt impelled to express my unease about this particular type of litigation: see R (A, B, X and Y) v East Sussex CC (No 2) [2003] EWHC 167 (Admin), (2003) 6 CCLR 194, at paras [156]-[166], and CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam), [2004] 1 FCR 577, at paras [217]-[219]. There is, I think, a problem here that needs to be addressed. Too often in my experience inadequate thought is given to what precisely the court is being asked or can properly be asked to do."

27. I then went on to set out what I referred to as a few basic principles, starting with some observations on the proper function of the court in a case such as this:

"[32] What the claimants here seek to challenge are decisions taken by the County Council in pursuance of the statutory powers and duties conferred on it by Part III of the Act. So I am here concerned with an area of decision-making where Parliament has chosen to confer the relevant power on the County Council: not on the court or anyone else. It follows that we are here within the realm of public law, not private law. It likewise follows that the primary decision maker is the County Council and not the court. The court's function in this type of dispute is essentially one of review – review of the County Council's decision, whatever it may be – rather than of primary decision making. It is not the function of the court itself to come to a decision on the merits. The court is not concerned to come to its own assessment of what is in these children's best interests. The court is concerned only to review the County Council's decisions, and that is not a review of the merits of the County Council's decisions but a review by reference to public law criteria: see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, and CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam), [2004] 1 FCR 577, at paras [20]-[32]. Just as I pointed out in R (A, B, X and Y) v East Sussex CC (No 2) [2003] EWHC 167 (Admin), (2003) 6 CCLR 194, at para [161], that it was the function of the local authority and not the court to make and draw up the assessments that were there in issue, so too in the present case it is for the County Council and not the court to make the initial and core assessments of these children.

[33] Now this has two important corollaries. Although I am, in a sense, concerned with the future welfare of very vulnerable children, I am not exercising a 'best interests' or 'welfare' jurisdiction, nor is it any part of my functions to monitor, regulate or police the performance by the County Council of its statutory functions on a continuing basis. A judge of the Family Division exercising the wardship jurisdiction has a continuing responsibility for the day to day life and welfare of the ward, exemplified by the principle that no important or major step in the life of a ward of court can be taken without the prior consent of the court: see Kelly v British Broadcasting Corpn [2001] Fam 59 at p 75. The function of the Administrative Court is quite different: it is, as it is put in CPR Part 54.1(2)(a), to review the lawfulness of a decision, action or failure to act in relation to the exercise of a public function. In other words, the Administrative Court exists to adjudicate upon specific challenges to discrete decisions. It does not exist to monitor and regulate the performance of public authorities: see in the context of community care R v Mayor and Burgesses of the London Borough of Hackney ex p S (unreported, 13 October 2000) at paras [8] and [11] and R v Mayor and Burgesses of the London Borough of Hackney ex p S (No 2) [2001] EWHC Admin 228 at para [4]."

28. I turned then to consider a number of procedural points which are particularly germane for present purposes:

"[34] It is elementary that it is for the claimant to set out what his case is and then to adduce the necessary evidence in support. That applies as much to proceedings for judicial review as to any other type of adversarial litigation. Consistently with this CPR Part 8.2 and Part 54.6 identify what the claim form is required to contain (see also paragraph 5.6 of the Practice Direction to CPR Part 54) and CPR Part 22.1 requires the claim to be verified by a statement of truth. The relevant form – Form N461 – requires a claimant seeking judicial review to set out in Section 3 "details of the decision to be judicially reviewed", in Section 5 a "detailed statement of grounds", in Section 6 "details of remedy (including any interim remedy) being sought" and in Section 8 a "statement of facts relied on". There is good reason why all this information is required and why, although no doubt prolixity is to be discouraged, it is important that the claimant does actually provide, properly particularised, the "detail" called for by Form N461.

[35] It is equally elementary that, although the court will normally permit such amendments as may be required to ensure that the real dispute between the parties can be adjudicated upon, an application for permission to amend should normally be accompanied by a draft of the proposed amendment: see for example paragraph 1.2(2) of the Practice Direction to CPR Part 17. Under its inherent jurisdiction the Administrative Court can allow the claimant to amend his Form N461: see Civil Procedure, 2004, Vol 1, para 54.15.1. Under CPR Part 54.15 the Administrative Court can also permit a claimant to rely on grounds other than those for which he has been given permission to proceed. But paragraph 11.1 of the Practice Direction to CPR Part 54 requires notice of the claimant's intention to apply to rely on additional grounds to be given no later than 7 clear days before the hearing. There is good reason for this: both the court and more particularly the defendant and any interested parties need to know in advance the nature of the case being made. And where a claimant seeks to make a case sufficiently different from that set out in his Form N461 as to require an amendment to the Form N461 then it seems to me that it is incumbent on him (a) to seek permission to amend his N461, (b) to give notice of his wish to amend at the earliest possible moment and in any event no later than 7 clear days before the hearing and (c) to formulate the new or additional case he wishes to make in a properly drafted document setting out, in the manner and with the detail required by CPR Part 54.6 and by Form N461, the precise amendments for which he is seeking permission."

29. I added (in paragraph [36]) a further point in relation to the evidence in such cases:

"The final point relates to the evidence, which in this type of case can all too easily proliferate. Thought needs to be given to the nature of the proceedings and, if the proceedings involve an application for judicial review rather than a full best-interests investigation, thought needs to be given to what precise point the evidence being adduced really goes to. As I commented in CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam), [2004] 1 FCR 577, at para [218], too often in cases of this type I am left with the uncomfortable feeling that evidence is being adduced, and the case is being prepared, as if it were a best interests case when in truth it is not."

30. I might add that in CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam), [2004] 1 FCR 577, at paragraph [217], I expressed my:

"misgivings about the way in which expert evidence is now being almost routinely utilised in certain types of public law cases, particularly community care cases and cases involving either children or mentally handicapped adults."

31. I referred to three cases that had come before me in the course of little more than a fortnight during December 2003 whilst I was sitting in the Administrative Court and commented:

"All three cases share certain features in common: (i) in each case the purpose in adducing the evidence was really to try and persuade the court that the primary decision-maker was wrong on the merits, whereas in each case the court's function was in truth confined to a Daly type review [see R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532]; (ii) in each case the effect of introducing the evidence was to shift the focus of the challenge from the initial decision which in theory was the subject-matter of the litigation to the subsequent actual or imputed decision not to depart from the initial decision; and (iii) in each case the expert evidence in fact had no effect on the eventual outcome of the case."

32. The underlying issues which were being ventilated in the four cases – those of P, W, F and G – which I had to consider in R (P, W, F and G) v Essex County Council [2004] EWHC 2027 (Admin) were of precisely the same kind as those which B seeks to ventilate in the present proceedings. There as here the claims were brought under Part III of the Children Act 1989. There as here it was being said that a local authority was in breach of the duties imposed on it by the Framework. There as here attempts were being made to compel a local authority to provide accommodation. And there as here the local authority found itself in a position of embarrassment – I use the word in the sense familiar from RSC Order 18 rule 19(1)(c) – strikingly similar to the embarrassing position in which the local authority currently finds itself in the present case.

33. I can take the case of F as an example. As I described the situation at paragraph [45]:

"This is an application for permission to apply for judicial review on the basis of a Form N461 which remains as it was when the proceedings were issued on 16 April 2004. F's real complaint now is that the assessment subsequently produced on 11 June 2004 proposes the provision of accommodation under section 17 and not under section 20 and that he is not being offered the accommodation and support under section 20 to which he says he is entitled. Mr Sharland complains, with justification, that this all goes to matters arising since the proceedings were issued, though no attempt has been made to amend the Form N461 … "

34. I explained what the implications were in terms of the need to amend the Form N461:

"[37] … A child seeking to compel a local authority to perform what he asserts are its duties under section 20 of the Act may complain that the local authority has failed to make an initial assessment of his needs. As here in the cases of W, P and G, judicial review proceedings may be launched to compel the local authority to carry out an assessment. But once that process has been completed the child may complain that the local authority has assessed him incorrectly – perhaps as a child requiring services not under section 20 but only under section 17 – and he may wish to bring judicial review proceedings to quash the assessment with a view to making the local authority assess him correctly. And even once that process has been completed satisfactorily he may still wish to complain, for example, that the local authority, although it has correctly assessed him as requiring accommodation under section 20, has nonetheless failed to provide him with accommodation that is suitable.

[38] Those three complaints relate to three different actions (or failures to act) on the part of the local authority and moreover occurring, it may well be, on successive and different occasions. Each in principle properly forms the subject of a distinct and separate application for judicial review. Now it may be that a pragmatic application of the overriding objective in CPR Part 1.1 will often indicate that these successive claims can appropriately be pursued within the ambit of the original proceedings for judicial review, rather than condemning the claimant to bring three successive applications, but that is no reason why the normal principles should not apply in relation to what will in that event be the necessary amendments to the original proceedings. If the original Form N461 complains about a failure to assess then, if the complaint is subsequently to be extended to embrace a later failure to assess correctly, the Form N461 must be properly amended to reflect the new complaint. And, I should emphasise, a proper amendment in this type of situation will usually involve the appropriate amendments to each of Sections 3, 5, 6 and 8 in the Form N461. Likewise, if the further complaint subsequently arises that the assessment, although itself correct, is not being correctly implemented, the Form N461 must again be amended to reflect the new situation."

35. I continued at paragraph [39]:

"If proper control is not kept on the pleadings – if the Form N461 is not promptly and properly amended to keep pace with what may be the rapidly changing dynamics of a case such as these – and if proper control is not also kept on the evidence there is likely to be difficulty. The parties may be left in confusion or be at loggerheads as to what precisely the court is being asked to do. And this kind of uncertainty tends to encourage both drift and delay – what I referred to in CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam), [2004] 1 FCR 577, at para [218] as "litigation creep". And this, as I pointed out, can lead all too easily to a situation where the proceedings are, in effect if not in intention, being used inappropriately as a means of monitoring and regulating the performance by a public authority of its public duties and responsibilities. That, as I have said, is not a proper use of proceedings for judicial review. Nor indeed, as Newman J pointed out in the Hackney litigation, is expenditure incurred by a claimant's solicitor in such circumstances legal costs recoverable as such. As he said in the first Hackney case at paras [8], [11]:

"[8] … once [the local authority] had been ordered to provide services and accommodation, it being the authority entrusted with the obligations and the resources, should have been able to decide upon a care plan and provide accommodation without the intervention of lawyers …

[11] The occasions when it will be appropriate for costly participation by a user's solicitor in the process of preparing a plan and the provision of accommodation by a local authority will be rare. The starting point must be that it is for the authority to act and produce its proposals … "

And as he said in the second Hackney case at para [4]:

" … costs incurred in monitoring the authority's performance of the statutory duty were not legal costs."

Now that may all have been said in the context of a community care case, but the principles must be of general application."

36. I concluded at paragraph [40] with the comment that:

"Restraint is needed by the litigants and appropriately robust judicial case management, if these difficulties are to be avoided."

37. Applying those principles I drew attention in paragraph [42] to various deficiencies in the way in which W's case had been pleaded and recorded in paragraph [43] the County Council's submission that I should dismiss the proceedings. Having commented that I was in no position to adjudicate upon a dispute which was inadequately pleaded and much of which had been raised only a few days before the hearing, I continued at paragraph [44]:

"In the circumstances, and recognising that I am adopting a more lenient approach than it might be thought the case warrants, I do not propose to dismiss the proceedings. I will give W one more opportunity to amend her N461 in such way as she may be advised. If she wishes to avail herself of this indulgence it is imperative that all the relevant parts of her Form N461 – sections 3, 5, 6 and 8 – are amended, so that both the County Council and the court can see exactly what are the decisions of the County Council that are being challenged, what are the grounds of that challenge, what evidence is being relied on and precisely what relief is being sought. The proposed amendments must be properly formulated in a draft which is to be submitted to the County Council as soon as possible."

38. At paragraph [46] I adopted the same course in relation to F's claim:

"Again, as in W's case, the position is most unsatisfactory, for the County Council is now being pursued on a claim, different from that in the Form N461, which in large measure is neither pleaded nor particularised. However, as in W's case, and recognising again that I am adopting a more lenient approach than it might be thought the case warrants, I do not propose to dismiss the proceedings. I will give F an opportunity to amend his N461 in such way as he may be advised. I repeat in relation to any amendment F may wish to make what I have already said in relation to W."

At paragraph [48] I adopted the same approach in relation to G's case.

39. I stand by everything I said in R (P, W, F and G) v Essex County Council [2004] EWHC 2027 (Admin). The failings in the present case more than justify my drawing attention to the passages I have set out, no doubt some might think at wearisome length. They go far to justify all too many of Mr Holbrook's complaints about the way in which the present case has been conducted and to demonstrate the extent of the claimant's failings in that respect.

40. Mr Wise, whilst recognising that there is little effective that can be said in mitigation of the deficiencies in B's original grounds and of the failure to have draft amended grounds available in time for the hearing on 9 February 2006, vigorously disputes, as I have said, Mr Holbrook's more general attack on B's case. He submits that this was a proper claim, preceded by a proper letter before action, and, moreover, a claim in relation to which B has, at the end of the day, achieved a significant measure of substantive success. This is not, he says, a case where the claimant has lost. B has withdrawn her claim because the proposals put forward by the local authority in its letter of 15 February 2006 gave her something she was prepared to accept. Therefore, he says, the appropriate order is that there should be no order as to costs.

41. Not without considerable misgivings I am persuaded that there should be no order as to costs. Doing the best I can to evaluate the overall outcome of proceedings which in the event have never been the subject of a judicial determination, my impression is that B has indeed achieved something of advantage, albeit, I suspect, significantly less than she had originally been hoping for. As against that, there can be no real doubt that the proceedings have been conducted in a manner which has led to costs being unnecessarily incurred. I repeat what I have already said in relation to the defective state of the grounds originally put before the court and in relation to B's lamentable failure to have draft amended grounds ready for the hearing on 9 February 2006. Any argument that B's even partial success in the proceedings should be reflected in an award of costs in her favour is, as it seems to me, counterbalanced by the local authority's argument that, even if no more, it should at least have an order for costs in relation to the period since 9 February 2006. Doing the best I can, I have concluded that the fair, just and appropriate order is that there should be no order as to costs.

42. I wish to conclude this judgment with a very plain and a very stark warning to practitioners. There can no longer be, if indeed there ever was, any excuse for the approach to this type of judicial review claim which the present case and too many other cases exemplify. The relevant principles are clear. From now on practitioners should expect to find the court adopting a more robust response to this kind of bad practice. It needs to be emphasised how close I came in this case to simply dismissing B's application on 9 February 2006 and how close I came on 16 February 2006 to making an adverse costs order. For the future practitioners should not expect such lenience. If I find myself again in the situation in which I found myself on 9 February 2006, the defaulting party can expect to find her case being summarily dismissed. And the lawyers may find themselves exposed to an application for a wasted costs order.