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R (B) v London Borough of Lambeth [2006] EWHC 639 (Admin)

Appropriate order was ‘no order as to costs’ arising from judicial review proceedings that were settled. Judicial warning issued concerning similar applications.

Queen's Bench Division: Munby J (7 April 2006)

Appropriate order was 'no order as to costs' arising from judicial review proceedings that were settled. Judicial warning issued concerning similar applications.

B was born in September 1990 and had a difficult childhood, culminating for present purposes in her being made homeless in November 2005 when she was thrown out of the family home. The local authority became involved in December 2005, in exercise of its obligations under the Children Act 1989, and carried out an initial assessment of B.

On 6 January 2006, B began judicial review proceedings against the local authority, contending that the local authority had failed to provide her with appropriate accommodation and support in accordance with its obligations under sections 17 and 20 of the Children Act 1989, and that it had failed to carry out an assessment and care plan in accordance with the 'Framework for the Assessment of Children in Need and their Families'.

Following various hearings during January 2006, and after the local authority had completed an updated core assessment (one having previously been completed in April 2004), the case settled; however, there remained a dispute as to costs, which raised important matters of principle and practice.

In his skeleton argument prepared for the hearing before the judge on 18 January, counsel for the local authority had made various criticisms of B's Form N461, and specifically drew attention to the need for properly particularised grounds. B's solicitors undertook to present draft amended grounds for a hearing on 9 February and, when no grounds were presented on that date, the hearing was adjourned for seven days (although that final determination never took place). While B's counsel could offer little by way of mitigation for the deficiencies in the original grounds and the failure to present draft amended grounds, he submitted that this was a proper claim, preceded by a proper letter before action, by which B had achieved a significant measure of substantive success.

Extensive reference was made to Munby J's judgment in R (P, W, F and G) v Essex County Council [2004] EWHC 2027 (Admin), which also concerned claims brought under Part III of the Children Act 1989 against a local authority that was allegedly in breach of the duties imposed on it by the 'Framework', and that was being compelled to provide accommodation.

The court found, with considerable misgivings, that there should be no order as to costs.

It could reasonably be said that B had achieved something of advantage by these proceedings, albeit probably less than she had originally hoped for. However, it was clear that the proceedings had been conducted in a manner that led to costs being unnecessarily incurred. Any argument that B's even partial success in the proceedings should be reflected in an award of costs in her favour was 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.

Munby J concluded his judgment with a plain and stark warning to practitioners: there was no excuse for the approach to this type of judicial review claim which the present case exemplified. The relevant principles were clear. From now on, practitioners should expect to find the court adopting a more robust response to this kind of bad practice. He had come very close to simply dismissing B's application on 9 February 2006 and, similarly, on 16 February 2006 to making an adverse costs order. If such a situation should arise again, the defaulting party could expect to find the case being summarily dismissed, and the lawyers may find themselves exposed to an application for a wasted costs order.

Read the full text of the judgment here