B e f o r e :
MR JUSTICE JEREMY BAKER ____________________
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Mr Ian Wise QC and Mr Michael Armitage (instructed by Hopkin Murray Beskine) for the Claimant Mr Christopher Baker and Mr Richard Granby (instructed by The Legal Department, London Borough of Islington) for the Defendant Hearing dates: 2 and 3 February 2017 ____________________
HTML VERSION OF JUDGMENT ____________________
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Mr Justice Jeremy Baker:
Following the judgment I handed down in this case on 31 st May 2017, I am now asked to determine the issue of costs.
Although these are public law proceedings, they remain subject to the CPR. As Lord Neuberger MR pointed out in M v Croydon LBC [2012] EWCA Civ 595 ,
The parties have provided written submissions on this issue. The claimant submits that as the successful party, she should be entitled to an order that the defendant pays her costs in full. Whilst the defendant submits that as the claimant failed to succeed on two out of her three grounds, it should be entitled to its costs, or at most no order for costs should be made between the parties.
CPR44.2 sets out the court's discretion as to costs:
CPR44.2(2) provides that if the court decides to make an order about costs,
CPR44.2(4) provides that,
CPR44.2(5) provides that,
It is clearly necessary, at an early stage, to determine which of the parties is the successful one. The approach to this issue has been helpfully summarised by Gloster J (as she then was) in HLB Kidsons (a firm) v Lloyd's Underwriters (Costs) [2007] EWHC 2699 , such that not only must the litigation as a whole be taken into account, but the issue should be determined in a common-sense manner. Moreover, at paragraph 11, it was pointed out that,
In the present case, I consider that the claimant should be considered to be the successful party, in that not only has she succeeded in obtaining a declaration that the defendant's practice of making direct offers of accommodation under its housing allocation scheme, (otherwise than pursuant to the discretionary power of the Director of Housing Needs and Strategy), is unlawful and in breach of its duty under section 166A(1) of the Housing Act 1996 to allocate social housing in accordance with its published allocation scheme, but in particular she has succeeded in obtaining an order quashing the defendant's review decision contained in its letter dated 24 th November 2016, such that the defendant will be obliged to reconsider the claimant's application for social housing to determine whether to make her a direct offer of accommodation under the housing allocation scheme, and if not to provide sufficient reasons for its decision.
On the other hand, the basis upon which she succeeded in obtaining this relief was only on one of three grounds which she pursued to trial, and she was unsuccessful on the other two grounds, namely those relating to her entitlement to welfare points, and the lawfulness of the local lettings policy. Moreover, the ground upon which she succeeded, namely the lawfulness of the defendant's practice of making direct offers under the housing allocation scheme was only raised shortly before trial, namely on 31 st January 2017.
However, although I consider it likely, having regard to the history of this and other litigation pursued by those instructed by the claimant against the defendant, that the claimant would have pursued these other two grounds to trial in any event, it is apparent that the reason why the ground relating to direct offers was only raised shortly before the trial, was that this practice had only been revealed by the defendant on 26 th January 2017. Moreover, not only was the defendant's practice unascertainable by the claimant until the disclosure made by the defendant in the witness statement of Karen Lucas of the same date, but it was only during the course of the trial itself, on 2/3 rd February 2017, that it was revealed, on behalf of the defendant, that this practice extended to those who had only been awarded 100 points under the allocation scheme, rather than the minimum threshold of 140 points required by those who were thereby entitled to bid for housing under the choice based lettings scheme.
Just as the manner in which the defendant's practice of making direct offers under the scheme, (otherwise than pursuant to the discretionary power of the Director of Housing Needs and Strategy), ought to have been ascertainable from the scheme itself, the defendant's practice ought to have been disclosed at an earlier stage of the litigation. If it had been, then I have no doubt it would have been a ground relied upon by the claimant, albeit, as I have said, that the other two grounds would have been likely to have been pursued in any event.
In these circumstances, having determined that the claimant is the successful party in this case, the appropriate starting point for the issue of costs is the general rule provided for by CPR44.2(a). However, given the considerable amount of resources devoted to the other two issues upon which the claimant did not succeed, I consider that some balance is required to reflect these matters.
In this regard, the type of orders which the court may make, are set out in CPR44.2(6), namely,
Moreover, CPR44.2(7) makes it clear that before the court considers making an order under CPR44.2(6)(f), it should consider whether, instead, it is practicable to make an order under CPR44.2(6)(a) or (c).
Taking these matters into account, I consider that it is appropriate for the court to make a different order under CPR44.2(2)(b), and although it would be possible to make an order under CPR.2(6)(f), it is both practicable and preferable to make an order under CPR44.2(6)(a). As I have already observed, considerable resources were devoted to the other two issues upon which the claimant did not succeed, such that although I consider that the claimant is entitled to the majority of her costs, a significant reduction ought to be made from them. Therefore, the order which I propose to make is that the defendant shall pay 60% of the claimant's costs of her claim, to be the subject of detailed assessment if not agreed.
Finally, CPR44.2(8) provides that,
There is no good reason why the defendant should not pay a reasonable sum on account of costs, which I determine in this case is £30,000.00. Therefore, there will be an order that the defendant shall within 21 days hereof pay this sum (inclusive of Value Added Tax) to the claimant as a payment on account of her costs.