Neutral Citation No: [2018] NIQB 4
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Delivered: 25/01/18
MCCLOSKEY J
Preface
i. In this judgment:
"A" = The Applicant.
"EA" = The Education Authority for Northern Ireland
"SENDT" = The Special Educational Needs and Disability Tribunal.
"LSA" = The Legal Services Agency for Northern Ireland
ii. Paragraphs [1] – [12] are the edited ex tempore judgment delivered by the court on 21 November 2017. The remaining paragraphs are concerned with an issue of practice relating to legal aid.
iii. A is granted anonymity. Thus there must be no publication of A's identity or of anything tending or having the potential to reveal such identity.
Framework of these proceedings
A, a child aged seven years who suffers from profound physical disabilities and who is at present involved in an undetermined appeal to SENDT arising out of a dispute concerning her educational placement, challenges, per the Order 53 pleading, the decisions of SENDT dated 06 and 09 October 2017:
Quashing and mandatory orders against SENDT are pursued. The sole relief sought against EANI is an order of mandamus compelling it to comply with the discovery orders.
The assorted grounds of challenge assert unparticularised breaches of Articles 6 and 8 ECHR (contrary to section 6 HRA 1998), the frustration of a legitimate expectation of receiving full discovery, breaches of Regulation 34 of the SENDT Regulations 2005 and Order 15 of the County Court Rules, error of law in an assessment of legal privilege and, finally, irrationality.
Proceedings were commenced on 20 October 2017, expedition was granted and an accelerated initial hearing date was allocated. At this remove, the only issue requiring judicial determination is that of costs.
It is necessary to examine what the two Rs actually did or failed to do. SENDT, on 08 August 2017, directed EA to make general discovery. Next, on 04 October 2017, a direction was made for specific discovery of –
EA's solicitor responded, by letter dated 06 October 2017, making the case, in reasoned and elaborate terms, that while there existed communications (electronic and telephonic) of the kind directed, these were protected by legal professional/litigation privilege. This letter also contained a request that if SENDT were minded to issue a further direction requiring the production of privileged materials, EA should first have the opportunity of making representations in accordance with Regulation 31(2) of the Special Educational Needs and Disability Tribunal Regulations (NI) 2005 (the " 2005 Regulations ").
On the same date, the SENDT President communicated a decision that no further discovery direction would be made. This was reaffirmed on 09 October 2017. The next development was the initiation of these proceedings, on 23 October 2017. To summarise:
(a) SENDT was content with EA's response to the second discovery direction and determined to issue no further direction.
(b) The only material identifiable act on the part of EA was the assertion of privilege through its solicitor in response to the second direction.
(c) EA cannot be considered to have been in breach of either of the Tribunal discovery orders having regard to the clear, measured and considered terms in which privilege was asserted and the Tribunal's acknowledgement of the correctness thereof.
Costs vis –a – vis SENDT
A initiated these proceedings without first having had recourse to the Tribunal for such further procedural remedy as was available in that forum and, hence, failed to exhaust remedies. Regulation 31(1) provides:
Regulation 34 provides:
" 34. —(1) The President—
I consider that within the collection of procedural provisions reproduced above, there was ample scope for A to have recourse to the Tribunal seeking resolution of the issues forming the centrepiece of this judicial review challenge. I am mindful that SENDT, in common with all others, attempts to operate with appropriate degrees of informality and flexibility. Notwithstanding, I am of the view that the provisions rehearsed above clearly contemplate the elementary procedural formalities of an application formulated in writing, setting forth the procedural relief sought and the grounds upon which this is pursued, coupled with notice of such application to the other party. This applies with special force where the judicialised tribunal is being asked, in effect, to set aside one of its orders. I consider that the brief electronic communication from A's solicitors to the Tribunal in the present case was quite insufficient to comply with the basic requirements just rehearsed.
This issue prompts the following brief comment. The 2005 Regulations do not prescribe any form to be utilised for the purpose of making interlocutory applications. Nor is there any prescribed form for the Tribunal's interlocutory directions. An assessment may have been made that in this particular tribunal forum this is considered neither necessary nor appropriate. If so, this court would not presume to quibble. However, as the present case demonstrates, some elementary degree of formality is desirable. This can be achieved, in practice, by the mechanism of letters which observe the basic requirements rehearsed in [7] above. The President of SENDT might wish to reflect on the desirability of a simple Practice Note/Direction regulating this topic.
While I have noted the electronic exchanges between A's solicitors and SENDT there was no attempt on behalf of A to invoke any specific procedural provision and, in particular, no clearly formulated application, formal or otherwise, to the Tribunal and no considered representations relating to the powers exercisable by the Tribunal under the 2005 Regulations 2005 and Order 15 of the County Court Rules. Furthermore the Tribunal was not involved in the PAP correspondence and had no role in the resolution which was ultimately achieved exclusively between A and EA.
In addition, by well - established principle, as a strong general rule costs should not be awarded against an inferior court or tribunal taking no active part in the judicial review proceedings: see especially R(Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207 at [47]. In this case, SENDT's contribution was limited to making the case that it should not be condemned in costs. I also take into account my assessment that success for A's prospects of substantive success against SENDT in these proceedings were minimal. For this combination of reasons there can be no question of awarding costs against SENDT.
Costs vis – a – vis The EA
On behalf of EA it is submitted that its very recent change of heart has been motivated by pragmatism, the doctor/patient relationship which applies to the child and the paediatrician in question and the desirability of avoiding further delay in the long running Tribunal proceedings. I take into account all of these considerations, together with the alternative remedy factor already noted, the absence of any subject access request under DPA 1998 and A's failure to comply with the PAP, in breach of the JR Practice Note.
The resolution which ultimately materialised is strongly indicative of a likelihood that compliance with the PAP would have yielded a consensual outcome and obviated the need for these proceedings. I further take into account that it is far from clear that A would have secured any relief from this court against EA. Finally, I consider this to be a paradigm case for giving full effect to the principle that public authorities should not be dissuaded by the prospect of costs orders at this stage of judicial review proceedings from taking sensible, reasonable and pragmatic steps which bring about consensual resolution. For these reasons an award of costs against EA would be quite inappropriate.
The Public Funding Factor Generally
The factor of public funding is worthy of brief comment. The materials before the court indicate that the Applicant is a legally assisted litigant. Article 11(1) (d) and (e) of the Legal Aid, Advice and Assistance (NI) Order 1981 (the "1981 Order") provides:
Article 16 (1) – (3) are also noteworthy:
I have considered certain other pieces of the statutory jigsaw. Article 17(7) of the Access to Justice (NI) Order 2003, under the rubric of "Terms of Provision of Funded Services", provides:
In passing, the relevant measure of subordinate legislation is the Civil Legal Services (Statutory Charge) Regulations (NI) 2015, which does not appear to contain anything germane to the present enquiry.
Article 5(4)(b) of the 1981 Order is the enabling power for regulations making provision "… as to the procedure to be followed in applying for approval, the criteria for determining whether approval should be given and the conditions which should or may be imposed ." [Emphasis added.] The relevant measure of subordinate legislation is the Legal Advice and Assistance Regulations (NI) 1981. Regulation 17(4) provides:
Colloquial expressions such as " duty to the fund " are familiar to both courts and practitioners. But what exactly do they mean, as a matter of law? Some judicial exploration and clarification of this issue is probably overdue.
Clearly, every publicly funded litigant must act in accordance with the provisions of the 1981 Order and all subordinate measures made thereunder. There is also a duty to act in accordance with all conditions attaching to the grant of legal aid. However, it is not clear to the court that either the 1981 Order or any of the subordinate measures devised thereunder obliges a publicly funded litigant to pursue an application for costs against the other party or parties in circumstances where either the relevant legal challenge has been overtaken and rendered moot by supervening events (as here) or where consensual inter-partes resolution becomes achievable for whatever reason.
The next step in the analysis raises a question of pure fact. In the present case A's legal representatives considered it their duty to apply for costs against both Rs in circumstances where the judicial review application was no longer being pursued, having been rendered academic. The belief that such a duty existed was made clear to the court by counsel for A. However, no evidence was produced that there was a condition in A's grant of legal aid to this effect. Nor was there any evidence that the LSA had issued an instruction to this effect. This encouraged the court to probe a little deeper.
I considered it both fair and prudent to give notice to the LSA that the court was considering this issue, inviting representations. Its Chief Executive replied in writing. The response was prompt, informative and comprehensive and the court records its gratitude to the Chief Executive for this co-operation.
The Chief Executive's response includes the following noteworthy passages:
Pausing at this juncture, the first sentence in this passage is the Chief Executive's direct response to the court's observation that it had been unable to identify any statutory provision imposing on the representatives of a legally assisted person a duty to apply for costs against another party or parties in the context of either consensual resolution or the case becoming academic. This would appear to be a correct statement of the law.
The Chief Executive then expresses the view of the LSA that, in the present case, SENDT ought to have taken the step which it ultimately took at the PAP stage. The Chief Executive continues:
The Chief Executive's letter continues:
Next, having adverted to the Boxall** "fall back" principle, namely that in the absence of good reason to make any other order the court should make no order as to costs inter-partes , the Chief Executive continues:
**(see R (Boxall) v Waltham Forest LBC (2001) 4 CCL Rep 258 ).
The letter continues:
The Chief Executive describes as the only conceivable exception to the above receipt of a " very persuasive " opinion of counsel sufficient to warrant an appeal against a court's ruling of no order as to costs inter-partes .
With reference to the latter suggestion, the Chief Executive will doubtless be alert to two realities. First, there is no right of appeal to the Court of Appeal against a costs order of the High Court only. Such an appeal lies with permission of the court below only: see section 35 (2) (f) of the Judicature (NI) Act 1978. Second, the law reports are awash with cautionary statements that given the breadth of the judicial discretion in play, interference by an appellate court with a costs order will be very exceptional.
The letter from the Chief Executive raises several interesting issues, inviting the following reflections. It suggests to the court that, in certain respects, the approach and policy of the LSA may be inappropriately rigid, or absolutist. There is little evidence of flexibility and no apparent appreciation of the hallowed British Oxygen principle which prohibits inflexible rules and policies fettering discretions in the realm of public law: British Oxygen Company Limited v Board of Trade [1971] QB 610. This assessment is reinforced by the author's portrayal of the "standard position."
Nor does the letter disclose any acknowledgement or appreciation of the overriding objective. The ingredients of the latter which have particular purchase in the context under consideration are proportionality, limited court resources and the parties' duty of assistance to and co-operation with the court.
This latter duty is emphasised in this court's recently delivered judgment in YPK and Others v Secretary of State for the Home Department [MCCL10532] / [2018] NIQB 1 at [19]:
The judgment in YPK undertakes, at [5] – [21], a comprehensive review of the principles governing the award of costs in judicial review proceedings. The LSA will take cognisance of this.
YPK and Others has a strong resonance in the context of the legal aid issues which the court has proactively raised in the present case. In YPK there were ten challenges to immigration decisions, all of which were rendered moot by supervening events. None of these cases had proceeded any worthwhile distance in the court process. All of the applicants were informed of a fresh decision whereby the respondent had undertaken to rescind the impugned decision and, upon receipt of such further evidence or representations as might be provided, make a new one. All of the applicants applied for costs against the respondent. The court decided that there was no merit in nine of these applications and dismissed them. One (only) of the ten applicants succeeded in its quest for costs. One of the unsuccessful applicants was in receipt of a letter from the LSA containing the following passages:
Letters of this kind are, I apprehend, routinely deployed by the LSA.
The above letter provides a vivid illustration of the court's gentle observations relating to the LSA's recent letter. The success rate for the LSA in the legal aid satellite sideshow which developed was a miserable 10%. In nine of the ten cases, the public authority respondent incurred substantial irrecoverable costs in achieving litigation success on the costs issue. "litigation success" in this context denotes nom order as to costs inter – partes : a notably limited form of "success". The investment of judicial and other resources was considerable and, in the circumstances, utterly disproportionate. From the judicial perspective, it entailed several inter-partes listings before the court, a direction for the provision of a specially compiled bundle of papers, the investment of many hours reading this bundle and other papers, skeleton arguments prepared by a total of four counsel, the preparation of a lengthy judgment and, ultimately, a listing for handing down. It is clear to the court that all of this was driven by an inflexible LSA mindset shaped by an inappropriate fixation with a very narrow canvass.
It seems clear from all of the above that the LSA undertakes no assessment of the subtleties and nuances which are frequently attendant upon the notion of "success" for the legally assisted litigant. Second, there is no acknowledgment of the overriding objective or the specific duty of assistance to, and cooperation with, the court which this imposes upon all litigants, irrespective of publicly funded status. Third, it is evident that the LSA does not attempt any analysis of how the open textured principles governing costs in judicial review are likely to be applied by the court. Nor, it seems, does the LSA invite the views of the legally assisted party's representatives on this discrete issue. All of these recent cases demonstrate that there is a nettle of some substance which this court would now expect the LSA to begin grasping.
Conclusion and Order
As the terms of my ruling above make clear, I consider that the costs application on behalf of A was entirely devoid of merit. The three components of the final Order of the court are:
(a) A dismiss of the application for leave to apply for judicial review.
(b) No order as to costs inter-partes .
(c) Taxation of A's costs as an assisted person.