JUDGMENT
Hunt (Appellant) v North Somerset Council
(Respondent)
before
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
22 July 2015
Heard on 29 April 2015
Appellant Respondent
David Wolfe QC Nigel Giffin QC
Aileen McColgan Jane Oldham
(Instructed by Public
Interest Lawyers
)
(Instructed by North
Somerset Legal Services
)
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LORD TOULSON: (with whom Lady Hale, Lord Wilson, Lord Reed and
Lord Hughes agree)
1. The appellant brought a claim for judicial review of a decision of the
respondent, on 21 February 2012, to approve a Revenue Budget for 2012/13 in
relation to the provision of youth services. In his claim form he applied for
declarations that the respondent had failed to comply with section 149 of the
Equality Act 2010 and section 507B of the Education Act 1996 and for an order
quashing the decision to approve the budget.
2. The claim was dismissed at first instance (Wyn Williams J) and the appellant
was ordered to pay the respondent’s costs, subject to a proviso against enforcement
of the order without further permission of the court. He obtained limited permission
to appeal on two grounds. The Court of Appeal (Moore-Bick, Rimer and Underhill
LJJ) decided the two substantive issues in his favour but did not grant him any relief,
dismissed his appeal and ordered him to pay half of the respondent’s costs of the
appeal. This appeal is about the form of the Court of Appeal’s disposal of the matter.
The appellant submits that since the court held that the respondent had failed in its
statutory obligations, it should have made a declaration to that effect and should
have made an order for costs in his favour.
3. The underlying facts and issues are set out in the very thorough judgment of
Wyn Williams J, [2012] EWHC 1928 (Admin), and recapitulated, so far as was
necessary, in the judgment of the Court of Appeal delivered by Rimer LJ, [2013]
EWCA Civ 1320. For present purposes a briefer outline will be sufficient.
4. The appellant was born on 17 April 1991. He suffers from ADHD and has
other difficulties. He was therefore a “qualifying young person” within the meaning
of section 507B of the 1996 Act, which required the respondent, so far as reasonably
practicable, to secure access for him to sufficient educational and recreational
leisure-time activities for the improvement of his well-being. Section 507B(9)(b)
required the respondent in exercising its functions under that section to “secure that
the views of qualifying young persons in the authority’s area are taken into account”.
5. The appellant’s disability was also a protected characteristic which brought
into play, in relation to him, the public sector equality duty (“PSED”) contained in
section 149 of the 2010 Act. The section required the respondent to “have due
regard” to the statutory equality needs in the exercise of its functions.
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6. By its decision on 21 February 2012 the respondent approved a reduction in
its youth services budget for 2012/13 of £364,793. The appellant was concerned
about the impact which this was likely to have on the provision of services for young
persons with disabilities and, in particular, on a weekly youth club for vulnerable
young people which he used to attend.
7. At first instance wide ranging criticisms were made of the way in which the
respondent had reached its decision. They were all rejected. At the end of the hearing
and before giving judgment, the judge asked counsel for written submissions on
relief if he found that there had been illegality. The note on relief provided by Mr
David Wolfe QC and Ms Aileen McColgan on behalf of the appellant stated that he
asked for a quashing order. No mention was made of alternative relief in the form
of a declaration. Ms Jane Oldham noted the omission in her response on behalf of
the respondent, observing that “… it appears that no declaratory relief is sought and
D takes it that the claim for declaratory relief [in the claim form] is abandoned, since
otherwise C would, in response to the request of Wyn Williams J, have set out the
terms of any declaratory relief sought”. Mr Wolfe and Ms McColgan provided a
written reply which again made no reference to asking for declaratory relief.
8. In view of the judge’s rejection of the challenges to the legality of the
respondent’s approval of the budget, the question of relief did not arise for decision,
but the judge rejected an argument by the respondent that the provisions of the Local
Government Finance Act 1992 would have prevented him from quashing the
decision to approve the budget. He said that if he had been persuaded that the
respondent had acted unlawfully, it would have been open to him to grant any
remedy which was appropriate.
9. The grounds on which the appellant was given leave to appeal were that the
respondent had failed in its equality duty (PSED) under section 149, because
although equality impact assessments (“EIAs”) had been carried out relating to the
impact of the budgetary cuts, the EIAs had not been provided to the members who
took the decision (and the judge had been wrong to infer that the members had read
them merely because they had been told how they could be accessed); and that it
had failed in its consultation duty under section 507B(9)(b) because there was no
evidence of consultation with young people before making the decision to cut the
budget (as distinct from meetings with management committees of young people’s
organisations to explain to them where the axe would fall). These grounds were
developed in the appellant’s skeleton arguments in the Court of Appeal. As to relief,
it was submitted that the decision under challenge should be quashed. No alternative
submission was made about declaratory relief.
10. The judgment of the Court of Appeal was given on 6 November 2013. The
court upheld the appellant’s argument under section 149. It expressed some doubt
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about whether section 507B(9) was applicable, but this was not disputed by the
respondent. Accordingly the court proceeded on the assumption (but without
deciding) that the section was applicable, and on that assumption it upheld the
appellant’s argument. However, the court refused to make the quashing order which
was sought. Rimer LJ said that although in theory a quashing order could be made,
the court could not see how this could be done without quashing the respondent’s
decision to approve the entire revenue budget for the financial year 2012/13, which
had expired nearly three months before the appeal was heard. He concluded:
“94. … It is now too late to unwind what has been done. … Judicial
review is a discretionary remedy and, even though we have accepted
the substantive points which Mr Hunt has advanced, we are of the firm
view that he ought not to be granted the quashing order for which he
asks. To do so would be detrimental to good administration.
95. We refuse to grant any relief to Mr Hunt and therefore dismiss the
appeal.”
11. No mention was made in the judgment about whether the order should
include a declaration to reflect what was said in it about the respondent’s failure to
discharge its statutory obligations, no doubt because the subject had never been
raised on behalf of the appellant and in any event it would be open to counsel to
make suggestions as to the appropriate form of order in the light of the matters
determined in the judgement. It would have also have been open to counsel to raise
the matter of declaratory relief on receiving the judgment in draft if it was something
which they had meant to raise. Counsel for the appellant did neither. Counsel for the
respondent prepared a draft order stating that the appeal was dismissed, and counsel
for the appellant stated in written submissions that the parties were agreed on the
order except in relation to costs.
12. I would reject the appellant’s complaint that the Court of Appeal was wrong
not to make a declaration of its own initiative. The complaint is redolent of
hindsight. It is no doubt triggered by the court’s decision on costs, but they are
separate matters. The judgment of the Court of Appeal itself ruled that the
respondent acted unlawfully, and the authority of the judgment would be no greater
or less by making or not making a declaration in the form of the order to the same
effect. However, in circumstances where a public body has acted unlawfully but
where it is not appropriate to make a mandatory, prohibitory or quashing order, it
will usually be appropriate to make some form of declaratory order to reflect the
court’s finding. In some cases it may be sufficient to make no order except as to
costs; but simply to dismiss the claim when there has been a finding of illegality is
likely to convey a misleading impression and to leave the claimant with an
understandable sense of injustice. That said, there is no “must” about making a
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declaratory order, and if a party who has the benefit of experienced legal
representation does not seek a declaratory order, the court is under no obligation to
make or suggest it.
13. The appellant is on much stronger ground in relation to costs. The
submissions to the Court of Appeal on his behalf made no reference to the costs at
first instance, and it was remiss to agree to an order that the appeal should be
dismissed, when there were obvious grounds for arguing that in relation to costs the
judge’s order should be set aside and replaced by an order in the appellant’s favour.
However, in relation to the costs in the Court of Appeal, the points were properly
made that the appellant had succeeded on both the issues as to the respondent’s
statutory duty; that there were wider lessons for local authorities to learn from the
case about their duties under each of the relevant sections; that the lapse of time, as
a result of which the relevant financial year had now passed, was not the fault of the
appellant; and that to deny the appellant his costs would be likely in practice to
dissuade claimants from pursuing legitimate public law challenges. The respondent
submitted that the appellant had not in substance been successful; that he had not
obtained any result of any practical utility; and that he had known about the practical
problems which would be involved in attempting to unwind the budget from
evidence submitted by the respondent before the original hearing.
14. Delivering the reasons for the court’s judgment on costs, ([2013] EWCA Civ
1483) Rimer LJ said that by the time that the appeal came on for hearing, it was far
too late to consider granting any relief (by which he must have had in mind a
quashing order), even if – as to which the court had doubts – it might have been
appropriate for relief to be granted a year earlier when the matter was before Wyn
Williams J. He continued:
“5. In these circumstances, the court considers that it would be wrong
in principle to award any costs to Mr Hunt. The appeal proved to be
of no practical value to him; and, in the court’s view it was always one
which was destined to fail.
6. As the council was the successful party in the appeal, the court
considers that it is in principle entitled to its costs. On the other hand,
the court has regard to the fact that the council resisted the appeal not
only on the basis that this was not a case for relief, but also on the two
substantive grounds on which it lost. Its resistance on those two
grounds increased the costs of the appeal. We regard that
consideration as pointing away from an order awarding the council all
of its costs.”
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The court concluded that the respondent should be entitled to recover half of its costs
of the appeal.
15. The discretion of a court in a matter of costs is wide and it is highly unusual
for this court to entertain an appeal on an issue of costs alone. But the Court of
Appeal said that it reached its decision as a matter of principle, treating the
respondent as the “successful party”. In adopting that approach, I consider that the
court fell into error. The rejection of the respondent’s case on the two issues on
which the appellant was given leave to appeal was of greater significance than
merely that the respondent had increased the costs of the appeal by its unsuccessful
resistance. The respondent was “successful” only in the limited sense that the
findings of failure came too late to do anything about what had happened in the past,
not because the appellant had been slow to raise them but because the respondent
had resisted them successfully until the Court of Appeal gave its judgment. The
respondent was unsuccessful on the substantive issues regarding its statutory
responsibilities.
16. There are also wider public factors to consider. Public law is not about private
rights but about public wrongs, as Sedley J said in R v Somerset County Council, Ex
p Dixon [1998] Env LR 111 when considering a question of standing. A court may
refuse permission to bring a judicial review claim if it considers the claimant to be
a mere meddler or if it considers that the proceedings are unlikely to be of sufficient
significance to merit the time and costs involved. But in this case the court
considered that the issues were of sufficient significance to give permission. And
the ruling of the court, particularly under section 149, contained a lesson of general
application for local authorities regarding the discharge by committee members of
the council’s equality duty. If a party who has been given leave to bring a judicial
review claim succeeds in establishing after fully contested proceedings that the
defendant acted unlawfully, some good reason would have to be shown why he
should not recover his reasonable costs.
17. I cannot see that the fact that in this case the determination of illegality came
after it was too late to consider reopening the 2012/13 budget provided a principled
reason for making the appellant pay any part of the respondent’s costs. On the
contrary, for the reasons stated the appellant was in principle entitled to some form
of costs order in his favour. The issues raised by the appellant at first instance were
considerably wider than the issues on which he was given permission to appeal.
They included, for example, a far-reaching challenge to the adequacy of the
respondent’s EIAs. This challenge required detailed rebuttal by the respondent. The
appellant also persisted in seeking an order to quash the decision approving the
budget when that was unrealistic. Those are reasons for limiting the order for costs
in his favour. Logically it might be said that a distinction should be drawn between
the costs at first instance and in the Court of Appeal to reflect the different issues,
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but each hearing occupied the court for one day and the assessment can only be
broad brush.
18. I would allow the appeal, set aside the Court of Appeal’s order and substitute
an order that the appellant should recover two thirds of his costs both at first instance
and in the Court of Appeal.
19. Having succeeded in reversing the costs orders made by the courts below, the
appellant is entitled to his reasonable costs of so doing. However, a significant
proportion of his written and oral argument before this court was directed to the
question of a declaration. On that issue his argument had no merit when examined
against the way that his case was presented in the lower courts, which only emerged
fully from the submissions of the respondent. As at present advised, I would order
that the appellant should recover two thirds of his costs in this court, to be assessed
if not agreed; but the order should not be drawn up for seven days, during which
time either party may, if so advised, make written submissions as to why a different
order should be made.
