This Court of Appeal decision examined the guidance in M v Croydon London Borough Council  EWCA Civ 595 concerning the approach to costs where a judicial review claim is compromised and withdrawn before the final hearing.
The appellant had brought a judicial review claim against the council in November 2018, contending that the council had breached both the duty owed to her under section 189A of the Housing Act 1996 to produce a lawful Personal Housing Plan (“PHP”) and the duty to provide suitable accommodation.
Specifically, the appellant had sought (1) a mandatory order requiring the council to secure suitable accommodation for herself and her daughters, (2) a declaration that the accommodation provided for her was not suitable for a family of seven, and (3) a declaration that the council had failed adequately or at all to comply with its duty to prepare a lawful PHP.
In February 2019 the council offered to rehouse the appellant in self-contained accommodation. She accepted that offer. An updated PHP provided later that month indicated that this was the result of the council being provided with a report from the appellant’s expert, Dr Walsh.
It was subsequently agreed that the appellant would withdraw the claim for judicial review with neither party accepting the other’s position on the merits and with liability for costs to be determined by the court on the basis of written submissions.
Upon consideration of the parties’ submissions, the judge determined that there should be no order as to costs on the basis that:
“it was impossible, without conducting a full trial of the claim, to determine whether there was any causal connection between the claim for judicial review and the offer of accommodation made to and accepted by the appellant shortly before the claim was due to be heard.”
The appellant appealed on grounds that this represented a failure to apply the guidance in M v Croydon and that the judge failed to take account of factors which should have resulted in an award of costs in her favour.
Her appeal was unsuccessful.
“On the basis of the submissions made to the judge, it is not possible for this court to say that his conclusion in this case was not open to him. Some judges might perhaps have regarded the timing of the offer as telling, coming as it did only a short while before the hearing of the judicial review claim, and might have been sceptical about the speed with which the appellant had apparently reached the head of the queue when the average delay had previously been stated to be of the order of something more than six months. But it is impossible to say that the judge was not entitled to conclude that the position was not clear…. In all these circumstances the judge was entitled to conclude that the appropriate course was to make no order for costs. At all events, it is impossible for us to say that this was an exercise of discretion which was not open to him. His decision involved no error of law which would entitle this court to interfere and was neither unjust nor perverse.”