July 23rd, 2015 by James Goudie KC

In Hunt v North Somerset Council [2015] UKSC 51 the Supreme Court unanimously allowed an appeal by Mr Hunt in relation to costs from (2013) EWCA Civ 1320. Mr Hunt suffers from ADHD, learning difficulties and behavioural problems. As a result, the Council were statutorily required, 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. On 21 February 2012, the Council made a decision to approve a reduction of £364,793 from its youth services budget for 2012/2013. Mr Hung brought judicial review proceedings of that decision. He argued that the decision was unlawful on two grounds: (1) the Council had failed its duty under Section 507B of the Education Act 1996 to take properly into account the views of young persons with difficulties such as his; and, (2) it failed to fulfil its public sector equality duty under Section 149 of the Equality Act 2010 to have due regard to the equality needs of disabled individuals.

Wyn Williams J rejected Mr Hunt’s challenges to the legality of the decision. The Court of Appeal allowed Mr Hunt’s appeal. It, nonetheless, refused to make a quashing order, considering that it was too late to unwind the entire revenue budget for the financial year. It also ordered him to pay half of the Council’s costs. Mr Hunt appealed to the Supreme Court on the basis that the Court of Appeal should have made an order for costs in his favour (and a declaration that the Council had failed in its statutory obligation.

In relation to costs, the Supreme Court said (paragraph 15), that although the discretion of a Court in a matter of costs is “wide” and it is “highly unusual” for the Supreme Court to entertain an appeal on the issue of costs, the Court of Appeal said that it reached its decision “as a matter of principle”, treating the Council as the “successful party”. The Supreme Court ruled that in that respect the Court of Appeal fell into error. As the Court of Appeal rejected the Council’s case on the two issues, it was only successful in the limited sense that the findings of failure came too late to do anything about what had happened in the past, although this occurred through no fault on Mr Hunt’s part. It was unsuccessful on the substantive issues regarding its statutory responsibilities

The Supreme Court went on to say (per Lord Toulson):-

“16. There are also wider public factors to consider.  Public law is not about private rights but about public wrongs … 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 by 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 cost orders in his favour. …”

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