Royal Free London NHS Foundation Trust, R (On the Application Of) v Saker [2013] EWHC 4101 (Admin)

[2013] EWHC 4101 (Admin)Case No CO/11080/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18 December 2013
Before
THE HONOURABLE MR. JUSTICE COULSON
Between
ROYAL FREE LONDONClaimantNHS FOUNDATION TRUSTClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENT1 st DefendantSAMHIR MAHMOD SAKERInterested Party
The Queen on the Application of:
Mr George Thomas (instructed by Bevan Brittan LLP) for ClaimantMs Holly Stout (instructed by The Treasury Solicitor) for 1 st DefendantMs Fiona Scolding (instructed by Brent Legal Services) for 2 nd DefendantHearing Hearing date: 18 December 2013
Judgment
[1]INTRODUCTION This is an application by the claimant against both defendants for the costs of these judicial review proceedings. There is also an application by the second defendant, the London Borough of Brent, to set aside that part of the order of His Honour Judge Thornton QC dated 11 October 2013 by which he ordered the second defendant to pay £2,000 as a contribution to the first defendant’s costs. It is an unhappy fact that this hearing, and this judgment, concern relatively modest sums by way of costs which are being disputed by parties who are ultimately funded by the taxpayer.[2]THE UNDERLYING PROCEEDINGS In the underlying judicial review proceedings, which were started on 13 August 2013, the claimant sought judicial review of various decisions made by the first and second defendants concerning the interested party, Mr Saker, whose immigration status was uncertain. He had been treated in one of the claimant’s acute bed wards and had not been discharged because of the difficulties of finding alternative accommodation for him. The critical decisions that were the subject of the judicial review proceedings were a decision by the first defendant on 16 May 2013, which noted that there was no available bed in an immigration detention centre. This was said to be a relevant consideration because of the first defendant’s stated intention at that time to deport Mr Saker. There was also the decision of 16 July 2013 by the second defendant, which refused to provide Mr Saker with accommodation.[3]In his order of 13 October 2013, Judge Thornton QC granted the claimant permission to bring judicial review proceedings against the second defendant but refused permission against the first defendant. The reasons for his findings against the second defendant were set out as follows:
“1. Second defendant. The first defendant’s summary grounds of defence clearly and cogently set out reasons why the second defendant has a statutory duty to provide the claimant with section 21 NAA care and attention and why the second defendant’s refusal is, or appears to be, maintained on an erroneous understanding of the interested party’s entitlement to remain in the United Kingdom. It appears from those summary grounds that the interested party has erroneously proceeded on the basis that the interested party was and remains subject to removal from the United Kingdom for non-exercise of Treaty Rights. In fact the interested party is the holder of an unrestricted Residence Permit. 2. On that basis, the interested party is entitled to care and attention from the second defendant. What is equally clear is that the interested party is bed blocking a space urgently needed in one of the claimant’s acute bed wards and has been required to be held there for many weeks after he should have been discharged if suitable accommodation had been made available to him by the second defendant. 3. There is an urgent need for the interested party to be provided with facilities to enable him to be safely discharged from the claimant. The second defendant is, through the claimant’s solicitor and in conjunction with the claimant, to arrange any necessary assessment and to apply its statutory duty under section 21 of the NAA so as to enable the interested party to be safely discharged on, at least, an interim basis. The long-term accommodation arrangements will need to be sorted out thereafter and finalised by arrangement or by the Administrative Court at a substantive hearing.”
[4]As noted, the first defendant’s acknowledgment of service sets out clear reasons why the failure to provide suitable accommodation for Mr Saker was nothing to do with the first defendant. Judge Thornton accepted those submissions. He refused to grant the claimant permission to bring judicial review proceedings against the first defendant and he noted in paragraph 7 of his order that Mr Saker’s immigration status was irrelevant to the second defendant’s obligation to provide alternative accommodation. That reinforced the conclusion that there was no claim against the first defendant.[5]The claim against the second defendant has now been compromised save for the issue as to damages, with which I am not asked to deal today. The parties have agreed that this matter should be considered in the Queen’s Bench Division. However, as I have noted, there remain live issues as to costs.[3]THE CLAIMANT’S CLAIM FOR COSTS AGAINST BOTH DEFENDANTS[6]The claimant seeks its costs against both the first and second defendants. On the face of it this is surprising, since the claimant had lost against the former but won against the latter. Although I pressed him on this stance at the outset of the hearing, Mr Thomas, on behalf of the claimant, submitted that, in all the circumstances, the claimant was entitled to its costs from both defendants and continued to maintain a claim for costs against the first defendant. This necessitated a consideration of the relevant parts of the Civil Procedure Rules, which was not a topic which had featured in the claimant’s skeleton argument.[7]Pursuant to CPR Part 44.3(2)(a), the general rule is that the successful party is entitled to its costs against the unsuccessful party. In this case the claimant has been successful against the second defendant, and is therefore entitled to its costs against the second defendant. What about the first defendant?[8]In my view, having considered the submissions made and the material in the papers, there is no legitimate basis on which I could or should order that the claimant is entitled to recover any part of its costs against the first defendant. There are a number of reasons for that. The principal one, of course, is that the judicial review claim against the first defendant failed. Accordingly, the general rule means that the claimant is not entitled to its costs against the first defendant: the claimant was manifestly not the successful party as against the first defendant.[9]The claimant’s correspondence, the pre-action letter of 1 August 2013, and the claimant’s submissions (including the submissions advanced today) all appear to hinge on the proposition that the proceedings against the first defendant were justified because the first defendant had repeatedly indicated, earlier in the year, that Mr Saker would be deported as an over-stayer. The suggestion, therefore, is that by stating this intention on a number of occasions, the first defendant somehow acquired the responsibility for ensuring suitable alternative accommodation for Mr Saker once his medical treatment had been completed. As I pointed out to Mr Thomas, this meant that the claimant was really arguing that, notwithstanding the failure of the judicial review proceedings against the first defendant, the first defendant’s conduct pursuant to CPR 44.3(4)(a) and (5) was a relevant consideration and was the reason why costs should be awarded against her.[10]In my view, that was a wholly erroneous stance for a number of reasons. First, it seems to me that such a submission had the effect of going behind Judge Thornton’s decision, because he ruled that, whatever had been the first defendant’s earlier intention as to deportation, there was no case in law against her. It is not legitimate to go behind the underlying judgment on the merits, much less endeavour to contradict it, in order to argue about costs.[11]Secondly, an analysis of the facts demonstrates that the duty to provide suitable accommodation always rested with the second defendant. It was the second defendant who failed in the discharge of that duty. The suggestion that, because the first defendant intended to deport Mr Saker for breaching his conditions of leave, she had some sort of obligation to deprive him of his liberty and provide him with accommodation by detaining him in a detention centre, is plainly misconceived. There was no obligation to deport him; it was that conclusion that led to Judge Thornton’s rejection of the claim against the first defendant in the first place.[12]Other matters of alleged conduct were raised by the claimant but they add nothing. First, it was said that the first defendant indicated at one point that a suitable bed would be found. There was correspondence to that effect, although in the event no such bed was available. However, this did not create a stand-alone legal obligation which was not otherwise there. Secondly, Mr Thomas complained that there was a long period in the run up to the judicial review proceedings, which he described as ‘a wall of silence’, when no responses were received from the first defendant. Again, it seems to me that it was for the claimant to resolve the question of Mr Saker’s accommodation with the second defendant, not anybody else. Moreover, I note that all of this occurred before these proceedings were even contemplated, and therefore has nothing to do with the costs of the proceedings which are the subject of this claim: see Hall v Rover [2002] EWCA Civ 1514.[13]Finally, there was suggestion of a failure to comply with the pre-action protocol. That seems to me to be wrong on the facts, as Miss Stout demonstrated. The letter of 1 August from the claimant made plain that proceedings were contemplated. The first defendant properly responded to that letter. The judicial review proceedings were issued regardless of that response, because of a concern that the three month period, triggered by the first defendant’s email of 16 May, might be about to expire. None of that, it seems to me, is conduct warranting any departure from the normal rule as to costs.[14]Finally on this point, I am bound to observe that, whilst reliance upon what are sometimes called ‘the conduct provisions’ of CPR 44.3(4)(a) and (5) may reduce, and even sometimes eliminate, an unsuccessful party’s obligation to pay costs to a successful party (see Brit Inns Ltd v BDW Trading Ltd [2012] EWHC 2489), and can lead to orders in favour of the unsuccessful party on certain issues (see Summit Property Ltd v Pitmans [2001] EWCA Civ 2020), there is no case of which I am aware (and certainly none was cited to me), in which conduct alone has led to an order by which the unsuccessful party (in this case the claimant, as against the first defendant) recovers the totality of its costs from the successful party (in this case the first defendant). I do not think that the facts of this case begin to justify such an unusual order.[15]Accordingly, for the reasons that I have given, although the claimant is entitled to its costs against the second defendant, the claimant is not entitled to any costs against the first defendant. The first defendant seeks no costs order against the claimant.[16]As to the detail of the costs order against the second defendant, in the course of her admirably clear submissions, Miss Scolding made the following points as to why the costs order against the second defendant should not be in the full amount of the sum claimed, which (taking away the costs of today), amount to just less than £15,000. Miss Scolding made the following points:(a) She argued that the second defendant should only be liable for the costs of the judicial review proceedings as against the second defendant and that, to the extent that the claimant had spent costs on the proceedings against the first defendant, the second defendant should not be liable for those.(b) She said the proceedings were premature because there was not time to comply with the pre-action protocol before they were commenced. She noted that the second defendant had replied to the pre-action letter on 12 August, but the proceedings were started in any event on 13 August.(c) She noted that her clients had indicated a desire to mediate if there was a stay, but no stay was agreed by the claimant and that, therefore, the costs were incurred through no fault of the second defendant.(d) She noted that the second defendant made repeated attempts to settle the case and they had prepared a draft compromise order prior to the decision of Judge Thornton. That compromise was not agreed by all parties. One of the terms of the proposed compromise was that the second defendant would undertake the necessary assessment of Mr Saker. In consequence of all that, Miss Scolding said that the second defendant should, on a rough and ready summary assessment of costs, pay only a third of the claimant’s costs, or £5,000 out of the £15,000 sought.[17]In response, Mr Thomas submitted that:(a) The costs were triggered by the unlawful decision of the second defendant in July, so all the costs of the proceedings should be paid by the second defendant.(b) Whilst he agreed with Miss Scolding’s chronology, he said that the proceedings had to be started because of the concern that the three month period from the first defendant’s email of 16 May was about to expire.(c) He noted that the second defendant’s offer was not that the proceedings be stayed, but that the proceedings be withdrawn and argued that, in the circumstances, that was unreasonable.(d) He pointed out that the claimant also tried to compromise the proceedings, and had been part of the attempt to agree a consent order and that it was not the claimant’s fault that that had not happened.[18]In my view, the right answers on those four issues are as follows:(a) Costs against the Second Defendant only: I accept Miss Scolding’s submissions. The claimant took the decision to issue proceedings against two parties. The claimant therefore, took the associated costs risk if, as turned out to be the case, the claim against one of those parties was misconceived. The costs consequences of that decision should not be visited on the second defendant.(b) Premature Proceedings: Again I accept Miss Scolding’s submissions. It does seem to me that it would be wrong in principle to penalise the second defendant because of the precipitate way in which these proceedings were commenced. That was again a matter for the claimant, and was triggered by the claimant’s concerns about the first defendant’s position.(c) Offer To Mediate: I accept Mr Thomas’s submissions on this. The second defendant’s offer was to mediate, but only if the proceedings were withdrawn. I consider that that was an unreasonable pre-condition, so that is not a matter that sounds in favour of the second defendant.(d) Compromise: I accept Mr Thomas’s submissions on this too. The claimant did try to compromise. The failure to settle was due to the first defendant but, of course, the first defendant was only a party to the proceedings because of the erroneous decision by the claimant to join her in the first place.[19]What, therefore, on the rough and ready summary assessment of costs, ought I to do about all of that? Well, taking into account all the circumstances, it seems to me that the right answer is to make the second defendant liable for 50% of the claimant’s costs, excluding today’s hearing. I therefore assess the claimant’s costs against the second defendant, on the rough and ready figures that I have indicated, in the sum of £7,500.[4]THE SECOND DEFENDANT’S APPLICATION AGAINST THE FIRST DEFENDANT

Judge Thornton dealt with costs as between the defendants in this way:

“7. First defendant. Permission is refused against the first defendant. The first defendant is entitled [to] its costs of preparing the Acknowledgement of Service which are summarily assessed in the sum of £2,000 plus VAT (if chargeable). These costs should be paid by the second defendant whose failure in breach of duty to address the urgent need to provide section 21 assistance on first being notified of the interested party’s situation irrespective of his immigration status has caused such costs to be incurred. The second defendant need play no further part in this judicial review… Costs of First Defendant If the claimant does not seek a reconsideration, the first defendant’s costs of preparing the Acknowledgement of Service are to be paid by the second defendant to the first defendant, in the sum of £2,000 plus VAT unless within 14 days the second defendant notifies the court and the claimant and the first defendant, in writing, that it objects to paying costs, or as to the amount to be paid, in either case giving reasons. If it does so, the claimant and the first defendant has a further 14 days to respond to both the court and the second defendant, and the second defendant has the right to reply with a further 7 days, after which the claim for costs is to be put before a judge to be determined on the papers. Where the claimant seeks reconsideration, costs are to be dealt with on that occasion.”
That order was clear and in accordance with the views he had reached on the merits.

Costs of First Defendant

[21]The second defendant gave no notice of objection and made no application within the 14 days specified (that is to say by 25 October) to set aside that order, although they did not comply with it. On 11 December 2013, some six weeks out of time, the second defendant then applied to set aside this part of the judge’s order and sought relief from sanctions.[22]In my judgment, the application to set aside and the application for relief from sanctions are both hopeless. The order was validly made; the second defendant failed to comply with it; and no justification for that failure is offered. The terms of CPR 3.9 are as follows:
“Relief from sanctions 3.9 (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders. (2) An application for relief must be supported by evidence.”
As is well known, the Court of Appeal has recently provided guidance on this new rule in Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ. 1357. In his judgment, the Master of the Rolls said: “41. If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue. We should add that applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief from sanction made after the event. … 45. On an application for relief from a sanction, therefore, the starting point should be that the sanction has been properly imposed and complies with the overriding objective. If the application for relief is combined with an application to vary or revoke under CPR 3.1(7), then that should be considered first and the Tibbles criteria applied. But if no application is made, it is not open to him to complain that the order should not have been made, whether on the grounds that it did not comply with the overriding objective or for any other reason. In the present case, the sanction is stated in CPR 3.14 itself: unless the court otherwise orders, the defaulting party will be treated as having filed a budget comprising only the applicable court fees. It is not open to that party to complain that the sanction does not comply with the overriding objective or is otherwise unfair. The words "unless the court otherwise orders" are intended to ensure that the sanction is imposed to give effect to the overriding objective. As we have said, the principles by which the court should decide whether to order "otherwise" are likely to be the same as the principles by which an application under CPR 3.9 is determined. In most cases, the question whether to relieve a party who has failed to file a costs budget in accordance with CPR 3.13 from the CPR 3.14 sanction will therefore be dealt with under CPR 3.14. That did not happen in the present case. That is why the question of relief from sanctions was dealt with under CPR 3.9.” (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.[23]In this case, although there was a late statement from Miss Jarrett, and a skeleton argument from Miss Scolding, neither of those documents set out how and why the court ought to allow the second defendant to challenge and go behind Judge Thornton’s order, six weeks out of time.[24]In her oral submissions, which were again both clear and realistic, Miss Scolding accepted that there were difficulties with the second defendant’s application. But she argued that, because there was a statement from Miss Jones of the claimant, dated 16 October, which dealt with the question of the claimant’s costs (particularly as against the first defendant), and because costs were going to be considered at this hearing anyway, it was not unreasonable for the second defendant to wait and deal with the issue of costs at this hearing. But that ignores the clear and proportionate order made by Judge Thornton. Moreover, it does not seem to me that the fact that Miss Jones was continuing with a misconceived application, to the effect that the first defendant should be paying the claimant’s costs, could have had any bearing on the second defendant’s decision belatedly to challenge the order of Judge Thornton.[25]Miss Scolding’s other point was that there was no prejudice as a result of the six week delay in making the application. As I am sure Miss Scolding was keenly aware, even as she made that submission, under the new terms of CPR 3.9, the question of prejudice is no longer a reason for allowing or disallowing relief from sanctions: see Murray and Stokes v Neil Dowlman Architecture Ltd [2013] EWHC 872, at paragraph 19. The emphasis now is on the need to comply with the CPR, not arguing about the impact or otherwise of a failure to comply. In any event, it seems to me that there have been various kinds of prejudice arising from the delay, including the fact that the first defendant has had to attend today to deal with this part of the argument.[26]For those reasons, the second defendant’s application against the first defendant to set aside the costs order of Judge Thornton is refused. Therefore the second defendant must pay the £2,000 which the judge identified. That is the only order which the first defendant seeks against the second defendant, save in relation to issues of costs arising out of this hearing which I will deal with separately.

Cited in 1 later judgment