Baksh, R (on the application of) v London Borough of Brent [2017] EWHC 894 (Admin)

Case No CO/4615/2016[2017] EWHC 894 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 5 April 2017
Strand
London WC2A 2LL
B e f o r e:
ROBIN PURCHAS QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF BAKSHClaimantv
Between
LONDON BOROUGH OF BRENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Ms E Waldron (instructed by Sinclairs Law) appeared for ClaimantMs T O'Leary (instructed by the London Borough of Brent Legal Services) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: In this matter, Ms Waldron, who appears for the claimant, applies for permission to file a new statement of facts and grounds and that the hearing of this matter be adjourned on directions to be agreed to allow further procedural steps to be taken before the matter comes for hearing.[2]The claim concerns an application for judicial review of an assessment made under the Care Act 2014 dated 8 June 2016. The claimant is a vulnerable person suffering from autism with other mental problems. The claim itself was issued on 9 September 2016. On 20 October 2016, the Deputy Judge granted permission on the papers on grounds 2 and 3 and refused permission on grounds 1, 4 and 5. On 13 January 2017, after other procedural steps, an order was made by consent, approved by the court, that the defendant serve on the claimant an updated assessment by 10 January 2017. In fact, that assessment was served on the Claimant on 1 February 2017, but has not been submitted to the court. The order then directed that the claimant may amend the statement of facts and grounds following receipt of the updated assessment, if so advised, to be filed by 4.00 pm on 17 January 2017.[3]The amended statement of facts and grounds, such as they are, was passed into the court this morning during the hearing (that is 5 April 2017). As Ms Waldron frankly accepted, they were not amended grounds because there are substituted grounds; there are no marked amendments, they have been drafted afresh. I have not had the opportunity properly to read them, but I am told that they are now directed towards the new assessment, which was served on the claimant on 1 February 2017. In the directions there were further detailed steps to be taken, including service of amended detailed grounds of defence and reply to the amended statement of facts and grounds. Ms O'Leary, who appears for the defendant, has informed the court that late yesterday afternoon she was given a copy of the new statement of facts and grounds and that if permission is granted she would want to respond to it. The directions further provided that the rolled-up hearing listed for 13 January 2017 should be relisted for the first available date after 6 February 2017.[4]On 20 January 2017 the court listed the hearing for today leaving a whole day to enable this matter, concerning the claimant's care and the issues under the Care Act, to be heard today. There were further directions made as to serving a trial bundle, skeletons and agreed bundle of authorities. None of that has been complied with. This morning, at 10.15 am, I had a procedural argument from Ms O'Leary. As far as Ms Waldron was concerned, I had a note passed to me in court at the beginning of the hearing today.[5]I should also record that on 22 March 2017 there was an application made to the court to vacate today's hearing with amended directions to be made. That was considered by Master Gidden on 31 March 2017. He refused that application to adjourn. He set out the background to the document. His reasons then continued:
"In October permission was granted on the Claimant's second and third grounds only and in light of all that was said as to urgency an order was made for an expedited hearing to be listed as soon as reasonably practicable on or after 12 December 2016."
He then sets out the terms of the order on 13 January and then the application made to vacate the list:
"It appears from the application that the Claimant wishes to consider whether or not to proceed and possibly to amend his grounds if he does. The application is dated 22 March 2017 and there is no explanation why a whole fortnight before the hearing listed on 5 April a decision cannot be made about whether or not to proceed. In all the circumstances this does not appear to be a sound or sensible way to litigate in this Court. The unavoidable need to embark upon proceedings ought to have been firmly established at the very outset, particularly in a case like this where it is contended that urgent consideration is required from the Court. And whilst it is admirable that the parties wish to avoid wasting costs this is inevitably going to be the case where proceedings are conducted in this manner with repeat requests to vacate successive attempts to list in line with a call for urgency. It may be that with proper explanation a Judge will be persuaded that the Court is being treated properly but that is not now how it appears on the papers, and for that reason the application is refused. The claim will remain in the list for 5 April 2017 so that a full explanation can be provided and proper consideration given as to whether the claim should be withdrawn, or how best it should proceed; as well as how this outcome, and the manner of our arriving at it, should be fairly reflected in costs."
[6]As I have said, the way that in fact it has been dealt with is that the court has been presented this morning with the additional papers from Ms Waldron.[7]In these circumstances, I have to consider the application that has been made. I start by considering the three-stage test in Denton: The first stage is to identify and assess the seriousness and significance of the failure to comply with any rule or practice direction or court order. There has been an absolute failure effectively to comply with the directions made last January in this case where urgency has been ordered and in the context of a vulnerable claimant. The significance of that is that this matter, on the face of it, is not ready to proceed today in the absence of any order for amendment or indeed if the order for amendment was given.[8]So far as the second stage is concerned, that is the explanation for the failure, Ms Waldron has been quite frank; she has drawn attention to the fact that on 28 March an email was sent to the claimant's GP seeking further information, which was made available in the form of an email from the GP on 31 March. That was at a time when the application had been made to adjourn. There was no explanation why that was not sought at an earlier stage. She also directed my attention to a general note from Dr Christie, the GP, of 4 January 2017. That was plainly generated from within the claimant's side. Whether by his solicitors or by Mr Telesford, his supporter, is not clear. Although it is dated 4 January, I am told it was not actually passed to the claimant until the beginning of February but if it had been asked for it could have been pursued well before then.[9]In short, in my judgment, there is no explanation whatever for the way the matter has been handled or in the failure to comply with the directions to ensure this matter was brought properly before the court to be considered today.[10]The third stage then is to evaluate the circumstances of the case. There is clear prejudice to the defendant. It is said that they had earlier agreed to the adjournment on the basis of it being vacated in the context of the application to Master Gidden. But that, in my judgment, is wholly different from the situation where the matter is sought to be dealt with on the day of hearing, which had been confirmed by Master Gidden.[11]So far as the claimant is concerned, he has been badly let down by those representing him. There has been a total failure to comply with the very clear directions of this court to ensure his case is dealt with properly. However, any prejudice to this vulnerable man arises out of a reassessment which the court has not seen. That can be addressed by taking any further proceedings that are thought appropriate. Of course, that will engage the procedures of this court for judicial review, including the permission stage, which is important, particularly bearing in mind the opportunity to deal with cases that are totally without merit.[12]So far as the present proceedings are concerned, they are dealing with an assessment in June of last year, which Ms Waldron has accepted has been overtaken by the new assessment. I have to have regard, of course, to the convenience to which this court drew attention in the case of Turgut, for example, where if there is a new decision on similar facts it is convenient for the proceedings to continue on that basis. However, in my judgment, here, the just disposal of this case would not justify adjourning this matter, giving the leave sought for, rather than refusing permission and dealing with the present application as it stands.[13]For all those reasons, in my judgment, the just and fair disposal of this matter is to refuse relief, refuse permission for the replacement statement of facts and grounds and to refuse any adjournment.[14]Ms Waldron, I am ready to proceed then. Shall we deal with permission first?[15]MS WALDRON: Yes, my Lord.[16]THE DEPUTY JUDGE: Do you make any application? Do you want to have a few moments?[17]MS WALDRON: If I may, my Lord.[18]THE DEPUTY JUDGE: Do you want me to rise for a few moments for you to consider it?[19]MS WALDRON: It should not take long, my Lord. (A short pause)[20]MS WALDRON: I am grateful, my Lord, for that moment, apologies. No application arises, in effect, from the judgment you have given. I do not seek permission to appeal. Effectively, as it seems, this matter will in those circumstances have to be dismissed. We are in time. The claimant is, effectively, given an opportunity to bring fresh proceedings with a fresh statement of facts and grounds. I anticipate that my learned friend may wish to address you on costs.[21]THE DEPUTY JUDGE: Ms O'Leary, we will come to any applications in a moment but in those circumstances I will refuse the applications for permission and I think the right thing is to dismiss the claim for judicial review on the basis it is not being further proceeded with today. Do you have any application?[22]MS O'LEARY: Yes, my Lord. If you might like to have a quick look at my skeleton argument. I have set out some suggested language in terms of applying for costs.[23]THE DEPUTY JUDGE: It is at the back, is it?[24]MS O'LEARY: It is at page 8, second last page. You will see at paragraph 37A I have set out what we would be asking for in the event that the claimant is refused leave from sanction and the claim is dismissed. What we are asking for is, essentially, that there would be no order for costs on this claim except that there would be detailed assessment, which must follow in any event. But also we are going to ask that we be given the costs of attending today on the basis of, essentially, wasted costs on the part of the claimant.[25]THE DEPUTY JUDGE: That will be subject to section 26.[26]MS WALDRON: Indeed. What I have included in the language in italics at the bottom of page 8, top of page 9 is:
"The Claimant to pay the Defendant's costs summarily assessed ... subject to a determination, for those periods he was entitled to and received legal aid, of his ability to pay such costs pursuant to s. 26 of the Legal Aid, Sentencing & Punishment of Offenders Act 2012."
My understanding is that is the standard language used. Section 26 provides costs protection. It means that on detailed assessment --[27]THE DEPUTY JUDGE: I have seen it.[28]MS O'LEARY: In terms of the costs that I am actually asking for, I do not have a costs schedule but what I am asking for is the costs of my brief fee today plus VAT; plus £200, which my solicitors have suggested represents their costs of attending and travelling to court.[29]THE DEPUTY JUDGE: What is the total amount?[30]MS O'LEARY: It is £1,700 in total.[31]THE DEPUTY JUDGE: Do you object to the principle, first of all?[32]MS WALDRON: My Lord, in effect, no, save for the fact that a reassessment was carried out, so it could be argued that the claimant should be entitled to their costs for the period between issuing this and the reassessment being carried out. We have, effectively, succeeded in part to that extent. In terms of the £1,700, apologies because I think it may have been because I was taking instructions.[33]THE DEPUTY JUDGE: It is a broad figure. There is not a bill to support it. It is made up of Ms O'Leary's brief fee for today and £200 towards her support from solicitors behind her.[34]MS WALDRON: The only matter that I did not quite understand there was whether that was being sought from the claimant.[35]THE DEPUTY JUDGE: It is a normal order for costs to be paid by the claimant and subject to section 26.[36]MS WALDRON: I am not going to object, save for the submissions I have made in terms of the first part.[37]THE DEPUTY JUDGE: Ms O'Leary, I need not trouble you on that point. In these circumstances, I am satisfied that the claimant should pay the defendant's costs, which I will summarily assess in the sum of £1,700 but subject to a determination for those periods he was entitled to and received legal aid of his ability to pay such costs pursuant to section 26 of the Legal Aid, Sentencing & Punishment of Offenders Act 2012, and that there be a detailed assessment of the claimant's legally aided costs. So I hope that covers the matters in court. Thank you both very much.