NS & RS v Kent County Council: [2021] UKUT 311 (AAC) [2021] UKUT 311 (AAC)

‘40. … The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion [whether to order costs], but that is not the same as requiring BNP Paribas to prove that specific unreasonable conduct by the applicant caused particular costs to be incurred.’

‘41. … the indemnity principle must apply to the award of costs. It is not, however, punitive and impermissible for a tribunal to order costs without confining them to the costs attributable to the unreasonable conduct.’

‘41. … As I have explained, the unreasonable conduct is a precondition to order costs and it is also a relevant factor to be taken into account in deciding whether to make an order for costs and the form of the order.’

“12(1) When preparing an EHC plan a local authority must set out ….

“42(1) This section applies where a local authority maintains an EHC plan for a child or young person. (2) The authority must secure the specified special educational provision for the child or young person …”

“R is content to name St John’s College in section I of the Working Document”, at para 42). The Appellants were clear that St John’s College was agreed when they filed their Further Information on 10 January 2020. What remained to be agreed was the number of days and weeks of the residential placement. Judge McCarthy said he considered the naming of Brogdale and concluded that it did not merit a costs order. Mr Lawson submitted that the Appellants gave the impression that the agreements were later and more limited than they were. For example, “While it is correct, following a CMC on the 20th March 2020, that formal agreement was made for a 38 week placement…”

“Unless the discretion has been exercised contrary to principle, in disregard of the principle of relevance or is just plainly wrong, an appeal against a tribunal’s costs order will fail.”

“36. The final argument of Mr Johnson, lest he was wrong on his other points, was that this was a case where the Judge received only brief submissions in writing and was asked to make a decision on the papers. He did not have the benefit (that we undoubtedly have had) of detailed written submissions and close oral argument. In R(Parveen) v Redbridge LB [2020] EWCA Civ 194 ("Parveen"), the Court of Appeal has, in effect, warned this court to be chary of interfering in the exercise of discretion by first instance judges on costs matters. Such judges are often required to take relatively rough and ready decisions, often on the papers only, and it is inimical to an efficient administration of justice if the appeal court pores over the fine details and picks holes in findings. A judge's decision should not be overturned simply because the appellate court, after far fuller argument, might take a different view. In Parveen the outcome pivoted upon a variety of non-legal matters. The Court was attracted to certain conclusions that the costs judge, on a relatively rough and ready basis, had not considered persuasive. The Court nonetheless dismissed the appeal and emphasised that, bearing in mind the quite different nature of the hearing before the costs judge and that before the appeal court, the appeal court should only interfere if the conclusion of the costs judge was not " open to him ". The position would have been different had the result been unjust or perverse or had there been an error of law (ibid paragraph [54]).”

“A specialist tribunal, such as the SENDIST, can use its expertise in deciding issues [including rejecting expert evidence], but if it rejects expert evidence before it, it should state so specifically …… where the specialist tribunal uses its expertise to decide an issue, it should give the parties an opportunity to comment on its thinking and to challenge it”

“The position of the LA in purporting to challenge the key issues remaining for determination was made significantly more problematic by the absence of any form of persuasive evidence adduced by them, or indeed by anyone else, which might have been used to properly argue against the well-constructed and fully comprehensive evidence brought by the parents on [G]’s behalf. It left Miss Johnson [counsel for the local authority] in the invidious position of having to simply explore the detail of the main issues remaining in dispute, although such was the quality of the oral evidence then presented that she did not subsequently raise any matters in cross examination.”