Kuzjeva & Anor, R (on the application of) v London Borough Of Southwark [2001] EWCA Civ 1829 (21 November, 2001)

Neutral Citation Number: [2001] EWCA Civ 1829 C/2001/1596 IN THE SUPREME COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT (Mr Justice Collins) Royal Courts of Justice Strand London WC2 Wednesday 21st November, 2001 B e f o r e : LORD JUSTICE SEDLEY ____________________ THE QUEEN ON THE APPLICATION OF (1) MRS M KUZJEVA (2) MR V ANUFRIJEVAS Claimants - v - THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF SOUTHWARK Defendant ____________________ (Computer Aided Transcript of the Palantype Notes of Smith Bernal Reporting Limited, 190 Fleet Street, London EC4A 2AG Tel: 020 7421 4040 Official Shorthand Writers to the Court) ____________________ MR N O'BRIEN (Instructed by Messrs Ole Hansen & Partners, London SE11 6JF) appeared on behalf of the Applicants THE RESPONDENT did not appear and was not represented ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © LORD JUSTICE SEDLEY: This is an application for permission to appeal which, on the face of it, is concerned solely with the incidence of costs. It does, however, raise quite clearly an important point of principle, and not for the first time. It is a recurrent problem which has been dealt with in the past largely on an abstentionist basis, but may well deserve, at least in the sort of situation that has arisen here, a more analytical approach. Essentially what happened in this case was that a family of asylum seekers who had a legal entitlement to some form of accommodation under the 1999 Act, albeit they had made a false start under the Housing Act, had to proceed by a succession of judicial review applications against the responsibility local authority, the London Borough of Southwark. If there was an issue about the legal responsibility of Southwark, it has either been conceded or gone against them because the case rapidly turned simply into a question, not of whether Southwark was responsible but of whether and when and how it was going to fulfil its responsibility. According to the statement of Maria Clarkson Palomares dated 2nd July 2001, there was a persistent history of inactivity until the very eve of each of the successive hearings that took place, resulting in a build-up of costs, all of which were going inevitably to fall upon the Legal Services Commission unless they were awarded against the London Borough of Southwark. On 3rd July 2001, in making an order which (Mr O'Brien tells me today) has finally succeeded in producing the required accommodation, Collins J took the view that public funds being involved on both sides the right order was that costs should lie where they fell. This has two serious implications. One is that the legal services budget is emptied of that much money, and in a situation in which it may have been entirely the fault of the local authority that so many costly applications have had to be made to the court. The other, as in the present case, is that a damages claim which is proceeding and which Harrison J has declined on Southwark's application to strike out, is capable of running into the sand because any damages recovered will be subject to a first charge in favour of the Legal Services Commission, which would simply transfer the financial injustice (if injustice it was) from the Commission to the claimant. (I say the claimant because of the two original claimants the elderly lady, Mrs Kuzjeva, has unhappily died in the interim, so that only the male claimant remains.) I refused permission on the papers because there seemed to me to be a number of queries which might mean that the issue of principle was fogged by issues of fact. Mr O'Brien has been able to satisfy me today that there may well not be any such issues obscuring the issue of principle. In those circumstances, it seems to me that the case is a proper one for the grant of permission to appeal. In particular, I am influenced by the fact that although there is no reference to it either in the judgment of Collins J or in the recitals in the court's formal order, the statement of Maria Clarkson Palomares summarising the procedural history was, as Mr O'Brien tells me and as I accept, before the judge. Even if were not, apart from the element of the statement which consists of comment, the procedural history was a matter of record to which it is at least arguable that the judge should have had regard, whether or not it was summarised in a statement. In these circumstances, permission to appeal is granted. ORDER: Application for permission to appeal granted; costs of this application to be costs in the appeal. (Order not part of approved judgment) ____________________ BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII