Hunt v North Somerset – Judicial Review, Pyrrhic Victories, and Costs

As everyone who practises in the field of public law knows, judicial review has a habit of giving rise to the occasional pyrrhic victory – the apparent success that is actually a defeat. This can happen for a range of reasons. Since relief is discretionary, it is not always granted even where unlawfulness has been made out. When it is granted, it will not necessarily change the ultimate outcome. And, occasionally, success can simply come too late for any effective remedy to be available.

This last situation is the one considered by the Supreme Court in Hunt v North Somerset Council, where the question that arose was how to deal with costs when the claimant won on the law, but got no effective remedy. Put simply, for costs purposes in public law cases, is a pyrrhic victory really a victory or actually a defeat?

Background

The relevant facts can be simply stated. The claim was one of the series of ‘cuts cases’ that have come before the courts since the start of the post-2008 austerity policies. Mr Hunt challenged the decision by North Somerset to make a substantial reduction to its youth services budget for 2012/13. His main grounds were breach of the public sector equality duty and of the statutory obligation to consult under section 507B(9) of the Education Act 1996. He sought the quashing of the budget.

The grounds of claim were dismissed by the judge at first instance ([2012] EWHC 1928 (Admin)) but upheld by the Court of Appeal ([2013] EWCA Civ 1320). However, by the time of the Court of Appeal judgment, it was already late-2013. Unsurprisingly the Court declined to quash a budget of the Council that by this stage related to a financial year that had long since ended. No relief was available. Mr Hunt’s counsel agreed a consent order dismissing the appeal.

In its costs judgment ([2013] EWCA Civ 1483) the Court of Appeal acknowledged that the claim had succeeded on the substantive issues, but noted that it was ‘far too late to consider granting any relief‘ [4]. The appeal was of ‘no practical value‘ to Mr Hunt, and was ‘always destined to fail‘ [5]. In these circumstances, although the Council had lost the substantive arguments, it was the ‘successful party‘ [6].

The Judgment

In the Supreme Court, Lord Toulson, giving judgment for the whole Court, disagreed fundamentally with this approach.

Mr Hunt’s counsel ran an argument about declaratory relief, which they claimed should have been given by the Court of Appeal even if a quashing order was not appropriate. This was a hopeless argument and got short shrift. Counsel had not asked for a declaration either at first instance or on appeal, and had even agreed to an order dismissing the appeal. The argument that the Court of Appeal should have granted a declaration of its own motion was never likely to succeed.

As to declarations, Lord Toulson said that where unlawfulness had been found it would ‘usually be appropriate to make some form of declaratory order‘ but that ‘there is no “must” about‘ it –

‘The judgment of the Court of Appeal itself ruled that the respondent acted unlawfully, and the authority of the judgment would be no greater or less by making or not making a declaration in the form of the order to the same effect.‘ [12]

In any event, this had no bearing on the costs issue, which was a completely separate matter.

As to costs it was ‘highly unusual‘ for the Supreme Court to entertain an appeal on costs alone [15]. However, the Court of Appeal had decided the issue ‘as a matter of principle‘, treating the Council as the successful party, and in this it fell into an error. For Lord Toulson, the Council was not successful in any sense, it was merely lucky that the case was decided too late for effective relief to be granted against it.

Crucially, the approach in a public law litigation differs from that in private law. Success is not simply a matter of whether a remedy has been granted to the individual claimant –

‘There are also wider public factors to consider.  Public law is not about private rights but about public wrongs…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 [the public sector equality duty], contained a lesson of general application for local authorities regarding the discharge by committee members of the council’s equality duty.’ [16]

So it is essential to understanding the approach to costs in a judicial review claim to note that the value of a successful claim is not just in its benefit to the claimant, but in the wider public good generated by identifying unlawfulness and so promoting future compliance with public law duties. In consequence the proper approach to take to costs is always this –

‘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 why he should not recover his reasonable costs.’ [16]

For the Supreme Court therefore, a pyrrhic victory in judicial review proceedings is still a victory.

Significance

Judicial review has recently been under attack, mostly from politicians who ought to know a lot better. The spurious narrative underlying all such attacks is that judicial review is a vehicle for narrow private interest groups to frustrate the democratic will of the general population.

Aside from its specific importance in establishing the correct treatment of costs in cases where unlawfulness is established but no relief is granted, the Supreme Court’s decision in Hunt is also a gentle riposte to this line of argument, re-affirming as it does the unique public interest character of public law litigation and its wider societal value. For that, it is both timely and to be welcomed.