On appeal from:  EWCA Civ 1320
The Supreme Court unanimously allowed the appeal in relation to costs but not in relation to declaratory relief.
The appellant has learning difficulties and behavioural problems such that the respondent Council is under a duty to secure access for him to educational and recreational leisure-time activities. The High Court had rejected his judicial review challenge to the Council’s decision to cut its funding to the Youth Services budget for the year 2012/13. The Court of Appeal had held that the Council’s decision had indeed been unlawful (a failure of consultation and the Public Sector Equality Duty) but that it was, by then, too late to quash that decision. That, so the Court of Appeal said, meant that the appeal failed and the Claimant should pay (half of) the Defendant’s costs.
The Supreme Court held that, although the court should generally make a declaration where it had found illegality, the Court of Appeal had not erred in not doing so here: the judgment of the Court of Appeal itself contained a ruling that the Council acted unlawfully and the authority of its judgment would be no greater or less by making or not making a declaration in the form of the order to the same effect.
But the Supreme Court held that the Court of Appeal had been wrong to treat the Council as the successful party for costs purposes: 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. That is in part because public law is not about private rights but about public wrongs. The Court of Appeal’s costs order should be set aside and substituted with an order that the appellant recover two thirds of his costs of the entire proceedings.
David Wolfe QC and Aileen McColgan were involved in this case.