Nada Salahadeen Salih v Westminster City Council

Costs Judge Nagalingam:

1. This is an appeal from a decision of a costs officer, Costs Officer Piggott, which has narrowed in terms of the issues I am invited to deal with in respect of the scope of a costs order concerning the issue of pre-appeal costs and expert evidence related to the Appellant’s provision of temporary accommodation to the Respondent as a homeless person pursuant to s.193 of the Housing Act 1996 .

2. The scope of the order for costs primarily concerns costs incurred before 29 September 2022. With regards to the expert evidence, I have already ruled this morning that I considered the obtaining of expert evidence to have been within the scope of the directions and also explained why.

3. In terms of any application for evidence, that application would have been submitted but ultimately heard at the start of any appeal. However, I did indicate that I would still consider the reasonableness of obtaining expert evidence.

4. In no particular order amongst the issues I have been asked to consider are issues concerning Costs Officer Piggott in particular, and the manner in which he has conducted similar assessments.

5. Both parties referenced other similar cases and a similar approach by this particular costs officer, and have indicated that a steer from the courts, or certainly from a Costs Judge, would be welcome in so far as there are apparently many other cases capable of being impacted.

6. Therefore I do think it is appropriate that I also consider whether Costs Officer Piggott has fallen into any error in terms of his approach.

7. The starting point in my view is the fact that the order for costs in this matter arises from a consent order, i.e., it is the terms that the parties themselves agreed.

8. If the council wanted an order in the restrictive terms they now seek, it strikes me that there would have been ample opportunity to negotiate such a term at the stage the consent order was concluded and signed. I find it unbelievable that a costs order has been agreed by consent, and that nearly two years later, the parties are arguing over what the scope of that order is.

9. With regards to the reference to Khan v London Borough of Waltham Forest , which is effectively treated as an unreported case, albeit I have been furnished with a copy of the notice of provisional assessment, I remind myself this is a case which was brought to my attention by the paying party and naturally, having had my attention drawn to it, I was inclined to consider what the relevant costs order was in that case, and what the wording of that costs order was.

10. In that particular matter, the order for costs was again agreed by consent. There, the London Borough of Waltham, upon dismissing a housing appeal, consented to terms that the respondent do pay the appellant’s costs of the appeal to be assessed by way of detailed assessment if not agreed, i.e., there was no “of and incidental to” provision in that order.

11. The order was thus the respondent do pay the costs of the appeal to be assessed. If one then contrasts that with the disputed order in the present case, there is a clear distinction in that the respondent shall pay the appellant’s reasonable cost of and incidental to this appeal to be assessed, if not agreed.

12. In so far as the paying party has elected to draw my attention to the case of Khan , I am left to question, indeed as Mr Sachdeva QC invited, what exactly are the costs ‘of and incidental to’ if they are not the costs of the appeal? Or in this case, indeed, in relation to the pre-action costs.

13. As to Mr Munro’s examples of orders that might be given in the course of an appeal, giving examples of orders for costs above and below versus costs of and occasioned by, that in my view, invites an equivalence between “appeal” – i.e. an appeal from a lower court, with something that happens to be called ‘an appeal’, but in reality is asking the Court to step in and rule on a dispute between the parties.

14. I think one needs to recall Ms Salih in all of this. Her originating cause of action was for suitable accommodation. That has never changed throughout all of the procedures that followed thereafter, whether that be procedures with the council, or thereafter procedures involving the Court.

15. It was only once Ms Salih had exhausted every non-procedural avenue; did she get to the point of needing the involvement of the Court. To then deny recovery of any costs prior to that stage would be to ignore the fact that throughout all types of disputes, this type of scenario is very common.

16. It is not a case of having to lose first to get to the next stage in order to then recover costs. For example, this Court is well versed in making Part 8 costs only orders, where a party has been successful pre-action and thereafter seeks to recover their costs before the action. In such circumstances, a costs order is necessary because there has been no action, no proceedings issued, there is no costs order without the Part 8 claim.

17. Where this Court does not see those Part 8 claims is where the matter has been resolved pre-action, and the successful party is happy with that and does not seek a cost recovery, or costs are agreed.

18. In terms of the criticisms of Costs Office Piggott, I do not accept they are fair. I consider that Costs Officer Piggott was likely surprised by the argument raised as being novel and unsupported by authority. In any event, Costs Officer Piggott’s marked up bill at least infers, in my view, that he did consider scope and indeed how could he have awarded the costs, which are now subject to this challenge, if they were not concluded to be within scope?

19. In my view, and notwithstanding the large body of case law I have been taken to by leading and junior counsel, all such decisions confirm what this Court has always known. The costs ‘of and incidental to’ are broad in scope, and thereafter, rather than providing for an absolute cutoff point, they rather permit a discretion as to what connected costs with the principal dispute may be recoverable.

20. In this action, the principal dispute is an appeal, but it is not an appeal from a court decision, but rather an appeal from a housing decision of a council which had a material impact on a social housing tenant who was otherwise to be made homeless. The appeal in this sense, as I indicated earlier, is a term of art which in my view then involved the Court in proceedings where a dispute between the parties has been incapable of resolution. This judgment necessarily therefore draws in the costs consequences of the council’s procedures when determining housing suitability appeals.

21. Taking all of those factors into account, I consider that as a matter of principle, the costs in the bill at Schedule 1, which predate 29 September 2022, are within the scope of the order that the parties consented to, and I reiterate that if the paying party did not intend for that to be in scope, then they ought to have considered that more carefully before they signed up to a consent order in such broad terms.

22. With regards to the expert’s fees, I have already indicated my view that the directions permitted the obtaining of evidence in support, which would include expert evidence.

23. Ms Salih’s grounds included medical grounds, not just the failure to issue the “minded-to letter”. In those circumstances, I consider that it was reasonable to obtain expert evidence, and the fact that evidence was not served is simply a consequence of the dispute having been resolved after the expert was instructed but before his report was finalised.

24. The test is whether the costs were reasonably incurred at the time , and in my view, the instruction of the expert and the subsequent incurrence of a fee by that expert was reasonably incurred at the time.

25. Ms Salih could not have predicted or known how the council would react. Indeed, it was reasonable, in my view, for her to predict or assume that they would continue to fight their case given the failures that she had experienced up until the point of their apparent capitulation.

26. In my view it was reasonable to obtain the report, it was within scope, and it was reasonable given the crux of the issues in terms of health and suitability. In that regard. I am not minded to change any of the decisions of Costs Officer Piggott in this assessment.