The Court of Appeal dismissed Clare County Council’s appeal over costs in a judicial review brought by John and Caroline Sherlock and their nine children concerning their housing needs. It also allowed the family’s cross-appeal, replacing limits imposed by the High Court with an award of costs simpliciter, including any reserved costs.
The appeal concerned costs only. The family had been provided with a cottage near Lahinch in 2014. They said it was no longer suitable for their needs, particularly after the birth of their youngest children, twins, in 2017. The Council disputed aspects of the history and suitability of the accommodation.
In June 2017, the family’s solicitors wrote to the Council seeking, among other things, an assessment of the family’s housing needs. The letter received no response. The family then brought judicial review proceedings seeking a range of reliefs, principally an order requiring an assessment. At the appeal hearing, their counsel accepted that they were not entitled to an order compelling the Council to provide accommodation.
The High Court hearing was due to begin in October 2019. In September, the Council contacted the family about taking part in an assessment. It took place on 3 October. The next day, the Council delivered a letter saying it anticipated that a five-bedroom house in north Clare would shortly become available and might suit the family, and asking them to complete a transfer application. The family agreed to sign the form and sought their costs, arguing that the assessment had achieved the main objective of their proceedings.
The Council argued that the case was not moot and that the housing developments were coincidental. The High Court found that the Council’s offer had rendered the proceedings moot and awarded costs to the family, but limited the award to a two-day hearing and one counsel, excluding costs for the statement of grounds, legal submissions and a motion concerning cross-examination.
The Court of Appeal upheld the finding of mootness. It said the Council had to provide evidence if it wished to show that an external change in circumstances, rather than a response to the proceedings, explained the assessment. The court found the timing significant: the assessment occurred three working days before the trial, and its result was delivered by hand the following day. The Council’s unilateral act of carrying out the assessment had addressed the principal objective of the case and rendered it moot.
On the cross-appeal, the court held that the High Court should not have limited costs based on the view that cross-examination was unnecessary before the motion had been considered. The family had also not been given an opportunity to address the proposed limits. The Court of Appeal therefore substituted an award of costs simpliciter, including reserved costs. Its provisional view was that the family should receive the costs of the appeal; it allowed the Council 28 days to make written submissions seeking a different order, with the family given a similar period to respond.