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Revisiting an adverse permission costs Order: appeal, apply or renew?

In R (OA) v London Borough of Redbridge (unreported), 21st March 2016 the Claimant had challenged the failure of the authority to conduct an assessment of her children pursuant to s.17 of the Children Act 1989.  Having obtained interim relief, an assessment was conducted.  The Claimant wrote to the authority proposing that the claim be withdrawn, with costs.  In the meantime, however, the court refused permission on the basis that the claim had become academic, and awarded the Defendant the costs of preparing its AoS.

The Claimant, unhappy particularly with the adverse costs Order, might have appealed to the Court of Appeal.  However, rather than bother the higher courts, the Claimant applied to renew.  Mrs Leigh-Ann Mulcahy QC, sitting as a Deputy High Court judge, was prepared to accept that the renewal of the "decision" for the purposes of CPR54.12 was broad enough to include the decision on costs, and she awarded the Claimant two thirds of hers.  She also considered, however, that as the initial Order refusing permission and awarding the Defendant its costs had been made on the papers and without an oral hearing, the court would have been prepared to determine an application in writing to vary the Order under the courts case management powers under CPR3.1(7).

The possible use of CPR3.1(7) may help others, perhaps, who find themselves in a procedural sticky spot!


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