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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mendes & Anor v London Borough of Southwark [2009] EWCA Civ 594 (23 March 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/594.html Cite as: [2009] EWCA Civ 594 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MRS JUSTICE DOBBS)
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE MOORE-BICK
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MENDES & ANR |
Appellants |
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- and - |
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LONDON BOROUGH OF SOUTHWARK |
Respondent |
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Mr D Broatch (instructed by Southwark Legal Services) appeared on behalf of the Respondent.
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Crown Copyright ©
Lord Justice Sedley:
"A person who is no longer working shall not cease to be treated as a worker … if –
(a) he is temporarily unable to work as the result of an illness or accident;"
(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if --
…
b) he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as jobseeker with the relevant employment office and --
(i) he was employed for one year or more before becoming unemployed;
(ii) he has been unemployed for no more than six months; or
(iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged;
It was under (ii) or (iii) that the first appellant now qualified.
"Having considered the submissions of both parties it seems to me that there is no good reason for costs to be awarded to either party."
Jurisdiction.
Reasons.
(a) The respondent council asserted that all that it had been told was that the first appellant had resigned from his job. Without an explanation, that did not bring him within Regulation 6(2)(a) of the EEA regulations. Ms Prevatt submits that it was made perfectly clear by the letters of the solicitors instructing her on 24 and 25 April, a full week before the judicial review claim was issued, that the appellant had resigned from his job because of an arm injury. A swift perusal of the correspondence shows that this is undoubtedly right.
(b) The respondent now submits by way of Mr Broatch's skeleton argument that:
"…there was a factual dispute or certainly an issue about the circumstances in which [the first appellant] left his job. If an employee resigns he may well be 'voluntarily unemployed'. There is a difference between: (i) resigning because of a possible injury; (ii) being suspended from work because of injury; (iii) being laid off from work because of an injury; and (iv) being dismissed because of an injury; In cases (ii) and (iii) of course, the contract of employment subsists."
Of course these things are different, and of course the second and third of them do not necessarily bring the contract of employment to an end. But the first, if one omits the mysterious word "possible", does, and that is what the local authority had been told was the case here. It may well be that they were entitled to some time to check whether it was so, but this they had already done: their letter of 23 April recorded that the first appellant's employers had confirmed the reason for his resignation. It cannot possibly follow, therefore, as Mr Broatch goes on to contend that it does, that there continued to be in this situation "a legitimate basis for the s.184 decision-making officer concluding that the appellant was voluntarily unemployed."
(c) For these and the reasons of law touched on earlier in this judgment the respondent council had visibly no answer to the claim for judicial review.
(d) For the reasons I have given, the claim was not issued prematurely. On the contrary, it was issued at the last moment consistent with the solicitors' duty to their clients.
"I cannot confidently conclude that the claimant would have succeeded on its core claim if the matter had proceeded to a final hearing, and, taking account of the need not to discourage reasonable settlements, the fair course is to make no order for costs."
"… when an application for costs is made, a reasonable and proportionate attempt must be made to analyse the situation and determine whether an order for costs is appropriate. I emphasise a reasonable and proportionate attempt, bearing in mind the pressures on the Administrative Court, yet another hard pressed institution. A judge must not be tempted too readily to adopt the fallback position of no order for costs."
"(i) the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.
(ii) it will ordinarily be irrelevant that the Claimant is legally aided;
(iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;
(iv) at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.
(v) in the absence of a good reason to make any other order the fall back is to make no order as to costs.
(vi) the court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage."
Lord Justice Moore-Bick:
Order: Appeal allowed