Costs Against Tribunal

S v Dudley Metropolitan BC and Another (QBD NLJ 17 December)

The Special Educational Needs Tribunal committed a gross error in preferring delegated legislation over the express provisions of a statute. When its decision was appealed and it had been advised not to oppose the appeal, the tribunal should have consented to the appeal being allowed. Had it done so, it would have met the overriding objective of the Civil Procedure Rules of saving expense and dealing with the case in a way which was proportionate to the importance of the case and ensuring that the case did not take up an inappropriate share of the court’s resources as provided by CPR 1.1(2)(b), (c) and (e). However, there was no flagrant disregard of the principles of justice and although the conduct of the tribunal could be categorised as ‘surprising’, it fell well short of the sort of perversity which could be seen to be the threshold for a costs order to be made against justices or tribunals. Of greater concern was what had occurred after the appeal had been brought. A reasonable tribunal would have asked itself whether the delegated legislation was indeed binding as it had assumed that it was. It would also have asked itself the questions which the provisions of the CPR should have prompted it to ask. It did neither of these things. Even so, its conduct fell just short of meeting the stringent criteria which the cases showed had to be met before a tribunal would be ordered to pay costs as a result of an incorrect decision on a point of law and its approach to elementary principles of justice.