No more fallback position

The Court of Appeal handed down a hugely significant ruling last year in relation to the award of costs in judicial review proceedings. Josephine Norris examines the judgment.

In R (Bahta) and others v Secretary of State for the Home Department [2011] EWCA Civ 895 the Court of Appeal was asked to consider appeals against decisions by High Court judges not to award the appellants costs in their respective applications for judicial review of immigration decisions. The appellants had been seeking either permission to work in the United Kingdom or indefinite leave to remain. The Secretary of State had delayed responding to their applications pending a Supreme Court decision in ZO and Others v Secretary of State for the Home Department [2010] UKSC36; [2010] 1 W.L.R. 1948.

Eventually the appellants had been granted what they sought “for purely pragmatic reasons” and their applications had been withdrawn by consent. The consent orders stated that costs would be determined by a judge on the basis of written submissions. In refusing costs, each judge had either referred to or clearly had in mind the decision of Scott Baker J in R (Boxall) v Waltham Forest LBC (2001) 4 CCL Rep 258 QBD (Admin) and relied on the principle that it had not been “plain and obvious” at the time of issuing proceedings, that they would succeed.

Two issues arose on appeal:

(i) Whether the right of appeal was excluded by the consent orders.

(ii) The application of the Boxall principles in light of the recommendations in 2009 of Jackson L.J. in the Review of Civil Litigation Costs: Final Report (the Jackson Report);

Lord Justice Pill gave the lead judgment with which both Sullivan LJ and Hedley J concurred.

As to the jurisdiction point, it was submitted on behalf of the Respondent that the effect of the consent order stating that costs would be determined by a judge on the basis of written submissions was to preclude further recourse to the Courts once that decision had been reached. This was rejected by Pill LJ who held that “Plain words would be required in a consent order if the parties intended to exclude the right of appeal to this court granted in section 16 of the 1981 Act.” Accordingly the Court of Appeal did have jurisdiction to hear the appeals.

As to the application of the Boxall principles, the appellants relied on the fact that the case had been decided before the implications of the CPR and PAPs had emerged and further, that following the Jackson Report, there had been a change of landscape and culture.

In particular, in his Final Report Jackson LJ recommended, at paragraphs 4.12 and 4.13: “The Boxall approach made eminently good sense at the time that case was decided. However, now that there is an extremely sensible protocol in place for judicial review claims, I consider the Boxall approach needs modification, essentially for the reasons which have been urged upon me during Phase 2.

"..... in any judicial review case where the claimant has complied with the protocol, if the defendant settles the claim after (rather than before) issue by conceding any material part of the relief sought, then the normal order should be that the defendant pays the claimant’s costs. A rule along these lines would not prevent the court from making a different order in those cases where particular circumstances warranted a different costs order.”

The intervener supported the appellants. The interested parties made written submissions supporting the application of the Jackson Report and noted that compliance with the PAP is a “highly pertinent factor” in favour of the presumption recommended by Jackson LJ. It was submitted, for the Secretary of State, that in each of the decisions challenged, the judge’s decision was made within the bounds of the broad discretion in costs available to the judge and should not be disturbed.

Pill LJ held that the appellants were entitled to the relief claimed and had to commence proceedings to obtain it. The respondent was not entitled to deny the appellants relief pending the decision of the Supreme Court. Applicants in the position of the appellants were entitled to relief on the basis of the decision of the Court of Appeal. That was the law unless and until a higher court, or Parliament, ruled otherwise. In the absence of a stay on the Court of Appeal decision, the respondent could not require the appellants to wait for relief until the Supreme Court had ruled. Pill LJ rejected the Secretary of State’s submission that relief was granted for reasons unconnected to the decision in ZO.

As to the timing of assessment, it is the date at which the application for costs is determined that is the relevant date for assessment. However, a consideration of what order should be made requires consideration of the whole sequence of events and the conduct of the parties throughout. That includes the conduct of the parties after the defendant has told the claimant that relief is being offered and what the relief is.

Pill LJ set out a number of conclusions at paragraphs 52 – 71 of his Judgment. In summary:

Once an adequately formulated letter of claim is received by the defendant, the defendant must address his mind to it. In the absence of an adequate response, a claimant is entitled to proceed to institute proceedings. If the claimant then obtains the relief sought, or substantially similar relief, the claimant can expect to be awarded costs against the defendant. Inherent in that approach, is the need for a defendant to follow the Practice Direction (Pre-Action Conduct) or any relevant Pre-Action Protocol, an aspect of the conduct of the parties specifically identified in CPR r.44.3(5). The procedure is not inflexible; an extension of time may be sought, if supported by reasons.

In the case of publicly funded parties, it is not a good reason to decline to make an order for costs against a defendant that those acting for the publicly funded claimant will obtain some remuneration even if no order for costs is made against the defendant. A culture in which an order that there be no order as to costs in a case involving a public body as defendant, because a costs order would only transfer funds from one public body to another, is no longer acceptable.

What must be recognised is both the starting point in the CPR that a successful claimant is entitled to his costs and also the importance of complying with Pre-Action Protocols.

When relief is granted, the defendant bears the burden of justifying a departure from the general rule that the unsuccessful party will be ordered to pay the costs of the successful party and that the burden is likely to be a heavy one if the claimant has, and the defendant has not, complied with the Pre-Action Protocol.

The circumstances of each case require analysis if injustice is to be avoided and judges should not be too easily deterred.

Where relief is granted by consent, CPR r.54.18 provides a procedure whereby the court may decide the claim for judicial review without a hearing. That procedure should be followed wherever possible.

There is no justification for resorting to the fall back position in Boxall in these cases.

Comment

This decision, as acknowledged by the Court of Appeal itself, has far reaching implications and confirms that the Boxall fall-back position should no longer be applied in the context of judicial review. It further illustrates that the Courts are attributing weight to the recommendations in the Jackson Report and that compliance with the PAP will be highly significant in the context of costs. The jurisdictional issue is a salient reminder that the Court of Appeal will not easily find its jurisdiction has been excluded and clear and careful drafting would be required to achieve this end.

Josephine Norris is a barrister at 39 Essex Street. She can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared in the set’s Public Law Newsletter.