Union seeks permission to appeal from Supreme Court in dispute over judicial reviews and costs

The union took action against the Home Office in 2024 to challenge the legality of the Conservative government’s Strikes (Minimum Service Levels) Act, which required minimum levels of service to be provided during public sector strikes.

The PCS argued the Act had unfairly restricted the right to strike and was incompatible with the right to participate in trade union activity under Article 11 of the European Convention on Human Rights.

But following that year’s general election the incoming Labour government said it would repeal the legislation and the Government Legal Department told the PCS that its judicial review claim was now academic and should be discontinued.

But the union said it should be awarded costs because its claim had been successful.

This was not accepted by the Home Secretary, who argued no costs order should be made as the claim had not succeeded but merely become academic for political reasons.

HHJ Jarman, in the High Court, accepted the Home Secretary’s argument and made no costs order, and the Court of Appeal subsequently held he had been entitled to reach this conclusion, despite noting the PCS’s case was “quite close to the borderline”.

39 Essex Chambers’ barristers Katherine Apps KC and Jake Thorold have been instructed by the PCS to take the matter to the  Supreme Court on three grounds.

The first is that the Court of Appeal erred in creating a new costs test for claimants in judicial review cases where a defendant provides the relief sought but contends that it has done so for “political reasons”, namely that a claimant must demonstrate that it is “tolerably clear” that they would have been likely to succeed at a trial.

Its second ground is that the Court of Appeal erred in putting the evidential burden on PCS to demonstrate why the Home Secretary made the decision that rendered its claim academic, and the third that it also erred in concluding that HHJ Jarman’s one sentence of reasoning was sufficient.

Apps and Thorold said that if the Supreme Court gives permission to bring the case “this appeal will be of considerable significance [because] in particular, the Supreme Court will be required to consider the correct approach to costs in circumstances where a judicial review is said to have become academic for political reasons – including consideration of the Court of Appeal’s ‘much-followed judgment’ in M v Croydon LBC [2012] 1 WLR 2607".

They added that, more broadly, the case raised important questions regarding the continuity of government, and in particular the extent to which new administrations can escape costs liability for the decisions of previous administrations by citing political justifications for changing course.

Mark Smulian