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P15: Judicial review costs
COSTS AT PERMISSION STAGE
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Permission refused
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- Defendant not usually awarded costs of attending oral permission hearing
"[69] The circumstances in which a claimant may be ordered to pay a defendant's costs of attending a permission hearing were considered by this court in R (Mount Cook Land Limited) v Westminster City Council [2003] EWCA Civ 1346; [2004] 1 PLR 29.
[70] Having considered the history of the relevant provisions in the CPR, Auld LJ said (at [72]):
"Generally - that is, save in exceptional circumstances - costs of and occasioned by such attendance should not be awarded against a claimant."
He continued (at [73]):
"It follows that judges before whom contested permission applications are listed, and in their conduct of them, should discourage long hearings and/or the filing by both parties of voluminous documentary evidence for consideration at them. In short, they should not allow the court to be sucked into lengthy and fully argued oral hearings that transform the process from an inquiry into arguability into that of a rehearsal for, or effectively, an expedited and full hearing of the substantive claim."
[71] In [76], he indicated that "exceptional circumstances" in this context "may consist… of…" (i) the hopelessness of the claim, (ii) persistence in the claim by the claimant after being alerted to its hopeless nature, (iii) the extent to which the court considers the claim is abusive because it had been used for collateral ends and (iv) whether, by as a result of the deployment of full evidence and submissions, the claimant has effectively had the benefit of a full hearing." (R (oao Wilson) v. Prime Minister [2019] EWCA Civ 304, Hikcinbottom, Haddon-Cave LJJJ)
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- Persisting with hopeless arguments after Judge has indicated they are particularly weak on matters of importance to respondent (costs awarded)
"[73] Each case will of course depend on its own facts. In this case, Ouseley J clearly had the factors set out in Mount Cook in mind. He referred to a number of the grounds being "hopeless", and of the Applicants continuing with the oral hearing although Supperstone J had indicated he considered the claim particularly weak. Ouseley J considered, with some force, that the Applicants were inappropriately pursuing what was effectively a political campaign through the courts. In any event, the permission hearing was not a short event. It lasted a full day, with judgment reserved over the intervening weekend. The Applicants' skeleton argument, drafted by two Leading Counsel and three Juniors, occupied 48 pages. Ouseley J heard oral submissions from Leading Counsel for the Respondent, whose skeleton argument (at eight pages) was modest in length. For the Respondent, the issues raised were of great – indeed, constitutional – importance. I do not consider that Ouseley J can possibly be criticised for allowing the Applicants every opportunity in making good their contention that their claims – or some of them – were arguable; or for allowing the Respondent a modest opportunity to respond orally. He was clearly assisted by those submissions on behalf of the Respondent. He was in the best position to assess whether this permission hearing was such as to warrant a costs order against the Applicants.
[74] In my view, Ouseley J approached the issue of costs correctly, and the costs order he made was well within the margin of proper discretion and judgment left to judges in matters of costs. I do not consider that the contrary is arguable." (R (oao Wilson) v. Prime Minister [2019] EWCA Civ 304, Hikcinbottom, Haddon-Cave LJJJ)
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COSTS FOLLOWING PERMISSION STAGE
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Costs in a case that is conceded or becomes academic
"[41] It was further submitted for the appellant that the judge failed to apply the principles or guidance established by this court in R(M) v Croydon concerning the costs of judicial review proceedings which are settled or become unnecessary as a result of action by the public authority, without a substantive hearing of the merits. At [60], Lord Neuberger MR said:
"Thus in Administrative Court cases just as in other civil litigation, particularly where a claim has been settled, there is, in my view, a sharp difference between (i) a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement, and (ii) a case where he has only succeeded in part following a contested hearing, or pursuant to a settlement, and (iii) a case where there has been some compromise which does not actually reflect the claimant's claims."
[42] As regards cases in the second category, Lord Neuberger said at [62] that "where the parties have settled the claimant's substantive claims on the basis that he succeeds in part, but only in part, there is often much to be said for concluding that there is no order for costs". In cases in the first category, the applicant would normally be awarded its costs.
[43] The appellant contended that the present case fell in the first category. Its purpose in bringing the proceedings was to secure the withdrawal of the notices, which it achieved. As against that, it may be said that the notices were withdrawn on the narrow point about their service outside the statutory time limit and without reference to or acceptance of the Human Rights grounds, which Mr Venables told us were intended to be "a full frontal attack on the follower notice system which, if accepted, would render the system a dead letter".
[44] It is unnecessary to resolve this point because, even if the appellant were correct as regards the categorisation of its claim for the purposes of R(M) v Croydon, it does not affect the result in this case, where the proceedings were brought prematurely and would have been unnecessary if the appellant had waited for HMRC's response to its representations. In most cases, and certainly in this case, it is a factor which pre-empts any consideration of the applicant's degree of success." (R (oao M Sport Limited) v. HMRC [2021] EWCA Civ 561, David Richards LJ)
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