P15: Judicial review costs

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 As against that, it may be said that the notices were withdrawn on the narrow point about their service outside the statutory time limit and without reference to or acceptance of the Human Rights grounds, which Mr Venables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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