E-News, Tuesday 27th November
Pre-Permission costs in Judicial Review
The question before the Court of Appeal was whether, as a matter of law or
practice, an order for costs made in favour of a successful respondent to judicial
review proceedings included costs properly incurred prior to the grant of permission
unless they were expressly excluded.
The citation for the judgment is [2007] EWCA Civ 1166, [2007]47 EG 168 (CS),
The Times, November 21st:
The Queen (on the application of Davey) v Aylesbury Vale
Summary
1.
The Court of Appeal answered ‘yes’ to the above question. It confirmed that
the normal rule is that costs follow the event and that still applies in Judicial
Review proceedings. It set out general guidelines, building on the approach
adopted by the courts to date, as to determination of costs awards following a
substantive hearing.
2.
Sedley LJ gave the leading judgment which contains the guidelines which are,
though, to be read as subject to general points/caveats expressed by the
Master of the Rolls.
The existing rules
3.
Two rules of costs practice elucidated by the Court of Appeal in R (Mount Cook
Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 have developed
under the CPR:
(1)
An unsuccessful applicant for permission must expect to pay the
defendant’s costs of preparing the acknowledgement of service.
(2)
A defendant who chooses to attend and oppose an oral application for
permission cannot ordinarily expect to recover its costs of so doing
even if permission is refused.
4.
The Practice Statement (Judicial Review: Costs) 2004 1 WLR 1760 deems the
pre-permission costs, if the order is silent on them, to be costs in the case.
5.
Otherwise, the point of principle was not specifically addressed by the existing
rules and a satisfactory ‘general principle’ was needed for the future which
Sedley LJ based upon: ‘the calibrated exercise of the court’s power – a power
which is in effect an obligation – to adapt its provision for costs to the conduct
and outcome of the case before it’ (§20).
General approach
6.
7.
Sir Anthony Clarke MR re-visited some specific rules governing the exercise of
the court’s power as to costs (§27-28):
(1)
Orders in the form “the costs of the claim” mean the “costs of and
incidental to the claim”, including costs incurred before the issue of
proceedings: s.51 Supreme Courts Act 1981.
(2)
Any successful party must show that every item of costs was
reasonably incurred and both reasonable and proportionate in
amount: CPR 44.4(1) and (2).
(3)
The trial judge can restrict the amounts to be recovered (as he had
done in this case by percentage value award and exclusion of specific
items).
The Master of the Rolls, with the agreement of Sedley LJ, then restated the
fundamental rule underpinning costs awards in Judicial Review proceedings
(§29) (emphasis added):
Costs should ordinarily follow the event and [..] it is for the
claimant who has lost to show that some different approach
should be adopted on the facts of the particular case. That
principle is supported by the decision and reasoning of Dyson J in R v
Lord Chancellor ex p Child Poverty Action Group [1999] 1 WLR 347 at
355H – 356E. That passage concludes as follows:
"…. In considering whether, and in what circumstances, there should
be a departure from the basic rule that costs follow the event in public
interest challenge cases, in my view it is important to have in mind the
rationale for that basic rule, and that it is for the applicants to show
why, exceptionally, there should be a departure from it."
The basic rule he refers to is, as he explained at page 356C, that costs
follow the event in public law cases, as in others, because, where an
unsuccessful claim is brought against a public body, it imposes costs
on that body which have to be met out of money diverted from the
funds available to fulfil its primary public functions.
Guidelines
8.
Sedley LJ set out the following guidelines for the exercise of that power (§21)
– which have to be read subject to the general points made above:
“(1) On the conclusion of full judicial review proceedings in a defendant's
favour, the nature and purpose of the particular claim is relevant to the
exercise of the judge's discretion as to costs. In contrast to a judicial
review claim brought wholly or mainly for commercial or proprietary
reasons, a claim brought partly or wholly in the public interest, albeit
unsuccessful, may properly result in a restricted or no order for costs.
(2) If awarding costs against the claimant, the judge should consider
whether they are to include preparation costs in addition to
acknowledgment costs. It will be for the defendant to justify these. There
may be no sufficient reason why such costs, if incurred, should be
recoverable.
(3) It is highly desirable that these questions should be dealt with by the
trial judge and left to the costs judge only in relation to the
reasonableness of individual items.
(4) If at the conclusion of such proceedings the judge makes an
undifferentiated order for costs in a defendant's favour
(a) the order has to be regarded as including any reasonably
incurred preparation costs; but
(b) the 2004 Practice Statement should be read so as to exclude
any costs of opposing the grant of permission in open court,
which should be dealt with on the Mount Cook principles.”
The purpose of the permission hearing/length of summary grounds
9.
In the course of judgment, their lordships addressed the sufficiency of
summary grounds. Sedley LJ recalled the approach of the House of Lords to
leave in National Federation of the Self-Employed [1982] AC 617, 643-4
(§11):
"…. The whole purpose of requiring that leave should first be obtained
to make the application for judicial review would be defeated if the
court were to go into the matter in any depth at that stage. If, on a
quick perusal of the material then available, the court thinks that it
discloses what might on further consideration turn out to be an
arguable case in favour of granting to the applicant the relief claimed,
it ought, in the exercise of a judicial discretion, to give him leave to
apply for that relief. …"
10.
It ought not ordinarily be necessary for a public body on which a claim for
judicial review is served to do much additional work before its claim on the
basis that it should already know what it has done and why. Grounds of
opposition should be expressed in ‘short form’ and the authority should ‘wait
to see’ if permission is granted (Sedley at §13).
11.
On the issue of summary grounds, Sir Anthony Clarke MR, recalled the
approach of Carnwath LJ in Ewing v Office of the Deputy Prime Minister
[2005] EWCA Civ 1583 in stating that the purpose of the summary is not to
provide the basis of full argument of the substantive merits ‘but rather to
assist the judge on whether to grant permission, and if so, on what terms’
(Clarke at §32).
James Findlay appeared with Jenny Oscroft for Aylesbury Vale