The Supreme Court has, unusually, recently heard, and now delivered judgment on, an appeal concerning costs in statutory appeal and judicial review cases. It is unusual for costs issues to be considered significant enough to merit consideration by the Supreme Court and, not least given the outcome of the appeal – and of course it is easy to be wise after the event – it is something of a surprise that permission to appeal was granted in the first place.
The issue in the case was simply stated: “This is an appeal against an order for costs. The context is an application for statutory review of a planning decision in which the claimant was refused permission to proceed. The question is whether the Court of Appeal erred in law in upholding as a practice that, in the context of such a refusal of permission, where two defendants and an interested party each incurred expense in preparing a separate acknowledgement of service and summary grounds for contesting the claim, each had a prima facie entitlement to its costs”. The decision of the Supreme Court (which recognised that the issue equally arose in judicial review cases) was that the Court of Appeal had not ‘erred in law’ and that there was such an entitlement.
The consequence of this decision is that an interested party’s ability to recover costs in judicial review cases will vary according to the stage of the proceedings:
(a) as confirmed in the CPRE case, where permission is refused the costs of preparing the acknowledgment of service and summary grounds can be recovered; but,
(b) if permission is considered at an oral hearing and refused, an interested party (and also a defendant) cannot normally recover the costs of preparing for and attending the oral hearing; and,
(c) if the case goes to trial and the claimant loses, an interested party will not be able to recover the costs of the trial hearing unless she can show that there was a separate issue in the claim on which she was entitled to be heard or on which she had an interest which required separate representation from the defendant.
Although the decision in CPRE case is a helpful one for interested parties, albeit it has simply confirmed what was already an established approach of the lower Courts, it will still remain open for claimants to argue that, despite the prima facie entitlement to costs, the amount of costs recoverable should be limited or even minimal. At the Court of Appeal stage of the CPRE case Lord Justice Coulson had made it clear that an interested party could only recover costs of preparing the acknowledgment of service and summary grounds to the extent that the costs were reasonable and proportionate; and that in assessing this, it would be relevant to consider the extent to which the interested party had distinct issues or interests in the claim. Thus “…where a judge has two sets of summary grounds of dispute, he or she will consider the utility of each and the extent to which one defendant should have anticipated the points raised by another, so as to make proportionate costs orders”.
Further Information
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About the Authors
Michael Tyler is a Partner in our Costs & Litigation Management team. He has conducted costs proceedings at first instance and on appeal in the High Court and Supreme Court Privy Council. Michael is also a qualified legal project practitioner.
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