Judicial Review (Costs)

Lord Justice Sedley, at para 21, gives guidance as to the recoverability of pre-permission costs by a successful defendant following dismissal of the substantive judicial review claim.

(i) 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.

(ii) 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.

(iii) 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.

(iv) 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 principles laid down in R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346, [2003] All ER (D) 222 (Oct).

Sir Anthony Clarke MR added (at paras 29 and 30) that costs should ordinarily follow the event and that it is for the claimant who has lost to show that some different approach should be adopted on the facts of a particular case.

It will be for the successful defendant to justify preparation costs. That is because he must show that it was reasonable and proportionate to incur such costs. If the claimant wishes to submit that any or all the costs which would be otherwise recoverable should not be recovered, however reasonable and proportionate they were, it is for him to persuade the court to that effect.