26 July 2011
In a decision that represents a seismic shift in the costs rules in judicial review, the Court of Appeal has delivered Judgment in the case of Bahta & Ors-v-Secretary of State for the Home Department.
The effect of the judgment is to reverse the presently accepted approach to awarding costs in cases where a defendant public body concedes a claim (either expressly or impliedly) before the case comes to trial.
The Court of Appeal has now made it clear that where a defendant concedes relief in a claim, then the presumption will be that the defendant public authority must pay the claimant’s costs. Where the claimant has complied with the pre-action protocol for judicial review the burden on the defendant to displace this presumption will be an especially onerous one (see paragraph 65).
Previously, the default position adopted by the Courts, following the lead case of Boxall, was to make no order for costs in such cases unless it was “plain and obvious” that the Claimant would have gone on to win – in practice often an insurmountable hurdle for claimants.
The practical effect of the Boxall rules was that public authorities often took a “wait and see” approach, declining to address allegations of wrong-doing and illegality when first alerted to them and forcing claimant’s to issue proceedings unnecessarily, safe in the knowledge that they could then change their minds and escape without any sanction in costs.
As Lord Justice Pill put it:
What is not acceptable is a state of mind in which the issues are not addressed by a defendant once an adequately formulated letter of claim is received by the defendant. In the absence of an adequate response, a claimant is entitled to proceed to institute proceedings. If the claimant then obtains the relief sought, or substantially similar relief, the claimant can expect to be awarded costs against the defendant.
Leigh Day & Co represented the Public Law Project (PLP), an access to justice charity, who intervened in the appeal. PLP have been campaigning on the issue for a number of years. This was an important issue for PLP because the former costs rules had a serious deterrent effect the ability of individuals to enforce their rights against public authorities.
PLP had already been successful in persuading Lord Justice Jackson of need for reform of the costs rules. In his Review of Civil Litigation Costs, Jackson LJ expressly recommended the reform of the Boxall rules. However, this recommendation was not adopted by the Government when it accepted the majority of his recommendations. Fortunately, this decision by the Court of Appeal finally resolves the issue for the foreseeable future.
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