The Administrative Court’s summer recess presents a welcome opportunity for public law practitioners to consolidate recent case law developments in judicial review.
A short but interesting judgment concerning costs and the court’s assessment of success in judicial review proceedings was the Court of Appeal’s (CoA) decision in Rashid v London Borough of Merton  EWCA Civ 622, handed down on 10 May 2016. The case may serve to focus minds both on the potential effects of interim orders on costs and the importance of a robust response to an interim order application. The perceived “concession” of the relief secured by an interim order, even where the respondent indicated that it would later resist the order, had significant costs consequences in this case.
The appellant (R, the claimant in the judicial review proceedings below) appealed the High Court’s decision to make no order as to costs in his application for judicial review against the respondent (M, who was the defendant in the judicial review proceedings).
Proceedings in the High Court
After issuing the judicial review claim, R applied for and was granted an interim order (IO) by the High Court, which required M to make payments to R. The CoA considered that the IO was granted “effectively on a without notice basis”. The IO afforded R the relief he sought in the judicial review claim. M did not make a formal application to discharge the IO, despite being invited to do so by the High Court in the terms of the order. Instead, M filed an acknowledgement of service in which it requested a rolled up hearing to be convened within four weeks at which it would resist both the IO and the substantive claim. Four weeks passed and the High Court did not consider M’s request.
The High Court did, eventually, agree to adjourn the case to a rolled up hearing but did not indicate that this would be convened on an expedited basis. Further, in the absence of an application by M to discharge the IO, the High Court proceeded to renew the IO. M subsequently made an offer to R pursuant to Civil Procedure Rule 36 to maintain the payments secured by the IO, which R accepted. Events transpired to render the claim academic, and the case then settled on the basis that costs would fall to be considered by the High Court. The High Court decided to make no order as to costs, which R appealed.
Judgment of the Court of Appeal
The CoA determined that M had “acquiesced” to the IO and held that the enduring nature of the payments the IO had secured for R made him the successful party, notwithstanding that:
- The High Court made no decision on the merits of R’s substantive claim.
- M indicated in its summary grounds that it would apply for discharge of the IO at a rolled up hearing.
The factors which led the CoA to consider that M had (fatally) conceded the relief sought by R were that:
- M did not make an application to discharge the IO and, further, did not apply for an expedited hearing to secure its discharge.
- M did not follow up with the court on its request for a rolled up hearing to be convened within four weeks of filing its acknowledgement of service, despite it being “abundantly clear” that this would not take place within the timeframe.
- M’s CPR 36 offer to maintain the payments to R amounted to acceptance that the IO should remain in place.
The CoA did not accept R’s argument that M’s concession amounted to an acceptance of the merits of R’s substantive claim and that this made R the successful party. Rather, M’s perceived concession to funding R on an interim basis, in the manner which R’s claim sought to secure, was critical.
The CoA upheld R’s appeal and awarded him his costs of the judicial review claim.
The case presents an important illustration of how interim relief can affect costs awards in judicial review proceedings, and how the court will assess a party’s relative success. It also serves as a warning of the costs consequences of failing to formally apply for the discharge of an interim order.
Costs and “success in action or by concession”
As in other proceedings, the general rule is that costs follow the case in judicial review proceedings (CPR 44.2). The courts have traditionally exercised considerable discretion in deciding what costs order to make, however, and this will depend on the facts of the case.
The court will have regard, in particular, to the relative success of the parties. Success can, in some circumstances, be difficult to define. In Rashid, the CoA applied the established approach set out by the court in M v London Borough of Croydon  EWCA Civ 595 (see Legal update, Court of Appeal confirms the proper approach to awarding costs in judicial review). The CoA decided that the relief R obtained meant that it was not dealing with a “category (iii) case”, namely one where:
“the court is often unable to gauge whether there is a successful party in any respect, and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs”
(M v Croydon, paragraph 63).
The CoA in Rashid did not treat R’s securing of the payments by the IO as the determining factor in its decision on costs, however. The critical factor was M’s perceived acquiescence to the IO by way of its failure to apply for its discharge and the later CPR 36 offer. Citing Re (Naureen and another) v Salford City Council  EWCA Civ 1795, Arden LJ stated that success for the purposes of a costs order is “success in action or by concession”. In Naureen, the defendant had unsuccessfully contested an interim relief application. The court in that case did not consider that the claimant’s obtaining of interim relief should support its claim for costs as the defendant had not conceded the relief. The court stated that if the defendant had conceded the relief to the claimant without admitting liability, then it would have been difficult for it to resist an order for costs (see Legal update, No error in refusal to award costs following settlement of claim for judicial review (Court of Appeal)). In Rashid, M did not formally contest the IO. Rather, its failure to do so amounted to a concession of the relief secured by the IO.
Responding to interim orders
In order to reduce the risk of losing on costs by concession, the following principles derived from Rashid may be useful guidance to public law practitioners who are faced with an adverse IO:
- If a party intends to resist an IO, it should do so by way of a formal application and not by indicating future intent.
- Where an IO application is made without notice, the respondent may serve to protect its position on costs by applying for the discharge of an IO even if its application proves unsuccessful.
- If a party wishes to resist an IO at a rolled up hearing, it should consider making a formal application for that hearing to be convened on an expedited basis.
- Any request for an expedited hearing should be followed up with the court if it appears that the request will not be considered within the timeframe requested.
These points may become particularly important where:
- The relief sought or secured by an IO is equivalent to that sought by the substantive claim.
- There is a risk of a judicial review claim becoming academic and before any application to discharge an IO is considered by the court.