Although the general rule in relation to the award of costs in judicial review is, as in other proceedings, that costs follow the case, the courts traditionally exercise a considerable discretion and may take into account the conduct of the parties (CPR 44.2). In Taylor v Honiton Town Council  EWHC 101, the court was required to determine costs following an application by the claimant councillor for judicial review of the town council’s decision to impose sanctions upon him for breach of its code of conduct in accordance with the statutory regime contained in the Localism Act 2011 (LA 2011).
Substantive judicial review claim
In relation to the substantive judicial review, see Legal update, Principal authority is required to investigate and decide upon allegations of councillor’s breach of a parish council’s code of conduct under the Localism Act 2011 (High Court), the High Court had quashed the town council’s decision to impose sanctions on the claimant. The court held that the relevant provisions in sections 27 and 28 of the LA 2011 imposed a duty on principal authorities of parish councils (being either a town or parish council) to investigate and decide upon allegations of breaches of the town councils’ code of conduct. The town council had acted unlawfully in applying additional sanctions over and above those recommended by its principal authority and that were beyond its powers.
Having secured the quashing of the decision, the claimant was the successful party (although he did fail in his contention that the town council rather than East Devon District Council, the principal authority, was the decision-maker in respect of the decision as to breach). However, having been invited to depart from the general rule on costs, it was necessary for the court to evaluate the conduct of the parties in dealing with the dispute once it had arisen. In the court’s judgment, the case was one where the interests of justice required a departure from the general rule on costs.
Decision of the Court on costs
As the High Court made clear, the costs jurisdiction has the important function of operating as an incentive to resolve disputes where possible. There was extensive correspondence in this case between the parties as to how the dispute might be resolved. Of course, the longer that went on, the greater were the costs and the harder it became to reach settlement. Indeed, the claimant had issued his proceedings on 1 March 2016, even though on 26 February 2016 the town council had responded to the claimant’s pre-action protocol letter stating that the sanctions against him were revoked.
Further, in a letter dated 19 March 2016, the town council offered to quash its decision, to reconsider whether any sanctions should have been imposed, provided reassurance that any such sanctions would be limited to censure, and to pay the claimant’s costs on the standard basis. All offers were rejected by the claimant, even though, as early as June 2016, solicitors acting for the claimant accepted that the only real issue between the parties was costs. From a reading of the judgment and the overtures that were made to settle, it is surprising that the case remained contested until trial. What is apparent however is that the substantial costs both sides incurred could have been avoided.
On the basis of the material before it, the High Court found that:
- The town council’s letter of 26 February 2016 had substantially resolved the dispute. The “loose ends” could and should have been agreed without the need for any proceedings.
- The claimant should have accepted the subsequent offers to pay costs (made by the town council on 19 and 29 March 2016). He achieved nothing of value after rejecting the offer and did no better in court.
- The claimant’s pursuit of the proceedings was not characterised by a genuine attempt to resolve a genuine grievance (his real motive had been to avoid the decision of East Devon District Council by preventing the town council from censuring him in relation to the breach of the code).
- It should make an order reflecting the fact that the claimant had succeeded in the sanctions decision being quashed. However, the town council’s offer letter of 19 March 2016 was a key document. From that date, the court found that the claimant’s continuation and conduct of the proceedings was unreasonable.
For these reasons, the court made an order that the council pay the claimant’s costs (on the standard basis) up to and including the 19 March 2016 but that the claimant was liable for the costs that the council incurred on and after 20 March 2016.
As the court noted, this case was unusual in that the court had reserved judgment after an oral hearing on costs. That had in part been necessary to analyse the underlying facts of the case that had some bearing on the court’s exercise of discretion in relation to costs.
So what practical tips can be distilled from the case?
- A claimant should not lose sight of the key issues or what they are trying to achieve in a judicial review challenge.
- Any request from a proposed defendant for more time to provide a substantive response to a pre-action protocol letter should be agreed. It may lead to the defendant concluding that the decision is not sufficiently robust to withstand legal challenge.
- Are the issues between the parties so narrow that they can be agreed without recourse to the courts?
- If the defendant makes an offer to settle, is that offer reasonable and does it achieve the desired effect? If the offer is rejected, will the court consider it was unreasonable to continue with the proceedings and is there a risk of an adverse costs order being made?
For more information on costs in judicial review, see Practice note, Judicial review procedure: a practical guide.