When A Judicial Review Claim Is Discontinued | Can The Defendant Recover Costs Beyond The Acknowledgment Of Service Stage?

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The High Court’s decision in KXO and OYW v Devon County Council [2026] EWHC 203 (Admin) confirms that discontinuance of a judicial review claim triggers full costs liability under CPR 38.6, not merely costs limited to the Mount Cook stage.

Background

The claim was a judicial review brought on behalf of two children, KXO and OYW, by their mother, SZO, acting as their litigation friend. The Claimants challenged decisions made by Devon County Council on 25 May 2023 to propose amendments to their Education, Health and Care Plans (EHCPs) under regulation 28 of the Special Educational Needs and Disability Regulations 2014. The Claimants contended the Council acted unlawfully by amending the plans outside a formal review process. The Council maintained the decisions were lawful, provisional, and that an adequate alternative remedy existed via a statutory appeal to the Special Educational Needs and Disability Tribunal.

The procedural history was protracted and marked by considerable difficulties. The claim was issued on 30 May 2023 without a pre-action letter, in breach of the Pre-Action Protocol for Judicial Review. An application for interim relief was refused following a hearing on 8 June 2023 before DHCJ Mathew Gullick KC. The litigation friend, a disabled litigant in person diagnosed with Autism, ADHD, Agoraphobia and partial deafness, subsequently engaged in a pattern of conduct that included filing then withdrawing applications to discontinue the claim, making repeated complaints about an alleged failure to provide reasonable adjustments, failing to respond to court enquiries, and making applications that were certified as totally without merit. The court had, on multiple occasions, directed special measures to facilitate her participation, including remote attendance, permission for a supporter, and regular breaks.

On 5 January 2026, the litigation friend filed and served a Notice of Discontinuance. The court listed a hearing to determine, amongst other things, whether court permission or approval was needed for the discontinuance under CPR 38 or CPR 21.10 and to deal with costs. At the hearing on 3 February 2026, the litigation friend did not attend, although the hearing was available by CVP with the special measures previously directed. The court found that the Notice of Discontinuance was valid and had effectively ended the claim on 5 January 2026. Court approval was not required under CPR 21.10 because the discontinuance was unilateral and did not constitute the settlement or compromise of the claim. The only remaining issue was the liability for costs.

Costs Issues Before the Court

The primary costs issue was the financial consequence of the Claimants’ discontinuance. The general rule under CPR 38.6(1) is that a claimant who discontinues is liable for the defendant’s costs incurred up to the date of discontinuance, unless the court orders otherwise. The court needed to determine whether this default rule should apply. A related question was whether any costs award should be limited to the acknowledgment of service and summary grounds stage on a Mount Cook basis, or whether the full costs of the proceedings were recoverable. A secondary issue was the personal liability of the litigation friend for any costs order made against the child Claimants, governed by CPR 21.12.

The Parties’ Positions

The Defendant’s Position: The Council observed that by filing the Notice of Discontinuance, the Claimant had triggered liability for the Defendant’s costs under CPR 38.6(1). The Defendant made no positive application for costs but noted that the Claimant had made no application to reverse the general rule. The Defendant accepted that, given the litigation friend’s personal circumstances, any costs order should not be enforceable without the court’s permission.

The Claimants’ Position: The litigation friend did not attend the hearing and made no formal submissions on costs. In her witness statement dated 5 January 2026, she acknowledged that the Defendant’s costs were “highly likely to be passed on to me by way of a costs order.” No application was made to demonstrate a good reason for departing from the CPR 38.6 default rule.

The Court’s Decision

The court ordered that the Claimants, and therefore the litigation friend, pay all the Defendant’s costs of the proceedings — not simply the cost of preparing the acknowledgment of service and summary grounds on a Mount Cook basis — to be assessed if not agreed. The order was not to be enforced without the court’s leave.

In reaching this decision, the court applied the clear terms of CPR 38.6(1). As the Claimants had discontinued and had made no application to displace the general rule, it applied. The court had regard to the fact that the litigation friend was unrepresented and disabled, and the need to make reasonable adjustments to ensure fairness. However, it found that being a litigant in person does not exempt a party from compliance with the Civil Procedure Rules and Practice Directions, citing the Administrative Court Guide 2025 at paragraph 4.2.1. The court was satisfied that the litigation friend must be taken to be aware of the costs consequences of discontinuing under CPR 38.6, noting the Administrative Court Guide is designed to be accessible to litigants in person.

On the issue of personal liability, the court referred to CPR 21.12 and the certificate of suitability of litigation friend signed on 30 May 2023. This certificate contained an undertaking in the following terms: “I undertake to pay any costs which the above named claimant may be ordered to pay in these proceedings subject to any right I may have to be repaid from the assets of the claimant.” The court held that the litigation friend must be taken to be aware of her personal liability, a point she herself had acknowledged in her 5 January 2026 statement.

The court expressly declined to limit recovery to the Mount Cook basis, ordering all of the Defendant’s costs pursuant to CPR 38.6(1) and noting that no application had been made to displace the default rule. The judgment separately records a protracted procedural history involving multiple interlocutory applications, directions hearings, and the Defendant’s attendance at the final hearing by counsel — context which underscores why the costs exposure following discontinuance extended well beyond the acknowledgment of service stage.

Finally, the court recorded — though it was not in a position to act upon it — that had it retained jurisdiction, it would have refused permission to apply for judicial review and dismissed the claim as totally without merit. The court found the Claimants had an adequate alternative remedy by way of statutory appeal to the SENDisT. The court further indicated it would have been strongly inclined to refer the matter for consideration of a general civil restraint order, but was precluded from doing so by the valid discontinuance. By virtue of CPR 38.7, the Claimants will not be permitted to bring another claim arising from the same or similar facts without the court’s permission.

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Costs In Discontinued Judicial Review | When A Change Of Government Breaks The Causal Chain

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The Court of Appeal’s decision in R (Public and Commercial Services Union) v Secretary of State for the Home Department [2025] EWCA Civ 1644 upholds a ‘no order as to costs’ determination where a judicial review became academic following a change of government that was already publicly committed to repealing the challenged legislation.

Background

The Public and Commercial Services Union (PCSU) challenged the lawfulness of the Strikes (Minimum Service Levels: Border Security) Regulations 2023. These regulations empowered the Secretary of State for the Home Department to serve “work notices” on trade unions, requiring them to take “reasonable steps” to ensure specified border staff did not participate in strikes [§3]. Failure to comply meant the union would lose immunity from tort liability, while non-complying members would lose statutory protections from detriment and dismissal [§4].

PCSU issued a pre-action protocol letter on 17 January 2024, arguing the regulations unlawfully interfered with Article 11 ECHR rights and inviting their withdrawal [§5]. The then-Conservative government defended the lawfulness of the regulations in its response dated 15 February 2024 [§7]. PCSU issued judicial review proceedings on 5 March 2024 [§8], with permission granted by Holgate J on 8 May 2024 in respect of two grounds, both based on Article 11 ECHR [§10]. The defendant filed detailed grounds maintaining its defence on 26 June 2024 [§12].

The context changed following the general election on 4 July 2024, which resulted in a Labour government [§13]. The Labour Party had, while in opposition, opposed the underlying 2023 Act and the regulations, pledging to repeal them [§6, §11]. On 6 August 2024, the Minister for Migration and Citizenship wrote to PCSU confirming the new administration’s belief that the 2023 Act “unduly restricts the right to strike” and pledged to repeal it via the forthcoming Employment Rights Bill [§15]. The letter confirmed that, although the legal power remained until repeal, the Home Secretary would not exercise the power to issue work notices in the interim [§15].

The following day, the Government Legal Department wrote stating the claim had become academic and inviting discontinuance. It also stated that the Home Secretary would not agree to pay PCSU’s costs, since PCSU had “not demonstrated that the claim has become academic by virtue of the legal merits of the case” [§16]. The parties agreed to discontinue the claim, with the ordinary costs consequences of discontinuance disapplied by consent, leaving the issue of costs for the court’s determination based on written submissions [§17].

Costs Issues Before the Court

The sole issue for HHJ Jarman KC at first instance, and subsequently the Court of Appeal, was the appropriate costs order following the discontinuance of the judicial review claim after it became academic due to a change of government policy. PCSU sought its costs on the basis it had been “wholly successful” in obtaining what it sought, namely the repeal of the MSL Regulations [§18]. The Secretary of State resisted any costs order, contending the claim had “become academic for political reasons, rather than for reasons connected with the merits of the claim” [§19]. The Respondent did not file any witness evidence in support of this assertion [§19]. The court had to determine whether, in these specific circumstances, PCSU was the “successful party” entitled to its costs, or whether the lack of a causal link between the claim and the outcome warranted a different order.

The Parties’ Positions

The Appellant’s (PCSU’s) Position: PCSU argued it had been “wholly successful” in obtaining what it sought via the litigation [§18]. It contended that the minister’s letter, which described the regulations as “unduly restrictive,” amounted to an acknowledgment that the claim was soundly based in law. It submitted that the authorities did not place an evidential burden on a claimant to prove the defendant’s concession was caused by the litigation [§40]. Relying on the line of authority beginning with R (Bahta) v SSHD, PCSU argued that a defendant could no longer avoid costs by asserting “pragmatic” settlement reasons without clear evidence [§40]. It emphasised the constitutional continuity of government, submitting that the new administration could not be “absolved of [legal] responsibility for the acts of the previous administration” [§39].

The Respondent’s (Secretary of State’s) Position: The respondent accepted that where it is “tolerably clear” a claimant would have won at trial, they would usually be entitled to costs, but pointed out (correctly) that it had not been suggested that the judge should have made an order for costs on that basis in this case [§41]. The respondent’s central contention was that the claim became academic for extrinsic political reasons following a change of government, not because of the claim’s legal merits. It argued that a causal link between the claim and the relief obtained was required, citing Speciality Produce Ltd, ZN (Afghanistan), and Parveen [§41]. It submitted that the clear pre-election pledge to repeal the Act meant the outcome would have happened anyway, irrespective of the litigation.

The Court’s Decision

The Court of Appeal (Bean LJ, with whom Peter Jackson and Elisabeth Laing LJJ agreed) dismissed the appeal, upholding HHJ Jarman KC’s order of no order as to costs [§48–50]. The court’s analysis focused on the principles governing costs in settled judicial review claims and the critical issue of causation.

The court reiterated the high threshold for appellate intervention in costs matters, as set out in Roache v News Group Newspapers Ltd: before the court can interfere, it must be shown that the judge erred in principle, left out of account or took into account some feature that should or should not have been considered, or that the decision was wholly wrong [§22]. It then applied the principles from the seminal case of R (M) v Croydon LBC, noting that where a claimant obtains substantially all relief sought (a “type (i)” case), it is hard to see why they should not recover all costs absent a good reason [§26]. However, the court emphasised that subsequent authorities, including Speciality Produce, R (RL) v Croydon, ZN (Afghanistan), and Parveen, establish that causation is a “relevant and sometimes decisive factor” [§36]. A claimant must show that the litigation caused or contributed to the result; it is not enough that the desired result occurred if it “would have happened anyway” [§47].

The court accepted PCSU’s constitutional continuity argument in principle, agreeing that an incoming government “cannot be absolved of [legal] responsibility for the acts of the previous administration” [§43]. However, it found that was not what the Government was asserting in this case [§43].

The court also accepted that R (Bahta) and M v Croydon represented an important change in attitude, meaning defendants can no longer escape costs by citing “purely pragmatic reasons” for settlement [§44]. In the typical case where a public body agrees to reconsider a challenged decision following issue of proceedings, and there is no dispute about causal link, the claimant will generally be entitled to costs [§44].

However, the court rejected PCSU’s characterisation of the minister’s letter as a legal admission [§46]. It found the phrase “unduly restrictive” simply reflected the new administration’s long-held political view, not a concession that the regulations were unlawful or that the claim would have succeeded at trial. The court held that the letter “cannot be read as if it said” something akin to an admission that the High Court would have found a breach of Article 11 rights or that the interference exceeded the margin of appreciation [§46].

It had, realistically, not been suggested on behalf of PCSU that this was a case which the Union would clearly have won at trial. The court observed that “Article 11 cases have not usually resulted in easy victories for claimants, either in our domestic courts or at Strasbourg” [§45]. The question therefore turned on whether the bringing of the claim made a difference to the outcome, either by changing the decision which would otherwise have been taken or at least achieving the desired result more quickly than would otherwise have occurred [§45].

The court agreed with the respondent that the commitment of the Labour Party to repeal the restrictions was so clear that there was good reason to believe it would have come about in any event, even if PCSU had not issued its claim [§47]. Using the terminology of Singh LJ in ZN (Afghanistan), the outcome was achieved for an “extrinsic reason”; or in the words of Males LJ in Parveen, it “would have happened anyway” [§47]. As in R (RL) v Croydon, the claimant got what it wanted, but had not shown it got what it wanted, or even got it more quickly, because of issuing the claim [§47].

The court characterised this case as “quite close to the borderline” but was not satisfied that HHJ Jarman KC made any error of principle or error of law which would justify overturning his exercise of discretion [§48]. His concise reasoning—that the claim became academic for political reasons after a change of government, not because of the claim—was sufficient and disclosed no error of principle [§42]. The appeal was therefore dismissed.

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The Court of Appeal’s decision in R (Nisar and Others) v SSHD; R (Mammedov) v SSHD [2025] EWCA Civ 1646 confirms that the precise language of Home Office deadline commitments determines whether a legal obligation is created, with direct consequences for costs recovery in settled immigration judicial reviews.

Background

The appeals concerned two separate judicial review claims against the Secretary of State for the Home Department (SSHD), which were heard together. In both, the appellants were foreign nationals living outside the UK whose applications for entry clearance as visitors had been refused. Following pre-action correspondence, the SSHD in each case agreed to withdraw the challenged decision and make a new one, indicating a timeframe for doing so. The fresh decisions were made shortly after the indicated dates and were again refusals. In the interim period between the deadline passing and receiving the decision, each appellant commenced a claim for judicial review challenging the delay. These claims were discontinued by consent once the decisions were received. The sole remaining dispute was over costs [§1–5].

In the case of Nisar, the appellants (a mother and her four children, all Pakistani nationals) had a protracted history of refusals and reconsiderations [§6–8]. In a letter dated 25 July 2023, the SSHD stated that “a decision regarding your client’s UK visitor visa will be made by the 21/08/2023, absent special circumstances” [§11]. The decision to refuse was made on 22 August but not served until 23/24 August 2023 [§12–13]. The judicial review claim had been lodged on 22 August 2023, the same day the decision was made but before it was communicated [§12, §16]. The parties agreed to discontinue the claim, leaving costs to be determined. Upper Tribunal Judge Sheridan made no order as to costs, finding both parties’ conduct contributed to the unnecessary proceedings [§16].

In the case of Mammedov, the appellant was a national of Turkmenistan who had been living in Turkey as a student since 2016 [§19]. The SSHD’s letter of 20 December 2024 stated that “Barring complexities, the SSHD aims to issue a reconsidered decision on your client’s visit visa application within 3 months of the date of this response to your letter before claim (by 20 March 2025, absent special circumstances)” [§20]. A reminder email was sent on Sunday 16 March 2025, warning that proceedings would be issued if no decision was made by the deadline [§22]. No decision was made by 20 March, and proceedings were issued on 21 March 2025 [§23]. A refusal decision was made on 28 March 2025 [§24]. The claim was discontinued by consent. Upper Tribunal Judge Hirst also made no order as to costs, citing the appellant’s failure to comply with the Pre-Action Protocol regarding the new issue of delay [§27].

Costs Issues Before the Court

The central costs issue in both appeals was whether the Upper Tribunal judges had erred in their discretion by making no order as to costs, rather than awarding costs to the appellants as the successful parties. The legal context was the settlement of judicial review proceedings before a substantive hearing, where the defendant public authority provides the substantive remedy (a decision) after proceedings are issued. The court was required to apply the principles from R (M) v Croydon LBC [2012] EWCA Civ 595 and related authorities to determine if the appellants could be considered “successful” and whether there was a sufficient causal link between the issued claim and the obtaining of the decision to justify a costs order in their favour [§30–36].

The Parties’ Positions

The appellants argued they were the successful parties as they obtained the remedy sought—a decision on their application—as a result of issuing proceedings. In Nisar, it was submitted that the SSHD’s unequivocal commitment to decide by a specific date created a legal obligation, the breach of which reasonably triggered litigation [§17]. The judge’s conclusion that the appellants should have chased for a decision was irrational. In Mammedov, the appellant argued the reminder email of 16 March was sufficient compliance with the Pre-Action Protocol, and a further formal letter was not required given the SSHD’s prior commitment and failure to act [§28].

The respondent SSHD opposed the appeals. It argued that in neither case were the appellants “successful” in a relevant sense, as the eventual decisions were refusals. It contended there was no, or insufficient, causal link between the issued claims and the decisions being made. In Mammedov, the SSHD supported the judge’s finding that a fresh Pre-Action Protocol letter was required to complain about the delay, a new issue not raised in the earlier correspondence.

The Court’s Decision

The Court of Appeal allowed the appeal in Nisar but dismissed the appeal in Mammedov. Applying the principles from R (M) v Croydon, the court held that the exercise of discretion on costs could be interfered with only if the judge erred in principle, considered irrelevant matters, or the decision was wholly wrong [§30].

In Nisar, the court found the claim fell squarely within category (i) of M v Croydon (where a claimant is wholly successful) [§48]. The SSHD’s letter of 25 July 2023 was sufficiently clear to amount to a legal obligation to decide by 21 August 2023, even if it was not an “enforceable undertaking” in the sense of being subject to specific performance or committal [§46]. The breach of that obligation, without citing special circumstances, made the issuance of proceedings reasonable. The court rejected the Upper Tribunal’s view that the appellants should have contacted the SSHD first, noting the unequivocal nature of the commitment [§46]. The claim was causative of the relief because, without the threat of litigation backed by the deadline, the delay would have been greater [§47]. The SSHD was therefore ordered to pay the appellants’ costs of the brief period up to the compromise [§48].

In Mammedov, the court found no error in the judge’s exercise of discretion [§49–50]. The SSHD’s letter used the language “aims to issue,” which did not create a legal obligation akin to the promise in Nisar [§49]. The issue of delay had not been raised in prior pre-action correspondence, and the delay had not reached the stage where it was so excessive as to be manifestly unreasonable [§49]. The Upper Tribunal was entitled to conclude that raising this new issue via a proper Pre-Action Protocol letter before issuing proceedings was reasonable and in accordance with the overriding objective. The failure to do so constituted a good reason to depart from the general costs rule [§49].

The court emphasised that Patten LJ’s statement in Speciality Produce Ltd v Secretary of State for the Environment [2014] EWCA Civ 225—that the claim “must be causative of the relief obtained”—was not to be treated as a statute nor as imposing a strict causation test in every case [§47]. The different outcomes in the two appeals turned on their distinct factual matrices, particularly the nature of the SSHD’s commitment and the reasonableness of commencing proceedings without further pre-action steps.

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In R (on the application of Prestige Social Care Services Ltd) v Secretary of State for the Home Department [2025] EWHC 2860 (Admin), the court dismissed a sponsor licence revocation challenge but reduced the defendant’s costs to reflect its failure on the Annex C1 ground.

Background

The claim for judicial review was brought by Prestige Social Care Services Ltd challenging the Secretary of State’s decision to revoke its sponsor licence under the Workers and Temporary Workers: Guidance for Sponsors. The claim raised three substantive grounds, including whether the revocation based on “non-genuine vacancies” under Annex C1 Ground (z) of the Sponsor Guidance was irrational. The Defendant argued revocation was justified under both Annex C1 Ground (z) and, alternatively, under Annex C2 Grounds (a) and (b) (breach of sponsor duties), citing high staff turnover, a failed visa application, and recruitment of a worker unable to drive for a driving-required role.

Following a one-day hearing on 23rd September 2025, His Honour Judge Tindal (sitting as a Judge of the High Court in the Administrative Court, Birmingham) dismissed the claim. Whilst the court found the Defendant’s reasoning under Annex C1 irrational, it held the decision to revoke was nevertheless lawfully sustainable under Annex C2 Grounds (a) and (b) (breach of sponsor duties) pursuant to section 31(2A) Senior Courts Act 1981. The court then directed written submissions on costs and permission to appeal.

Costs Issues Before the Court

The court was required to determine three costs questions following dismissal of the claim: first, whether the Defendant as successful party was entitled to its costs; second, whether any reduction should apply given the Defendant’s failure on the Annex C1 issue despite succeeding overall; and third, whether the Defendant’s late service of its costs schedule warranted any penalty. The court also needed to fix the quantum and payment terms.

The Parties’ Positions

The Defendant sought its costs as the successful party, submitting a schedule totalling £21,712.70. It relied on the general rule under CPR 44.2(2)(a) that the unsuccessful party pays the successful party’s costs.

The Claimant did not dispute that the Defendant was the successful party but contended a costs reduction was warranted on two bases.

      • First, the Defendant had not succeeded on all issues – specifically, the court found the Annex C1 reasoning irrational. The Claimant relied on CPR 44.2(4)(b) which permits the court to consider whether a party succeeded on part of its case even if not wholly successful.
      • Second, the Claimant pointed to the Defendant’s delay in filing and serving the costs statement, submitting this should be taken into account under CPR PD 44 paragraph 9.6 and Simpson v MGN [2015] EWHC 126 (QB). Notably, the Claimant did not propose a specific percentage reduction.

The Court’s Decision

His Honour Judge Tindal accepted the Defendant was the successful party as the claim had been dismissed, triggering the general rule under CPR 44.2(2)(a). However, applying CPR 44.2(4) and (5), the court considered the Defendant had not succeeded on all issues.

Impact of Late Costs Schedule

On the late costs schedule, the court acknowledged that under CPR PD 44 para 9.6 and Simpson v MGN, late service may be taken into account and costs reduced. However, the court found the Defendant’s delay was “technical and had no impact at all” as judgment had been reserved. Nevertheless, the court stated it would “take it into account” under para 9.6, though this appeared to be absorbed into the overall assessment rather than driving any specific reduction.

The Proportionate Costs Reduction

The court then turned to the more significant issue: whether the Defendant’s partial failure on issues warranted a costs reduction. The court cited Multiplex v Cleveland Bridge [2009] 1 Costs LR 155, where Jackson J (as he then was) held at paragraph 71(viii):

“In assessing a proportionate costs order, the judge should consider what costs are referable to each issue and what costs are common to several issues. It will often be reasonable for the overall winner to recover not only the costs specific to the issues which he has won but also the common costs.”

Applying this principle, the court noted the Defendant’s schedule was modest at £21,712.70 (less than a quarter of the Claimant’s schedule) and, whilst not broken down by issue, “most of the costs expended are likely to have been common costs.” Nevertheless, the court held “there should be some deduction by a proportion to reflect that the Defendant did not succeed on all issues.“

The court observed that neither party had suggested a specific percentage reduction. Taking a “broad-brush” approach, the court reasoned that although the Defendant succeeded overall, it did not prevail on the Annex C1 non-genuine-vacancy issue (Ground (z)), even though it succeeded on alternative grounds under Annex C2 and on the case overall. The court therefore held “the appropriate reduction should be modest” and applied a 15% deduction to reflect this partial failure.

Further “Rounding Down” Adjustment

The court then made an additional observation, noting that “six hours preparing for a one-day hearing is on the high-side for a Defendant.” Following the 15% deduction to reflect partial success, the court rounded the resulting figure down to £18,000 inclusive of VAT as a proportionate final sum, rather than mechanically calculating 85% of £21,712.70 (which would have been £18,455.80).

Payment Terms and Procedural Matters

The court ordered the Claimant to pay £18,000 within three months, reflecting that the Claimant was a small business whilst the Defendant was a Government department. The court allowed the Claimant seven days to apply to vary either the costs order or the payment timetable, failing which the order would stand. The court also extended the time for any appeal application accordingly.

Permission to appeal was refused, as the grounds raised were either fact-specific or not directed at the determinative issues in the case.

Implications for Practice

This decision provides practical guidance on several costs principles in judicial review proceedings:

      • Proportionate costs orders under CPR 44.2 and section 31(2A): Even where a claim is dismissed and the defendant is clearly the successful party – indeed, even where relief is refused under section 31(2A) Senior Courts Act 1981 because the outcome would have been substantially the same without the error – the court will examine whether that party failed on discrete issues. Where such failure is established, a modest percentage reduction may be appropriate to reflect the resources expended on an issue the successful party lost.
      • The common costs principle: Courts recognise that in multi-ground judicial review claims, most costs are “common costs” that would have been incurred regardless of which ground ultimately succeeded. This militates against substantial reductions where the successful party’s overall case prevailed. Here, a 15% reduction was deemed “modest” and appropriate where common costs predominated and the successful party would have won on alternative grounds in any event.
      • Late costs schedules: Technical procedural failures in serving costs schedules will be noted under CPR PD 44 para 9.6 but may have limited practical impact where they caused no delay to the court’s decision-making process. Courts retain discretion to “take into account” such failures without imposing punitive reductions, particularly where judgment has been reserved.
      • Broad-brush discretion: Courts will exercise broad-brush discretion based on their assessment of the relative success on different issues, the nature of the failure, and whether the successful party would have prevailed in any event. The court is not bound to apply precise mathematical formulae but may round to an appropriate figure reflecting overall proportionality.

For practitioners, the case reinforces that winning overall does not guarantee full costs recovery. Where multiple grounds are advanced and one fails – even if that failure does not affect the ultimate outcome under section 31(2A) – defendants should expect modest reductions to reflect the wasted costs on that issue.

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The High Court’s decision in R (The Badger Trust and Wild Justice) v Natural England [2025] EWHC 2761 (Admin) provides detailed guidance on when courts may vary Aarhus Convention costs caps under CPR 46.27, establishing that objective unreasonableness operates as a freestanding protection even where increased costs are real-world affordable for claimants.

Background

The case involved a judicial review claim brought by two environmental non-governmental organisations, The Badger Trust and Wild Justice, against Natural England. The claim challenged a decision made on 3 May 2024 to issue or renew 26 supplementary badger cull licences, authorising the killing of badgers between 1 June 2024 and 30 November 2024 [§3]. The Interested Party was the Secretary of State for Environment, Food and Rural Affairs. Permission for judicial review was granted by Fordham J at an oral renewal hearing on 15 May 2025 [§3], with a two-day substantive hearing scheduled for December 2025 [§3].

The case was recognised as an Aarhus Convention claim, engaging the costs protection provisions of CPR Part 46 Section IX [§20]. The default costs caps under CPR 46.26 were therefore applicable, limiting the claimants’ potential costs liability to £10,000 each and the defendant’s liability to £35,000 [§22]. Natural England subsequently applied for a variation of these caps under CPR 46.27, seeking to increase the claimants’ caps to £20,000 for Wild Justice and £30,000 for Badger Trust [§58].

The hearing before Fordham J on 16 October 2025 dealt with two distinct applications: Natural England’s application for redaction of certain decision-making documents, and its application to vary the Aarhus costs caps [§1, §7]. Judgment was handed down on 28 October 2025 [title page].

Costs Issues Before the Court

The primary costs issue for determination was Natural England’s application under CPR 46.27 to vary the default Aarhus Convention costs caps [§17]. The application required the court to consider whether increasing the caps would make the costs of the proceedings prohibitively expensive for the claimants, applying the two-limb test set out in CPR 46.27(3) [§23]. The court had to analyse both whether likely costs exceeded the claimants’ financial resources (Limb (a)) [§§29-33] and whether the likely costs were objectively unreasonable (Limb (b)) [§§34-44], having regard to the specific mandatory factors listed in the rule. A secondary costs issue concerned the allocation of costs for the redactions application and the variation application itself [§§62-64].

The Parties’ Positions

Natural England, represented by Paul Luckhurst and Sean Butler, contended that the default £10,000 caps should be increased to £20,000 for Wild Justice and £30,000 for Badger Trust [§58]. They argued this represented a fairer balance, producing a total potential recovery of £50,000 if successful [§58]. Their submissions emphasised that the claimants had real-world affordability, pointing to Wild Justice’s cash reserves of £57,576 (as at 8 October 2025) [§47] and Badger Trust’s reserves of approximately £326,000 (as at 31 December 2024) [§48]. They noted the claimants’ successful crowdfunding campaign which raised £57,180 against a target of £52,486 [§55], suggesting further fundraising was possible. Natural England also highlighted the backward-looking nature of the claim and current government policy favouring curtailed culling, suggesting limited environmental importance [§58].

The Claimants, represented by David Wolfe KC and Barney McCay, opposed the variation. They characterised the default Rule 26 caps as a carefully considered balance struck by the rule-maker, not merely a starting point [§§25-26]. They submitted that even if real-world affordability could be demonstrated (Limb (a)), the increase sought was objectively unreasonable under Limb (b) [§45]. They emphasised the public interest imperative in facilitating access to environmental justice and the need for environmental NGOs to function as repeat players [§56]. Witness evidence indicated both claimants would reluctantly withdraw their claim if faced with a materially increased cap, demonstrating the chilling effect such a variation would have [§§47-48]. They contended that the claim had a reasonable prospect of success, involved important environmental issues, and was a paradigm environmental protection case undiluted by private economic interests [§§50, 52-53].

The Court’s Decision

Fordham J refused Natural England’s application to vary the costs caps [§62]. He held that even assuming the claimants could real-world afford the increased caps (Limb (a)), Natural England had failed to demonstrate that the increase would not be objectively unreasonable (Limb (b)) [§45].

The Legal Framework: Rule 26 Caps as More Than Placeholders

The court provided significant analysis of the legal framework, characterising the Rule 26 default caps (£5,000 for individuals, £10,000 for organisations) as more than mere placeholders [§26]. They were described as representing a “normal” and “general” position [§§25-26], chosen by the rule-maker on a principled basis to facilitate access to environmental justice while minimising satellite litigation [§26]. The caps were said to constitute a “soft presumption” [§26], providing clear signalling to avoid chilling effects [§27]. The court emphasised the onus on any party seeking variation to clearly demonstrate its appropriateness [§§25-26].

The Two-Limb Test for Prohibitive Expensiveness

Fordham J provided detailed guidance on the meaning of “prohibitively expensive” under CPR 46.27(3), explaining that it comprises two independent bases [§§29-44]:

Limb (a): Real-World Affordability (§§29-33)

The court found this limb involves a means test focusing on the claimant’s actual financial resources and practical ability to pay [§§30-31], having regard to any third-party financial support under CPR 46.27(4) [§29]. This is about whether likely costs exceed the claimant’s financial resources in CPR 46.27(3)(a). The judge explained this is “really a kind of means test” [§30], concerned with “real-world unaffordability of the actual case for the actual claimant, in light of the money which the claimant has or can access” [§30]. Money in the bank does not automatically equal practical ability to pay if needed for essential purposes [§31].

Limb (b): Objective Unreasonableness (§§34-44)

The court clarified this operates as a freestanding protection even where costs are real-world affordable [§35]. Limb (b) is “a second way to protect a claimant for whom the proceedings are real-world affordable” [§35]. It establishes an objective standard of reasonableness to promote access to environmental justice [§34], assessed by reference to the six mandatory factors in CPR 46.27(3)(b): (i) the situation of the parties; (ii) reasonable prospect of success; (iii) importance for the claimant; (iv) importance for the environment; (v) complexity; and (vi) whether frivolous [§34].

Fordham J emphasised that “real-world affordability cannot drive a conclusion of objective reasonableness” as “that would subvert the rule and undermine the public interest aims” [§43]. The question is not affordability but reasonableness [§38], informed by the facilitative purpose in paradigm environmental protection cases [§§37-38].

Application to the Facts

Applying these principles, Fordham J found the variation objectively unreasonable because [§§46-57]:

      • The court held that the claim had a reasonable prospect of success, having crossed the permission threshold despite Natural England’s resistance [§50]
      • The court found the issues were important both for the claimants and “for the environment” under CPR 46.27(3)(b)(iv), involving an environmental protection case with backward-looking legal audit value [§52]
      • The court characterised the case as representing undiluted environmental protection without “individual economic interests” or mixed purposes [§53], distinguishing it from the CPRE case where local property owners funded the challenge [§53]
      • The claimants’ crowdfunding and legal arrangements (discounted rates, specialist lawyers) were eminently reasonable and could not be criticised [§55]
      • Increased caps would undermine their capacity to function as repeat players in future environmental litigation, and “space to be a repeat player” is essential for proper access to environmental justice [§56]
      • The existing caps already represented a doubling of protection due to two claimants being involved under CPR 46.26(4) [§51]
      • Natural England as a public authority with a £350m annual budget and £2.32m legal budget must accept practical implications of legal audits and irrecoverable costs [§54]

A Warning About Financial Scrutiny

Fordham J added pointed observations about the nature of Natural England’s application [§§60-61]. He noted that the claimants’ accounts, reserves policies, and fundraising arrangements had been subjected to “close scrutiny” during a “considerable portion of a 3-hour hearing“. While acknowledging this was permitted by the CPR 46.27 mechanism, the judge expressed concern that “the court room during this hearing would, I think, have been a chilling place for responsible environmental NGOs, contemplating viable environmental protection judicial review claims” [§61]. He concluded: “it was particularly appropriate that the Court should respond as robustly, straightforwardly and clearly as it legitimately could” [§61].

Orders Made

The court ordered [§§62-64]:

      • The variation application was dismissed [§64]
      • Natural England must pay the claimants’ costs of the variation application on the standard basis, to be assessed if not agreed [§64]
      • The costs of the redactions application were ordered to be the Claimants’ costs in the case [§64]
      • Confidential versions of certain decision-making documents were to be filed, with tailored restrictions requiring any press or public application for access to trigger notice to Natural England and a right to be heard [§§12-15]

Key Takeaway

This decision establishes that Aarhus Convention costs cap variations under CPR 46.27 must satisfy a rigorous two-limb test, with objective unreasonableness operating as an independent protection even where claimants can afford increased costs. Courts will scrutinise applications closely in paradigm environmental protection cases, recognising the need for environmental NGOs to function as repeat players and the chilling effect that detailed financial scrutiny can have on access to environmental justice.

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High Court Removes The “Murphy” Exceptionality Test For Inter Partes Costs In Criminal Judicial Reviews

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The Divisional Court’s decision in R (Bates) v Highbury Corner Magistrates’ Court [2025] EWHC 2532 (Admin) fundamentally changes how costs are approached in criminal judicial review proceedings by holding that the long-established Murphy principle was wrongly decided and should no longer be followed.

Background

The judicial review proceedings were brought by the Claimant, Mr Antony Bates, to challenge a summons issued against him in the Highbury Corner Magistrates’ Court and the decision to send him to the Crown Court for trial. The summons had been issued on the application of the Interested Party, Mr James Westhead, who was acting as a private prosecutor. In a judgment dated 31 January 2025 (R (Bates) v Highbury Corner Magistrates’ Court [2025] EWHC 184 (Admin)), the High Court quashed the summons and the committal decision, finding that the application for the summons was vexatious and an abuse of process [§1].

Following the substantive judgment, the Court convened as a Divisional Court (Lady Justice Whipple and Lady Justice Yip) to determine the Claimant’s applications for costs [§1]. The Claimant sought two distinct forms of costs relief: first, the costs incurred in bringing the judicial review proceedings pursuant to section 51(1) of the Senior Courts Act 1981; and second, the costs thrown away in the criminal proceedings in the magistrates’ court pursuant to section 19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 [§2]. The costs claimed for the criminal proceedings were quantified at £235,922.11 (including over 400 hours of solicitor time), while the costs for the judicial review proceedings had not been quantified pending the Court’s decision on the principle of recoverability [§4-5]. The Defendant, the magistrates’ court, did not participate in the costs hearing, and the Interested Party, Mr Westhead, attended in person [§8, 90]. The Attorney-General appointed Paul Jarvis KC as Advocate to the Court to assist on the legal issues arising from the Murphy principle [§10-11].

Costs Issues Before the Court

The Court was required to determine two primary costs issues [§12]. The first concerned the Claimant’s application for the costs of the judicial review proceedings under section 51(1) of the Senior Courts Act 1981. This raised a fundamental point of law as to whether the High Court’s general discretion to award costs in such proceedings was circumscribed by the principle established in Murphy v Media Protection Services [2012] EWHC 529, which held that costs in criminal causes or matters should only be awarded under the civil regime in exceptional circumstances [§24]. The Murphy principle had been followed in numerous subsequent cases, with the category of “exceptional circumstances” described as “very narrow indeed” [§34]. Importantly, in none of the cases since Murphy had a court found circumstances sufficiently exceptional to permit departure from the criminal costs regime [§34]. The Court had to decide whether the Murphy principle was correct or should be departed from, and if the discretion under section 51 was available, how it should be exercised in this case [§12].

The second issue related to the Claimant’s application for the costs of the criminal proceedings under section 19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 [§14]. This involved considering whether the Court should exercise the power of a District Judge (Magistrates’ Courts) under section 66 of the Courts Act 2003 to make an order for costs inter partes, and if so, whether such an order was appropriate on the facts and how the amount should be determined [§14].

The Parties’ Positions

The Claimant, represented by Adrian Darbishire KC and Stuart Biggs KC, contended that the Murphy principle was wrongly decided per incuriam and should not be followed [§6, 57]. It was submitted that the High Court retained its general discretion under section 51(1) of the Senior Courts Act 1981 to award costs in judicial review proceedings concerning criminal matters, without any requirement for exceptional circumstances [§6]. The Claimant argued that the Court should apply the usual principles under CPR Part 44, with the starting point that the successful party should recover costs from the unsuccessful party [§6-7]. In support, the Claimant relied on authorities such as R v Chief Magistrates, ex parte Osman (1990) Cr App R 313 [§35-41] and R (Chapter 4 Corp Dba Supreme) v the Crown Court at Southwark [2023] EWHC 1362 [§54], which demonstrated a practice of awarding costs under section 51 in criminal matters without reference to the Murphy principle. The Claimant also pointed to numerous other cases, both before and after Murphy, where the High Court had made costs orders in criminal matters applying the conventional approach under section 51 [§42]. For the criminal proceedings costs, the Claimant submitted that the findings in the substantive judgment established that Mr Westhead had engaged in unnecessary or improper acts, warranting an order under section 19 of the 1985 Act, and that the Court should exercise its powers under section 66 of the Courts Act 2003 to make that order rather than remitting it to the magistrates’ court [§7, 105].

The Interested Party, Mr Westhead, resisted both applications [§8]. He did not address the legal principles underpinning the Murphy principle but argued that the costs sought were excessive, highlighting the involvement of two King’s Counsel and multiple solicitors as disproportionate [§8]. He maintained that the private prosecution was in the public interest and that he had been let down by the magistrates’ court and other organisations [§8]. Mr Westhead also stated that he had agreed to the quashing of the summons but not to the reasons or a costs order, and contended he should not be penalised for an error by the District Judge [§8]. He concluded by stating that an adverse costs order would “break [his] spirit to carry on the fight for justice” [§9].

The Advocate to the Court, Mr Paul Jarvis KC, submitted that the Murphy principle was not wrong and should be followed [§11]. He argued that Parliament had enacted separate regimes for civil and criminal costs, and the High Court should only depart from the criminal costs regime in exceptional circumstances [§33]. He relied on subsequent authorities such as R (AB) v Uxbridge Youth Court [2023] EWHC 2951 (Admin) and Morjaria v Westminster Magistrates’ Court [2024] EWHC 178 (Admin), which had affirmed the Murphy principle and emphasised the narrowness of the exception [§29, 33-34]. Mr Jarvis described the rationale as ensuring that “Parliament intended that costs would only be awarded in a criminal cause or matter where such an award is in accordance with the statutory provisions applicable to such causes or matters” [§33].

The Court’s Decision

The Court held that the Murphy principle, as developed in subsequent cases requiring exceptional circumstances before civil costs could be awarded in criminal judicial review proceedings, was wrong and should not be followed [§82, 86-87, 107]. After conducting a detailed analysis of the legislative history and authorities, the Court concluded that the High Court’s power to award costs under section 51(1) of the Senior Courts Act 1981 was not ousted by the criminal costs regime in the Prosecution of Offences Act 1985 [§69-76]. The Court found that sections 18 and 19 of the 1985 Act, which govern inter partes costs orders in the criminal courts, do not apply to the High Court [§75]. There was no need to extend these provisions to the High Court because section 51 already allows for inter partes costs orders to be made in all proceedings before the High Court [§75]. As the Practice Direction (Costs in Criminal Proceedings) 2015 states: “The High Court is not covered by section 18 of the Act but it has complete discretion over all costs between the parties in relation to proceedings before it” [§75].

The Court further held that section 51(5) of the 1981 Act, which provides that nothing in subsection (1) shall alter the practice in any criminal cause, did not preclude the award of costs under the civil regime [§77-81]. The Court found there was no established practice at the time the 1981 Act was passed requiring costs in criminal matters before the High Court to be determined solely under the criminal regime [§78-80]. The decision in Osman demonstrated an established practice of awarding costs pursuant to the High Court’s general discretion in criminal matters [§78]. The Court concluded that the powers under the 1981 Act and the 1985 Act supplemented each other, as stated in Osman [§39, 73].

The Court was critical of how Murphy had developed, noting that the principle “emerged without any real argument, without citation of any relevant authorities and without any detailed reasoning” [§55-56, 82]. Stanley Burnton LJ’s judgment in Murphy stated the principle at paragraph 15 without providing any rationale for it, and paragraph 14 demonstrated it was not based on any authority nor had counsel been able to assist with the criteria to apply [§82]. The Court observed that had Osman been cited in Murphy and subsequent cases, and had courts been provided with the same opportunity to analyse the legislative provisions and full range of authorities, “we do not think that the Murphy principle would have developed in the way that it did” [§86].

The Court concluded: “To the extent that Murphy and subsequent cases have been treated as establishing an exceptionality requirement for making orders under section 51 in criminal matters, we think this is wrong and not to be followed. The High Court’s power to make inter partes orders under section 51 is preserved. That is a discretionary power and the court will decide how the discretion should be exercised in the circumstances of any particular case“ [§87].

Having decided that it had the power to make a costs order, the Court exercised its discretion under section 51 to order that the Interested Party pay the Claimant’s costs of the judicial review proceedings [§95, 98]. The Court applied the general rule under CPR 44.2 that the unsuccessful party should pay the costs of the successful party, noting that Mr Westhead’s conduct—including making a vexatious application, abusing the process of the magistrates’ court, and failing to comply with the duty of candour—justified the order [§93, 95-97]. The Court stated: “Given the findings in the substantive judgment, we see no reason why we should not exercise our discretion to make an order that the Interested Party pays the Claimant’s costs of the judicial review proceedings” [§95]. The Court emphasised: “The need for the judicial review proceedings and the way in which they were conducted arose overwhelmingly out of the conduct of Mr Westhead in seeking to maintain an unsubstantiated private prosecution” [§97].

The costs were to be assessed on the standard basis if not agreed [§99-100]. While recognising Mr Westhead’s misconduct in the criminal proceedings below, the Court considered that his conduct in the High Court—while involving “a dogged insistence on airing his belief that the Claimant was guilty of criminal wrongdoing“—did not cross the line into conduct sufficiently out of the norm to justify assessment on the indemnity basis [§100]. The Court noted its reservations about the scale of the costs claimed for the magistrates’ court proceedings (£235,922.11 including over 400 hours of solicitor time) and observed that the Costs Judge should bear these observations in mind when conducting the assessment of the judicial review costs, as significant additional work before issuing the judicial review claim would not be expected [§101].

For the costs of the criminal proceedings, the Court found that section 19 of the Prosecution of Offences Act 1985 was engaged, as Mr Westhead’s actions constituted an “unnecessary or improper act or omission” within the meaning of the section [§103]. The Court stated: “We consider that the way in which the application in the magistrates’ court was made amounts to ‘unnecessary or improper act or omission’ within the meaning of section 19 of the 1985 Act” [§103]. However, the Court declined to determine the amount of costs under regulation 3 of the 1986 Regulations, instead remitting the application to the magistrates’ court for that purpose [§106]. The Court reasoned: “We consider that determination of the amount of costs which Mr Westhead should be ordered to pay pursuant to the provisions of regulation 3 of the 1986 Regulations would be better dealt with in the magistrates’ court by a District Judge, experienced in dealing with applications for costs in proceedings in that court” [§106]. This approach was taken partly because the Court had not heard full submissions on the quantum, and partly because a District Judge would be better placed to assess the reasonableness of costs claimed for magistrates’ court proceedings [§106].

The Claimant’s undertaking not to seek the additional costs of pursuing the costs arguments was upheld, meaning that the costs of the costs hearing itself would not be recoverable from Mr Westhead [§102]. The Court considered this “an appropriate concession” given that the application involved detailed legal consideration in which Mr Westhead played a limited part, and a separate hearing was required because the Claimant was not in a position to make representations on costs at the original hearing [§102].

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Costs Capping Order | Court Sets Different Caps Despite Defendant’s Push For Parity In Facial Recognition Challenge

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The High Court’s decision in Thompson & Anor v Commissioner of Police of the Metropolis [2025] EWHC 2355 (Admin) demonstrates that costs capping orders under sections 88-89 of the Criminal Justice and Courts Act 2015 need not be set at identical levels.

Background

The claim for judicial review was issued on 24 May 2024 by Shaun Thompson and Silkie Carlo against the Commissioner of Police of the Metropolis. The claim initially challenged the lawfulness of the Defendant’s policy governing the deployment of Live Facial Recognition (LFR) technology. The proceedings were stayed by order of Sheldon J pending a review of that policy by the Defendant. Following the review, the original policy was withdrawn and replaced with a new policy dated 11 September 2024. The claim was subsequently amended to challenge the new policy, and the grounds relating to the old policy were withdrawn by consent.

On 30 April 2025, Mrs Justice Farbey granted permission for the Claimants to proceed on two amended grounds. Ground 1 alleged that the ongoing use of LFR breached the Claimants’ right to respect for private life under Article 8 of the European Convention on Human Rights because it was not “in accordance with the law”. Ground 2 alleged breaches of the rights to freedom of expression and assembly under Articles 10 and 11, on the basis that the interference was not “prescribed by law”. The Defendant did not resist the grant of permission, acknowledging the public importance of the issues.

At the permission stage, the court was also required to determine three interim applications made by the Claimants: an application to rely on expert evidence from Professor Martin Utley; an application for a costs capping order; and an application to rely on a third witness statement from Ms Carlo. This judgment deals solely with the determination of those applications.

Costs Issues Before the Court

The primary costs issue for determination was the Claimants’ application for a costs capping order under sections 88 and 89 of the Criminal Justice and Courts Act 2015. The parties agreed that reciprocal costs caps should be imposed. The dispute centred on the appropriate level of those caps. The Claimants sought an order capping their own liability at £40,900 and the Defendant’s liability at £107,700. The Defendant contended that both caps should be set at an identical figure of £107,700. The court was required to resolve this dispute by applying the statutory criteria, with particular focus on the financial resources of the parties.

The Parties’ Positions

The Claimants’ position was that the caps should not be identical. They argued that the statutory requirement was for reciprocal, not mirror, limits. They emphasised that their financial resources were limited. Ms Carlo is the Director of Big Brother Watch (BBW), a non-profit organisation which had agreed to indemnify the Claimants against an adverse costs award. Evidence was provided that BBW had raised £24,409 from crowdfunding (reducing to £23,299 after fees) and had secured an offer of £15,000 from Law for Change, totalling £40,900. It was argued that this was the maximum sum that could be raised through specific fundraising for the case. Further evidence from Lord Strasburger, Chair of BBW’s Board, stated that the organisation’s unrestricted funds of £235,221 were needed for core operational costs and that its reserves of £262,699 were below the recommended minimum. He stated that diverting funds to meet a costs award would be “completely irresponsible” and would jeopardise the organisation’s existence. The Claimants also argued that their legal team was working at significantly discounted rates and that a higher, identical cap would act as a disincentive to lawyers taking on public interest cases, thereby inhibiting access to justice.

The Defendant’s position was that the caps should be identical and set at £107,700. They submitted that BBW was effectively driving the litigation and should therefore be expected to deploy some of its own funds to pay for it. It was argued that a cap of £40,900, funded entirely by external donations, would allow the Claimants to litigate without meaningful financial constraint. The Defendant contended that the Claimants’ resort to expert evidence demonstrated a lack of concern for costs that would necessitate a costly response. The Defendant also relied on the principle that the public purse is not a “bottomless pit”, citing Good Law Project v Secretary of State for Health and Social Care, and argued that BBW was not impecunious, holding over £500,000 in combined unrestricted and reserve funds.

The Court’s Decision

The court allowed the application for a costs capping order but set the caps at different levels from those proposed by either party. On the Claimants’ costs liability, the court imposed a cap of £70,000. The court found that whilst it was appropriate to consider BBW’s financial resources, the organisation could reasonably be expected to contribute more than the £40,900 raised through specific fundraising. The court noted that BBW held £235,221 in unrestricted funds and £262,699 in reserves. Whilst acknowledging the importance of good governance and maintaining reserves, the court concluded that it was not unreasonable to expect BBW to make a strategic choice to prioritise the High Court litigation and take the risk of a “modest dip” in its reserves. The court found that a total cap of £70,000 struck a fair and just balance between the competing interests of access to justice and the call on public funds. The court was not satisfied that it would be reasonable for the Claimants to withdraw the claim if this cap were imposed.

On the Defendant’s costs liability, the court rejected the argument for identical caps and imposed a cap of £100,000. The court agreed with the Claimants that parity was neither necessary nor fair. The higher cap for the Defendant was intended to reflect the efficient and focused progress of the litigation whilst acknowledging the discounted rates at which the Claimants’ legal team was working. The court concluded that this moderate difference served the public interest.

The court also allowed the other two applications. Permission was granted for the Claimants to rely on the expert report of Professor Utley, to be considered de bene esse at the substantive hearing. Permission was also granted for the Claimants to rely on Ms Carlo’s Third Witness Statement, also to be considered de bene esse.

Implications for Costs Practice

This decision clarifies several important points for practitioners handling costs capping applications in judicial review cases.

The court will look beyond specific fundraising to assess the true financial resources available to support litigation. Campaign organisations cannot simply point to limited specific fundraising while holding substantial unrestricted funds. Good governance requirements for maintaining reserves will be recognised but will not automatically insulate those reserves from contributing to litigation costs.

The statutory requirement for “reciprocal” caps under section 89(2) does not mean identical caps. Courts will consider the relative financial positions of the parties and other relevant factors, including whether legal teams are working at reduced rates in the public interest.

Strategic arguments about deterring lawyers from public interest work carry some weight but will not override the court’s assessment of what each party can reasonably afford based on their actual financial resources.

For practitioners, the case reinforces the importance of providing comprehensive evidence about financial resources when seeking costs caps, while recognising that courts will expect applicants with significant organisational backing to contribute meaningfully to the costs risks they create through High Court litigation.

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SIAC Lacks Jurisdiction To Award Costs In Naturalisation Review Proceedings

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The costs issue in this case arose from proceedings in the Special Immigration Appeals Commission (SIAC) concerning an application for naturalisation as a British citizen. FGF had applied for naturalisation on 27 January 2020, which the Secretary of State refused on 16 February 2022 on good character grounds. The decision was certified under section 2D(1)(b) of the Special Immigration Appeals Commission Act 1997, meaning it relied on sensitive information that could not be made public.

FGF applied to SIAC for a review of this decision on 23 February 2022. He did not qualify for legal aid due to his financial circumstances exceeding the relevant thresholds. His solicitors and counsel agreed to represent him under a heavily discounted conditional fee arrangement.

On 2 August 2022, the Secretary of State withdrew the original decision to consider further evidence. SIAC served a notice on 11 August 2022, signed by Jay J, recording that FGF’s application was treated as withdrawn pursuant to rule 11A of the Special Immigration Appeals Commission (Procedure) Rules 2003.

Despite the withdrawal, FGF applied to SIAC on 12 June 2023 for his costs of the first review proceedings. The Secretary of State resisted the application on jurisdictional grounds, arguing that SIAC had no power to award costs. SIAC heard the costs application on 15 February 2024 and, in a judgment dated 23 February 2024, concluded it had jurisdiction and ordered the Secretary of State to pay FGF’s costs, with any detailed assessment to be transferred to the High Court if not agreed.

The Secretary of State challenged SIAC’s costs order by judicial review. Two additional interested parties, H7 and H15, were joined to the proceedings as they had pending costs applications in their own SIAC proceedings that would be affected by the outcome.

Costs Issues Before the Court

The High Court was required to determine two specific costs issues. First, whether SIAC has jurisdiction to award costs in cases where an applicant has applied under section 2D of the SIAC Act to have a naturalisation decision set aside. This raised fundamental questions about the scope of SIAC’s statutory powers and whether costs jurisdiction was incorporated within its review powers.

Second, and alternatively, whether SIAC has jurisdiction to award costs where an application under section 2D is withdrawn before determination. This issue specifically concerned the effect of rule 11A(2) of the SIAC Procedure Rules, which provides that an application for review shall be treated as withdrawn if the Secretary of State withdraws the underlying decision.

The court also had to consider a preliminary matter regarding whether judicial review was the appropriate remedy, given Mr Armstrong’s contention that the Secretary of State had an adequate alternative remedy by way of appeal to the Court of Appeal under section 7(1A) of the SIAC Act.

The Parties’ Positions

The Secretary of State, represented by Ms Giovannetti KC, argued that SIAC had no costs jurisdiction in review proceedings. She submitted that SIAC’s powers are entirely statutory and that Parliament did not confer a costs jurisdiction when enacting the review provisions in sections 2C-2F. She emphasised that section 6A of the Act demonstrated Parliament’s intention to provide the Lord Chancellor with power to make costs provisions through rules under section 5, and in the absence of such rules, SIAC lacked any costs power.

Ms Giovannetti contended that sections 2D(3) and 2D(4) should be read together as dealing with substantive judicial review orders under section 31 of the Senior Courts Act 1981, not the wider powers of the High Court such as the general costs powers under section 51. She highlighted that Parliament uses express language when conferring costs powers on tribunals, citing section 29(2) of the Tribunals, Courts and Enforcement Act 2007 as an example.

Regarding the withdrawal issue, Ms Giovannetti submitted that section 2D(4) only confers power where SIAC “decides that the decision should be set aside.” Once a decision is withdrawn, there is nothing to set aside, and SIAC’s role is limited to the administrative act of recording the withdrawal under rule 11A(3).

H7 and H15, represented by Mr Armstrong KC, invited the court to uphold SIAC’s reasoning. He argued that “the principles which would be applied in judicial review proceedings” in section 2D(3) included costs principles developed in judicial review case law. He submitted that the language of section 2D(4) – “any such order” and “any such relief” – could not be broader and must include costs orders.

Mr Armstrong argued it would be absurd for Parliament to replace judicial review in the High Court with a SIAC review framework without providing for costs. He acknowledged this would create one-way costs shifting but argued this was rational and not unprecedented. He also raised arguments under article 14 of the European Convention on Human Rights, contending that the inability to recover costs would discriminate against those forced to use SIAC rather than the High Court.

On the withdrawal issue, Mr Armstrong argued that once a costs power is established, there was no good reason why it should not extend to cases where the application is treated as withdrawn, relying on SIAC’s reasoning that it retained jurisdiction for consequential matters.

The Court’s Decision

The High Court allowed the judicial review claim, finding that SIAC had no jurisdiction to award costs. Dame Victoria Sharp and Mrs Justice Farbey DBE held that SIAC’s jurisdiction is entirely statutory, with no inherent powers, and that costs powers had not been conferred by the SIAC Act.

The court adopted a purposive approach to interpreting sections 2D(3) and 2D(4), reading them together. It held that these provisions were concerned with the substantive determination of judicial review applications and the orders flowing from such determinations, not with ancillary matters such as costs. The reference to “principles which would be applied in judicial review proceedings” meant principles for determining claims substantively, not principles relating to costs awards.

The court found that the proper source for any costs power would be section 5 of the Act, which empowers the Lord Chancellor to make rules conferring “ancillary powers” on SIAC. The absence of costs provisions in the current rules meant no such power had been conferred. The court explicitly rejected SIAC’s reasoning that the rules’ silence on costs meant section 5 was not the source of any costs power, distinguishing between the source of a power and the decision whether to exercise it.

Applying the reasoning from C7 v Secretary of State for the Home Department [2023] EWCA Civ 265, the court held that if SIAC was to have any power to award costs, it could only be conferred by rules made by the Lord Chancellor. The detailed statutory code governing SIAC’s procedural powers meant there was no room for an implied costs jurisdiction.

The court rejected arguments that the absence of costs recovery would breach access to justice principles, noting that many tribunals operate without costs powers and that this does not prevent them from doing justice. It also found no merit in the article 14 discrimination arguments, holding that no difference of treatment arose between those using SIAC and others in analogous situations.

On the withdrawal issue, the court held that even if SIAC had costs powers in successful reviews, these would not extend to withdrawn applications. Rule 11A(2) provides that applications “shall be treated as withdrawn” when the Secretary of State withdraws the underlying decision. This automatic effect leaves SIAC with no discretion and no judicial decision to make. The court found SIAC had erred in law by treating the service of a notice under rule 11A(3) as a judicial decision that could carry consequential powers.

The court emphasised that from the moment of withdrawal notification, the application is deemed withdrawn and any purported costs order would have no jurisdictional foundation. It rejected SIAC’s attempt to draw parallels with High Court procedures, noting there was “no analogue to rule 11A” in judicial review proceedings and that SIAC’s codified powers could not be equated with the High Court’s broader jurisdiction.

Mental Health Issues Don’t Equal Legal Incapacity | Court Criticises Ombudsman’s Conflation But Upholds Decision On Poor Costs Communication

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Background

The case of Aina Khan Law Ltd v The Legal Ombudsman & Anr [2025] EWHC 1319 (Admin) concerned a judicial review challenge by the claimant law firm against a decision of the Legal Ombudsman dated 12 February 2024. The Ombudsman had upheld aspects of a complaint made by the Interested Party (IP), requiring the claimant to repay £51,192.60. The central issue was whether the claimant had adequately assessed the IP’s capacity when taking instructions and conducting litigation on her behalf in family proceedings.

The IP had instructed the claimant in September 2020 following the breakdown of her marriage and allegations of child abuse against her husband. The claimant’s attendance notes recorded the IP’s mental health history, including a diagnosis of ADHD and prescribed amphetamines, as well as her distress and allegations of coercive control. Over time, concerns grew about the IP’s capacity, culminating in a psychiatric report by Dr Isaacs in December 2020 confirming she lacked litigation capacity due to a paranoid psychosis. The Ombudsman’s decision criticised the claimant for failing to assess capacity adequately from the outset and for excessive costs.

Costs Issues Before the Court

The court was required to determine whether the Ombudsman’s decision on costs was rational and lawful. The key costs-related issues were:

  1. Whether the claimant’s failure to assess the IP’s capacity properly rendered the retainer invalid, affecting the recoverability of fees.
  2. Whether the claimant provided adequate and timely costs updates to the IP, particularly after exceeding initial estimates.
  3. Whether the Ombudsman’s award of £51,192.60 (comprising a £35,500 refund for poor costs communication and a 20% reduction for the invalid retainer) was disproportionate or irrational.

The Parties’ Positions

Claimant’s Submissions:
The claimant argued that the Ombudsman’s decision was irrational, particularly in conflating mental health issues with a lack of capacity. It contended that the Ombudsman misconstrued Dr Isaacs’ capacity certificate, which did not conclusively state the IP lacked capacity from August 2020. The claimant also challenged the finding that costs updates were inadequate, asserting that informal updates were provided. It further argued the award was disproportionate to the firm’s turnover.

Defendant’s Submissions:
The Ombudsman maintained that its decision was rational and within its broad discretion under the Legal Services Act 2007. It emphasised that the claimant should have conducted a more thorough capacity assessment given the IP’s vulnerabilities. On costs, it defended the finding that the claimant failed to provide timely updates when estimates were exceeded, justifying the £35,500 refund. The 20% reduction was separately justified by the failure to assess capacity properly.

The Court’s Decision

The court held that the Ombudsman’s decision was irrational in part. Key findings included:

  1. Capacity Assessment: The Ombudsman erred by conflating mental health issues with a lack of capacity and failing to consider the nuanced context of the IP’s instructions. The claimant’s consultations with counsel and the IP’s psychiatrist were reasonable steps to assess capacity. The Ombudsman’s reliance on hindsight (Dr Isaacs’ December 2020 certificate) was flawed.
  2. Costs Updates: The Ombudsman’s finding that the claimant provided inadequate costs updates was not irrational. The claimant had failed to inform the IP promptly when costs exceeded initial estimates (£43,500 and £75,000).
  3. Remedy: The court quashed the £15,692.60 award (20% reduction) linked to the flawed capacity finding but upheld the £35,500 refund for poor costs communication.
  4. Costs of the Claim: The claimant was awarded 40% of its costs (£19,036), reflecting partial success and criticism of its late evidence filing.

The court refused permission to appeal, concluding the Ombudsman’s decision was irrational only in its approach to capacity, not in its broader reasoning on costs.

CA Decision | Aarhus Convention Costs Protection Inapplicable Where Claim Challenges Non-Environmental Law Despite Environmental Impact.

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Background

The case involved an appeal by HM Treasury and the Secretary of State for Business and Trade against a decision by Lang J that a judicial review claim brought by Global Feedback Limited (“GFL”) was an “Aarhus Convention claim” under CPR 46.24(2)(a), thereby attracting costs protection. The underlying claim challenged the legality of the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023, which implemented tariff preferences under a UK-Australia Free Trade Agreement. GFL, an environmental charity, argued these regulations would increase greenhouse gas emissions through “carbon leakage” from increased Australian beef production. The key costs issue was whether the claim fell within Article 9(3) of the Aarhus Convention as involving a challenge to acts contravening “provisions of national law relating to the environment”.

Costs Issues Before the Court

The central costs issue was whether the judicial review qualified as an Aarhus Convention claim under CPR 46, which would impose costs limits protecting GFL. This turned on whether the challenged decisions allegedly contravened provisions of UK law “relating to the environment” under Article 9(3). The appellants argued the Taxation (Cross-Border Trade) Act 2018 (under which the regulations were made) was not environmental legislation, while GFL relied particularly on section 28 requiring regard for international obligations including climate agreements.

The Parties’ Positions

The appellants contended Article 9(3) only applied where the contravened law’s purpose was environmental protection or regulation. They argued the 2018 Act concerned import duties, not the environment, and section 28 was a general provision requiring regard for relevant international obligations without specifying environmental aims. They distinguished Venn by arguing the planning context was unique in implementing environmental protection through policy.

GFL submitted that section 28’s requirement to consider UN climate agreements meant the claim involved contravention of national law relating to the environment. They argued this was analogous to Venn, where policies formed part of the environmental legal framework. The intervener WWF took a broader view that any law capable of affecting the environment engaged Article 9(3).

The Court’s Decision

The Court of Appeal allowed the appeal, holding the claim was not an Aarhus Convention claim. It analysed Article 9(3)’s language, confirming “relating to” required the national law’s purpose to be environmental protection or regulation. The travaux préparatoires and French text supported this interpretation, showing the original “national environmental law” wording was maintained in substance.

The Court distinguished Venn, noting planning legislation uniquely implemented environmental protection through policy. Section 28 of the 2018 Act was a general provision without environmental purpose. Mere public law errors concerning environmental effects did not engage Article 9(3) unless the contravened law itself had environmental aims. The Court disapproved the broader approach in Friends of the Earth, emphasising the need to focus on the purpose of the legal provision allegedly contravened rather than the decision’s environmental impacts.

As the 2018 Act’s provisions were not for environmental protection, and section 28 did not specifically require environmental considerations, the claim fell outside Article 9(3). Costs protection under CPR 46 therefore did not apply, though GFL could seek a costs protection order under alternative provisions.