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

Where a judicial review becomes academic following a change of government already committed to repealing the challenged legislation, the court may find no causal link between the proceedings and the outcome, precluding costs recovery despite the claimant achieving their substantive objective.

PCSU V SECRETARY OF STATE FOR THE HOME DEPARTMENT [2025] EWCA Civ 1644

In R (Public and Commercial Services Union) v Secretary of State for the Home Department the Court of Appeal dismissed an appeal against an order of no order as to costs following the discontinuance of a judicial review challenge to the Strikes (Minimum Service Levels: Border Security) Regulations 2023. After a general election, the incoming government—which had pledged while in opposition to repeal the underlying Act—confirmed it would not exercise the challenged powers pending repeal. The union sought costs, arguing it had achieved the relief sought. Applying R (M) v Croydon LBC, the Court held that causation between the litigation and the outcome is critical in settled claims. Following Speciality Produce Ltd v Secretary of State for the Environment and ZN (Afghanistan) v Secretary of State for the Home Department, the Court found the outcome would have occurred irrespective of the proceedings due to the clear pre-election commitment. The minister’s description of the regulations as “unduly restrictive” reflected political policy, not a concession of legal merit. The appeal was dismissed.

I accept the submission of Mr Skinner that the commitment of the Labour Party to repeal or revoke the restrictions imposed in 2023 was so clear that there was good reason to believe it would have come about in any event, even if PCSU had not issued their claim for judicial review. In other words, using the terminology of Singh LJ in the ZN (Afghanistan) case, the outcome was achieved for an ‘extrinsic reason’; or the likelihood is that, in the words of Males LJ in Parveen, it ‘would have happened anyway’. As in R (RL) v Croydon, the Claimant got what it wanted, but it has not shown that it got what it wanted, or even got it more quickly, because of the issue of the claim.

Citations

Roache v News Group Newspapers Ltd [1998] EMLR 161 The Court of Appeal stated it may only interfere with a costs decision if the judge erred in principle, disregarded relevant factors, or reached a plainly wrong decision. Burgess v Lejonvarn [2020] EWCA Civ 114; [2020] 4 WLR 43 Affirmed the approach in Roache, reaffirming that appellate courts should be slow to interfere with first-instance costs decisions unless there is a clear error of principle or irrationality. R (Parveen) v Redbridge LBC [2020] EWCA Civ 194; [2020] 4 WLR 53 Emphasised that causation is critical in deciding costs in judicial review cases that become academic, particularly whether the outcome would have occurred regardless of litigation. R (M) v Croydon LBC [2012] EWCA Civ 595; [2012] 1 WLR 2607 Laid out principles for costs awards in public law cases, stressing that a claimant who obtains the relief sought, even via settlement, is ordinarily entitled to costs unless special reasons apply. Speciality Produce Ltd v Secretary of State for the Environment [2014] EWCA Civ 225; [2014] C.P. Rep 29 Held that where a claimant pursued two routes and succeeded via one, they could not recover costs for the other without showing it would have succeeded and was causative of the outcome. R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415; [2016] 1 WLR 4853 Confirmed that in public law cost decisions, success must be linked to causation, and courts must avoid detailed mini-trials to determine who would have won. R (RL) v Croydon LBC [2018] EWCA Civ 726; [2019] 1 WLR 224 Found that simply achieving relief is not enough for costs; the litigation must have caused that outcome, and if that cannot be determined summarily, no order may be appropriate. ZN (Afghanistan) v Secretary of State for the Home Department [2018] EWCA Civ 1059; [2018] 3 Costs L.O. 357 Held that claimants cannot be regarded as successful in costs where litigation did not cause the relief; administrative failings unrelated to the legal claim do not justify an award.

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Key Points

Where a judicial review claim is settled or withdrawn after the defendant has taken a step which corresponds to the relief sought, the claimant will not automatically be entitled to costs. The claimant may be treated as the successful party where they obtain substantially all the relief sought and there is no dispute that the litigation caused or materially contributed to that outcome.
The fact that a claimant obtains the desired outcome does not of itself entitle them to costs. It must be shown that the bringing of the proceedings caused or contributed to the result. If the outcome would have occurred in any event for reasons extrinsic to the litigation, this may be a relevant and sometimes decisive factor against an award of costs.
In assessing success following a settlement or withdrawal, the court may consider whether it is “tolerably clear” that the claimant would have succeeded had the matter proceeded to a contested hearing. Where that threshold is met, it will usually provide strong support for an award of costs.
Where a claim becomes academic for reasons extrinsic to the litigation, such as a change of government policy pursuant to a pre-existing political commitment, and the claimant cannot show a causal link between the proceedings and the concession, there is no prima facie entitlement to costs and a no-order outcome may be justified.
The court’s discretion on costs following settlement or discontinuance must be exercised rationally and in accordance with established principles. An appellate court will only interfere where the judge has erred in principle, taken into account irrelevant matters, failed to consider relevant matters, or reached a decision that is wholly wrong.

"The decision in M represents an acceptance that there will be cases where the link between the claim and the agreed relief is so clear that the claimant can properly be treated as the successful party for the purpose of an award of costs. But for that link to be established the court is, I think, usually required to be satisfied that the claimant is likely to have won: see Lord Neuberger at [51] of M. In any event, the claim must be causative of the relief obtained."

Key Findings In The Case

The court found that the claim became academic due to political reasons—specifically, the change in government policy following the 2024 general election—and not because the judicial review proceedings themselves caused or contributed to the outcome sought by the claimant union [21], [42].
The incoming Government’s decision to repeal the 2023 Act and not to use the Minimum Service Level Regulations in the interim was based on a long-standing political commitment by the Labour Party, and not on any concession prompted by the claim brought by the PCSU [15], [43], [47].
The claimant was not found to be the “successful party” in the context of costs because it did not obtain the desired outcome (withdrawal or non-use of the regulations) as a direct result of the litigation; the decision to repeal was instead attributed to extrinsic political factors, independent of the claim [30], [44], [47].
The judge considered that the Minister’s letter to PCSU could not be interpreted as an implied admission that the Regulations were unlawful, or that the claimant’s legal arguments would have succeeded at trial, thus there was no basis to infer causation between the litigation and the change in government policy [46].
The court held that, in the absence of clear evidence or a “tolerably clear” likelihood that the claimant would have succeeded at a full hearing, and given the lack of a demonstrated causal link between the claim and the relief obtained, the judge was entitled to exercise his discretion by making no order as to costs [22], [25], [44], [48].

"I do not accept the argument on behalf of PCSU that the Minister's letter amounts to an admission that the claim was soundly based in law or that it would have succeeded at a trial. The use of the phrase 'unduly restrictive' is the only specific reference in the letter on which the Appellant relies, and I do not consider that it will bear the legal weight which Ms Apps sought to place on it."

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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