The Administrative Court’s decision in Medis Pharma Ltd v NHS Resolution [2025] EWHC 2616 (Admin) clarifies when defendants adopting a “neutral” role in judicial review may nevertheless face costs liability, while providing a stern reminder of the consequences of failing to comply with court directions for filing skeleton arguments.
Background
The Claimant, Medis Pharma Ltd, sought judicial review of a decision dated 25 November 2024 made by a committee of Primary Care Appeals, a service provided by the Defendant, NHS Resolution. The committee had refused the Claimant’s application for inclusion in the pharmaceutical list for distance selling premises under Regulation 25 of the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 [§1], which would have permitted it to operate the distance selling of medicines for the NHS. The refusal was primarily based on the committee not being satisfied that the Claimant’s procedures were likely to secure the safe and effective provision of essential services, with particular concerns raised about maintaining the correct temperatures for medicines during the delivery process [§9-11].
Following the commencement of judicial review proceedings on 4 February 2025 [§14], the Defendant filed an Acknowledgment of Service indicating it would take a neutral stance in the proceedings, analogous to that of a court or tribunal, and requested that no order for costs be made against it, relying on the case of R (Davies (No 2) v HM Deputy Coroner for Birmingham [2004] EWCA Civ 207 [§15]. Permission for judicial review was initially refused on the papers on 10 April 2025, with no order as to costs [§16]. The Claimant renewed its application, and at an oral hearing on 17 June 2025, permission was granted on two grounds (Grounds 1 and 3 only) [§16]. The order from that hearing, processed on 25 June 2025, included directions for filing a hearing bundle no later than 21 days before the substantive hearing and a skeleton argument no later than 14 days before the substantive hearing, and a direction that the costs of the permission hearing be “costs in the case” [§17-18]. The Defendant subsequently applied to vary this costs order [§18].
Further procedural issues arose when the Claimant failed to comply with directions in the 25 June 2025 order regarding the filing of the hearing bundle and skeleton argument. The parties were notified on 4 July 2025 that the substantive hearing would take place on 1 October 2025 [§19]. The bundle was filed late on 26 September 2025 (16 days late), and the skeleton argument was filed on 30 September 2025 (13 days late), the day before the substantive hearing [§20, §25]. The bundle was also incomplete, omitting highly relevant documents including the Defendant’s Acknowledgment of Service and Summary Grounds, and suffered from pagination inconsistencies between the court’s bundle and counsel’s bundle [§25]. The substantive claim for judicial review was ultimately dismissed, with both Grounds 1 and 3 failing [§46, §49-50].
Costs Issues Before the Court
The court was required to determine two distinct costs-related procedural issues [§21]. The first was the Defendant’s application to vary the costs order made at the permission hearing on 17 June 2025 from “costs in the case” to “no order for costs against the Defendant irrespective of the outcome of the proceedings” [§18]. The second issue concerned the consequences of the Claimant’s failure to file its hearing bundle and skeleton argument in accordance with the court’s directions, which engaged the principles governing relief from sanctions [§22].
The Parties’ Positions
Regarding the variation of the permission hearing costs order, the Defendant contended that the Deputy Judge had made an error in ordering “costs in the case” and had likely overlooked the Defendant’s written request for “no order as to costs”. The Defendant maintained that its role in the proceedings was entirely neutral, as it had only made submissions to assist the court and had not actively resisted the claim, thus making the Davies principle applicable [§30].
The Claimant resisted the application to vary the costs order [§30]. While the specifics of its written submissions on this point are not detailed in the judgment, its position was implicitly that the original order should stand.
Concerning the late filing of documents, the Claimant, through its counsel Mr Fazli, explained that its solicitors had assumed that counsel who attended the oral permission hearing would proactively deal with drafting and filing the skeleton argument once sent the directions. They had not formally instructed him to do so, nor had they checked on progress as the deadlines passed [§27]. The Claimant did not make a formal application for relief from sanctions or an extension of time prior to the hearing; instead, it simply filed the late skeleton argument the day before the hearing [§24, §28].
The Court’s Decision
Variation of Permission Hearing Costs Order
The court dismissed the Defendant’s application to vary the costs order from the permission hearing [§30]. Deputy High Court Judge David Pievsky KC declined to assume that the permission judge had been unaware of or had overlooked the Defendant’s costs request. It was considered equally if not more likely that the permission judge was aware of the request but did not find the proposed order satisfactory [§30].
Furthermore, the court was not persuaded that the Defendant’s stance was entirely neutral. It noted that the Defendant’s Summary Grounds of Resistance had, at several points, sought to ‘push back’ on points made by the Claimant on issues of fact and alleged errors [§30]. The Defendant’s participation was limited and its submissions moderate and careful, but it was not entirely neutral [§30]. Consequently, the Defendant’s participation was not considered to have attained the same neutral status as a party who took no part at all, or who had merely responded saying it was neutral as to the outcome [§30].
The court also noted the Claimant’s subsequent breach of a court order, and decided that the appropriate course was to leave any final determination on the costs of the proceedings until the case’s conclusion [§30]. Following circulation of the judgment in draft, the parties ultimately agreed that there should be no order as to costs of the proceedings [§51].
Relief from Sanctions for Late Filing
On the issue of the Claimant’s failure to comply with court directions, the court applied the three-stage test from Denton v TH White Ltd [2014] EWCA Civ 906, as adapted for judicial review in R (Liberty) v SSHD [2018] EWHC 976 (Admin) [§22-23].
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- Stage 1 — Seriousness of breach: The court found the breach to be significantly more serious than the delays that had troubled the Divisional Court in Liberty [§26]. The skeleton argument was required to be filed by 17 September 2025 but was not filed until 30 September 2025, the day before the substantive hearing. The hearing bundle was due 21 days before the hearing but was not filed until 5 days before. The bundle was also incomplete, omitting highly relevant documents like the Defendant’s Acknowledgment of Service and Summary Grounds, and the pagination used for the court’s bundle was inconsistent with the pagination in counsel’s bundle [§25].
- Stage 2 — Reason for breach: The court found there was no good reason for the failures [§27]. The Claimant’s solicitors had assumed counsel would proactively draft and file documents after being sent the directions and notice of the hearing, but had not formally instructed him to do so or checked whether progress was being made as deadlines passed [§27]. Even on the basis of what the court was told, there was no good reason for the breach [§27].
- Stage 3 — All circumstances: The court considered several aggravating factors. The Claimant did not file any application for relief from sanctions or an extension of time once aware of the breach, instead simply filing the skeleton argument the day before the hearing as though no breach had occurred [§28]. As stated in Liberty, this approach is inappropriate: the litigant fails to face up to being in breach of a court order and presents the document as a fait accompli [§28].
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However, unlike in Liberty (where the Divisional Court ordered the defendants to pay the claimant’s costs of the extension application on an indemnity basis [§23]), a costs sanction was not workable here because the other parties had incurred no costs in relation to any application [§28]. The claim also could not be said to raise matters of wider public importance such as were engaged in Liberty [§28].
The court indicated it was minded to allow the Claimant to rely on the hearing bundle filed on 26 September 2025, but minded to refuse any extension of time for the skeleton argument filed on 30 September 2025 [§29]. Mr Fazli fairly conceded that no application for extension could realistically succeed [§29]. The court explained that this meant Mr Fazli would need to rely closely on the original Statement of Facts and Grounds (treating it as his skeleton argument) along with relevant bundle passages, rather than the late-filed skeleton [§29]. This was the approach taken [§29].
Costs In Withdrawn Judicial Review Claims
Costs Capping Order Judicial Review | Different Caps Set
CPR 3.14 | Late Costs Budget | Relief From Sanctions Denied
CPR 44.2 And The Courts’ Discretion As To Costs
Interested Party In Judicial Review Pays The Price For Unreasonable Resistance To Consent Order
CPR 47.12 | Setting Aside A Default Costs Certificate | Application Denied
