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Where a judicial review claim is settled or withdrawn after the defendant has taken a step which corresponds to the relief sought, the claimant will not automatically be entitled to costs.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.
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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.
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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.
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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.
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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.
