Courts may order costs against defendants in judicial review proceedings even where they adopt a broadly neutral stance, if their written submissions actively contest factual or legal points rather than simply assisting the court on jurisdictional matters.
- A party whose participation in proceedings is limited to making moderate and careful written submissions that assist the court, but which also seek to ‘push back’ on points made by the opposing party, may not be considered entirely neutral, and a ‘no order as to costs’ outcome is not automatically guaranteed. [30]
- An application to vary a costs order made at an interim hearing will not be granted on the basis that the original judge likely overlooked a submission, where it is equally plausible that the judge considered the submission but was not persuaded by it. [30]
- The failure to file a skeleton argument in accordance with a court order is a significant breach, and a party seeking to rely on a late-filed skeleton must apply for relief from sanctions; merely filing the document on the eve of the hearing as a fait accompli is inappropriate. [24, 26, 28]
- When considering relief from sanctions for the late filing of a skeleton argument, the court may, in the absence of a good reason for the breach and where the other party has not incurred costs, refuse an extension of time but permit the advocate to rely on their original grounds and the hearing bundle. [28, 29]
- A party’s assumption that counsel will proactively comply with a court direction without formal instruction or subsequent oversight does not constitute a good reason for a breach of that direction. [27]
