NISAR & ORS, R (ON THE APPLICATION OF) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2025] EWCA Civ 1646

Whether an SSHD deadline commitment creates a legal obligation for costs purposes turns on the language used. A commitment that a decision “will be made” by a specified date creates a binding obligation; an aspirational “aims to issue” target does not.

• Where a public authority unequivocally commits, in pre-action correspondence, to making a decision by a specified date absent special circumstances, that commitment may amount to a legal obligation. Failure to meet it without explanation can make the commencement of judicial review proceedings reasonable, even if the decision follows shortly afterwards.
• In costs disputes following the settlement of judicial review proceedings, whether a claimant is the successful party is a fact-sensitive assessment under M v Croydon. Obtaining a fresh decision does not of itself establish success; the court must consider whether the outcome is properly attributable to the proceedings or their threat.
• The requirement that a claim be causative of the relief obtained is a relevant factor in the costs discretion, but not a strict or mechanistic test. Causation may be established where the deadline given, backed by the threat of litigation, is reasonably viewed as having accelerated the making of the decision.
• Where delay is relied on as a distinct public law issue and was not raised in earlier pre-action correspondence, it will generally be reasonable to send a fresh Pre-Action Protocol letter before issuing proceedings. Failure to do so may justify departing from the general rule that costs follow the event.
• In exercising its discretion on costs where proceedings settle, the court will take into account the conduct of both parties. This includes whether either could reasonably have taken a simple step to avoid proceedings, such as giving advance notice of delay or making an enquiry before issuing a claim.