The Queen (on the application of Association of Pharmaceutical Importers) v Secretary of State for Health

The normal rule in judicial review proceedings is that an interested party separately represented alongside the respondent does not receive its costs. That practice is not inflexible. Costs remain in the discretion of the court, and exceptional circumstances may justify an award where the party has a distinct and substantial interest in the litigation, faces unusually large financial consequences, or would otherwise be exposed to conflicting proceedings.

The appeal concerned the costs payable to the Association of the British Pharmaceutical Industry, which had participated as an interested and directly affected party in judicial review proceedings brought by the Association of Pharmaceutical Importers against the Secretary of State for Health.

The Association had been awarded its costs below. On the appeal, the appellants argued that the usual approach in judicial review, where several parties oppose the application, was that only the Secretary of State should receive costs. The issue was whether the Association’s separate representation and particular financial and legal interests justified a costs order in its favour.

1. The application for costs was granted. The appellants were ordered to pay the costs of the Association of the British Pharmaceutical Industry on the appeal.
2. The ordinary practice in judicial review proceedings involving multiple representation is that the respondent receives its costs, while another party opposing the claim does not. However, that practice is not an inflexible rule. The fundamental position is that costs are always in the discretion of the court, as explained in Bolton MDC v The Secretary of State for the Environment [1995] 1 WLR 1176.
3. Exceptional circumstances existed. The Association was directly affected by the relief sought, had been subject to disclosure, and faced a very substantial potential damages claim for alleged infringement of Article 81 if the judicial review succeeded.
4. The Association was justified in participating in both courts. Although it might not technically have been bound had it not joined the proceedings, leaving it to later litigate the issue risked inconsistent decisions and was unattractive and unrealistic.
5. Separate representation was appropriate because the Secretary of State and the Association had opposed interests in relation to the consensual agreement known as the PPRS. They might also have wished to make different submissions if a reference to the European Court had arisen.

Lord Justice Aldous and Lord Justice Ward agreed with Lord Phillips MR.

• Court of Appeal (Civil Division): The court considered an application for costs on the appeal and ordered the appellants to pay the costs of the Association of the British Pharmaceutical Industry.
• Queen’s Bench Division: The Association had participated as an interested and directly affected party and had been awarded its costs below.