Chorion Plc, R (on the application of) v Westminster City Council

Where a claimant discontinues judicial review proceedings after obtaining the principal relief sought, the court may nevertheless apportion costs by reference to the issues, but any such application should be made at the discontinuance hearing. Questions habitually decided by the trial judge, including issue costs, should be resolved before judgment is handed down and the order is sealed. The later assessment of costs is a distinct process and does not ordinarily permit reconsideration of whether the successful party should receive all or only part of its costs. In the absence of exceptional circumstances, a party cannot reopen a costs decision by relying on a submission which could have been made earlier.

Chorion plc brought judicial review proceedings challenging Westminster City Council’s policy for public entertainment and late café licences. After the Council changed the policy, Chorion sought permission to discontinue and an order for its costs. The deputy High Court judge granted discontinuance and awarded costs against the Council. The sealed order directed payment of Chorion’s costs, subject to assessment if not agreed.

At a later hearing, the judge made a further order limiting the costs to those attributable to one issue concerning variation of licences. Chorion appealed. The central issue was whether the judge had jurisdiction to make that inconsistent order after the earlier judgment and sealed order.

1. Appeal allowed. The Court of Appeal discharged paragraph 2 of the order made on 12 November 2001. The appellants were entitled to their costs, agreed at £8,404.
2. Per Lord Justice Pill, the order that the Council pay Chorion’s costs, subject to assessment if not agreed, clearly meant all the costs awarded, not costs relating only to one issue. Assessment of costs is different from deciding whether a party should receive all its costs or only a proportion or issue-based costs.
3. The principle identified by Lord Woolf MR in Phonographic Performance Ltd v AIE Rediffusion Ltd [1999] 1 WLR 1507, that the courts may make separate orders reflecting the outcome of different issues, can apply where a claimant discontinues after obtaining substantial relief. Any such question should be raised at the hearing of the application for discontinuance.
4. The court should consider the merits and relevance of the other issues in the particular case. Issue costs do not follow automatically merely because the claimant discontinued after obtaining relief on one issue.
5. Per Sir Martin Nourse, questions such as apportionment and issue costs are ordinarily for determination by the trial judge and should be addressed through all submissions available at the relevant hearing. Save in exceptional circumstances, a party cannot reopen the decision after judgment has been handed down, particularly after the order has been sealed.

• Court of Appeal (Civil Division) — appeal allowed against the deputy High Court judge’s order of 12 November 2001; the later issue-costs limitation was discharged.
• Queen’s Bench Division — Mr Jack Beatson QC, sitting as a Deputy High Court Judge, granted permission to discontinue the judicial review proceedings and initially ordered the Council to pay Chorion’s costs, subject to assessment. A later order limited those costs to one issue.