Thompson, R (On the Application Of) v Secretary of State for the Home Department

A legitimate expectation requires a sufficiently clear representation capable of producing the asserted expectation. A statement that costs would normally be paid did not create an expectation that costs would be paid in every case where the recipient was also told that an exceptional costs order was possible. The claimant’s informed understanding of that qualification, together with an earlier warning, defeated the claim. Procedural fairness required an opportunity to address an exceptional costs recommendation. That requirement was satisfied when the claimant was invited to make representations and the tribunal reconsidered its recommendation. The application was dismissed. Costs were apportioned according to the stages at which the claimant had a strong procedural fairness case and later pursued only the unsuccessful legitimate-expectation ground.

The claimant, a former police constable, sought judicial review of the Secretary of State’s decision that he should pay his own costs of an appeal against disciplinary findings and dismissal. The appeal tribunal had recommended that order, and the Secretary of State initially accepted it.

Following the commencement of judicial review, the Secretary of State offered the claimant an opportunity to make representations on costs. The tribunal reconsidered the matter and maintained its recommendation, which the Secretary of State confirmed. The claimant accepted that the procedural fairness issue had thereby fallen away. The remaining issue was whether statements by the force solicitor created a legitimate expectation that the police authority would pay his costs.

1. Legitimate expectation. The claimant had been told that the normal practice was for the police authority to pay the costs of an appeal, but he had also been advised that the tribunal could recommend that an appellant pay his own costs in exceptional circumstances. The tribunal chairman had given a further warning about possible costs implications. The claimant therefore could not reasonably have expected that his costs would be paid in every event. No legitimate expectation was established.
2. The court did not need to decide whether a representation by the interested party’s solicitor could in principle bind the Secretary of State. The claim failed on the facts because the necessary expectation had not arisen.
3. Procedural fairness. The original costs recommendation had been made without giving the claimant an opportunity to address the exceptional circumstances relied upon. That defect was cured when the claimant was invited to make detailed representations, the tribunal reconsidered the issue, and the Secretary of State then reached a fresh decision. The tribunal was entitled to maintain its recommendation.
4. Disposition and costs. The application was dismissed. The Secretary of State was ordered to pay the claimant’s costs up to 31 December 2002, when the stay and consent order were made. The claimant was ordered to pay the Secretary of State’s and interested party’s costs from 18 June 2003, when the amended grounds proceeded solely on legitimate expectation. Detailed assessment was directed if agreement could not be reached. A payment on account of £1,000 was ordered in favour of the Secretary of State.

This was a first-instance judicial review. Permission had previously been granted by Keith J, and a consent order was made on 31 December 2002 allowing representations on costs and reconsideration by the tribunal. The present court dismissed the remaining legitimate-expectation claim.