Veja, R (on the application of) v Secretary of State for the Home Department

Where judicial review proceedings end without a substantive determination, the court retains jurisdiction to decide costs. The court should do justice between the parties while avoiding unnecessary examination of issues that have become academic. It may assess the apparent merits of the claim to the extent justified by the circumstances, costs at stake and parties’ conduct. Where it is unclear which party would have succeeded, the ordinary outcome is no order as to costs, subject to a good reason for a different order. Delay, inadequate responses and a late concession may justify a partial costs order.

The claimants challenged refusals of entry clearance for a proposed nanny, alleging unreasonable exercise of discretion and flawed consideration of compassionate circumstances. They also relied on an alleged legitimate expectation that a minister would consider the matter personally following communications with Members of Parliament.

Permission for judicial review had been granted by Sullivan J. Before the substantive hearing, the Secretary of State arranged for the current minister to meet the claimants’ constituency MP and reconsider the matter. The claimants agreed to withdraw the claim on terms preserving any later appeal, but the parties disputed costs. The central issue was the appropriate costs order where the claim had concluded without a trial.

1. The claim was withdrawn without a determination of the substantive grounds. The arrangements for a ministerial meeting and reconsideration substantially provided the practical relief sought. The claimants retained the ability to pursue an appeal against the original refusal if reconsideration did not result in entry clearance, without objection on delay.
2. The court adopted the principles stated by Scott Baker J in Alexandrina Boxall and Brian Boxall v Mayor and Burgesses of the London Borough of Waltham Forest: the court has power to make a costs order when proceedings conclude without trial; the overriding objective is to do justice without unnecessary court time and cost; the court may consider the likely merits to an extent dependent on the circumstances; and, absent good reason, the usual order is no order as to costs.
3. The court could not conclude that the judicial review would clearly have succeeded or failed. The alleged legitimate expectation arising from ministerial and parliamentary communications raised a difficult question, and the reviewability of the original refusal and the later reconsideration letter was also uncertain.
4. The Secretary of State’s late agreement to a ministerial meeting, together with limited responses and delays in dealing with the claimants’ communications, justified some contribution to costs. Those circumstances did not justify recovery of the whole costs of the proceedings.
5. The Secretary of State was ordered to pay half of the claimants’ costs.

The judgment records that Sullivan J granted permission for judicial review. The substantive claim was later withdrawn by agreement on terms preserving a possible appeal against the entry-clearance refusal. No appellate decision is stated.