London Borough of Richmond, R (on the application of) v Secretary of State for Transport, Local Government and the Regions

Where judicial review proceedings are resolved by agreement before the merits have been fully argued, the court should avoid determining or implying a final view on the substantive dispute. If the court cannot fairly assess which party would have succeeded, costs should not reflect the apparent merits. Each party may be ordered to bear its own costs, particularly where the agreed resolution involves concessions on both sides.

The claimant challenged a consultation paper concerning night-flight restrictions at Heathrow, Gatwick and Stansted. It argued that the Secretary of State had unlawfully fettered his discretion by treating ICAO noise certification data as conclusive and by failing to consult on operational noise.

During the substantive hearing, the court indicated that the consultation paper appeared to require ICAO data to form the basis of assessments, but did not prevent consideration of other relevant operational-noise information. The parties then agreed an order providing that the Secretary of State could have regard to operational noise, and the proceedings were stayed. The court therefore determined only the parties’ applications for costs.

1. The substantive challenge was resolved by agreement before full argument had been heard. The agreed order provided that the Secretary of State was entitled to have regard to the operational noise of aircraft, and not merely to ICAO certification data, when formulating operating restrictions.

2. The court considered that the claimant’s initial interpretation of paragraph 7.9 of the consultation paper involved a misunderstanding. The paragraph did not appear to direct the Secretary of State to treat ICAO figures as accurate or conclusive. Rather, the figures had to form the basis of the relevant assessments, while other relevant information about operational noise could also be considered.

3. That view was provisional. The judge stressed that full argument had not been heard and that there remained arguments on both sides. He was not able to say which party would ultimately have succeeded on the alleged fettering of discretion.

4. It would therefore have been inappropriate to make a costs order reflecting the merits of either party’s position. In view of the agreed resolution and the concessions made by both parties, the appropriate order was that each side should bear its own costs.