Brooke & Ors v The Parole Board

An issue-based costs order may be made even where successful claimants obtain the same relief they would have obtained had every argument succeeded. The relevant question is whether unsuccessful issues caused substantial additional costs. Where a claim concerns a complex relationship or matrix which must be examined as a whole, and unsuccessful points did not significantly increase the costs of the exercise, an unrestricted order for costs is appropriate. Separate preparation for an unmeritorious and independent challenge may justify a proportionate reduction. Costs may also be limited to the issue on which a claimant succeeded, with remaining costs reserved.

The court dealt with consequential matters following its judgment on challenges concerning the independence of the Parole Board and related issues. The claimants had succeeded on the central independence issue, while some arguments had failed. One claimant, Murphy, had also pursued a separate challenge to the reasons for the decision, which the court considered unfounded. The defendants sought percentage reductions in the claimants’ costs. The court also considered applications for permission to appeal and for a stay of the declarations and costs order pending appeal.

1. Costs principles. The court accepted that it had ample power to make an issue-based costs order even where the successful party obtained the same declaration that would have followed from success on every point. The relevant consideration was whether substantial costs had been incurred on unsuccessful issues.
2. For Brooke, Ter-Ogannisyan and O’Connell, the claim concerned a complex matrix governing the relationship between the Parole Board and the Secretary of State. That relationship could not sensibly be examined without considering the whole body of evidence. The relatively few unsuccessful points had not significantly increased the costs of the exercise. The proper order was therefore full costs, unrestricted by percentage or issues. The decision in Munjaz v Mersey Care Nation Health Trust and Ors [2003] 3 WLR 1505 supported that conclusion, although the court would have reached it without that assistance.
3. Murphy had pursued a separate reasons challenge for which there was no proper basis. It had not increased the hearing costs but had increased preparation costs to some extent. The recoverable costs were therefore limited to 90 per cent.
4. In O’Connell’s case, costs were awarded only for the independence issue. Costs relating to the remaining issues were reserved until their final determination.
5. Permission to appeal was granted. The court considered the matter potentially important and the proposed grounds arguable, despite the absence of draft grounds. The declarations and costs order were stayed pending appeal.

This was a first-instance consequential judgment following the court’s earlier decision on the judicial review claims. Permission to appeal to the Court of Appeal was granted, with a stay of the declarations and costs order pending appeal.