Hiscox, R (on the application of) v Secretary of State for Work & Pensions

A judicial review challenging a liability order requires a clearly formulated and evidenced case demonstrating that the amount ordered was incorrectly calculated. A claimant cannot establish unlawfulness merely by identifying differing figures in correspondence or by asserting that an explanation is incomplete.

A mandatory order requiring further calculations also requires a properly advanced claim and evidence that the public authority was in default when proceedings were issued. Where the claim fails, costs ordinarily follow the event. A wasted costs order requires conduct meeting the high threshold under 48.7 of the CPR, which is materially more than negligence.

Mr Hiscox sought judicial review of a liability order obtained by the Secretary of State for Work and Pensions, followed by a charging order. The claim alleged that the liability order had been miscalculated and sought further calculations concerning later reassessments.

Permission was granted on the issue whether there had been a miscalculation which had not been fully rectified. The court considered whether the claimant had established an error in the liability order or a basis for a mandatory order. The Secretary of State also sought costs, including wasted costs arising from errors by the claimant’s solicitors.

1. Claim dismissed. The central challenge to the liability order was not made out. The claimant relied principally on an unexplained credit of £2,911.50, but produced no positive evidence establishing that the figure was correct or demonstrating that the Secretary of State’s calculations were wrong. That was insufficient to establish that the liability order figure was incorrect.
2. Later reassessments and differing figures did not, without more, undermine the liability order, which concerned an earlier period. The claim form did not properly advance a case that the Secretary of State was in continuing default by failing to provide calculations, and there was no evidential basis for a mandatory order either when the claim was issued or at the hearing.
3. The defendant was entitled to ordinary costs in relation to the unsuccessful claim. The court assessed those costs broadly at £4,000.
4. A wasted costs order was justified in respect of serious administrative and litigation-conduct failures by the claimant’s solicitors. The applicable threshold under 48.7 of the CPR was high and went beyond negligence. The relevant costs were assessed at £2,000 after excluding items that did not properly belong to that part of the application.

The judgment does not state any appeal from this decision.