London and South East Railway Ltd & Anor, R (on the application of) v British Transport Police Authority

Costs in judicial review remain a matter for the court’s discretion. A successful claimant will ordinarily receive its costs, subject to control of excessive or unnecessary material. An intervenor will normally neither pay nor receive costs. That position may change where the intervenor has a distinct interest requiring protection or raises distinct issues. If those issues fail, the intervenor may receive only a proportion of its costs and may contribute to the successful party’s costs.

The claimants challenged demands made by the British Transport Police Authority under their contractual funding arrangements. The central issue was whether the Authority had power to override the relevant provisions. The judgment principally determined costs for the successful claimants and interested parties, and addressed the appropriate volume of material in judicial review proceedings.

1. The claimants succeeded and were entitled to all their costs. The Authority’s budgetary arrangements did not justify modifying that order.
2. The costs judge was directed to scrutinise excessive pre-action work and documentation. The duty of candour required adverse material to be placed before the court, but merely potentially relevant material could ordinarily be made available for inspection rather than lodged in full (paras [12]-[14]).
3. Applying the Bolton approach, an intervenor normally neither paid nor received costs. Arriva had reasonably intervened to protect its interests, but its additional unsuccessful arguments justified an award of 75 per cent of its costs (paras [16]-[24]).
4. Northern and Merseyrail’s unsuccessful arguments justified a 10 per cent contribution to the Authority’s liability, limited to post-intervention costs. Heathrow Express was ordered neither to pay nor receive costs.
5. The 21-day period for applying for permission to appeal ran from the date of judgment (paras [32]-[40]).

First-instance judicial review proceedings. No prior appellate decision is stated.