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

Where judicial review proceedings are compromised, the court should decide costs by a broad-brush assessment rather than effectively trying the underlying issues. If the papers show that one party has obviously achieved substantial success because of the proceedings, costs should ordinarily follow that success. If the evidence does not permit that conclusion without difficulty, the usual fallback is no order for costs. A party who obtains substantial success may nevertheless receive only a proportion of its costs where the compromise leaves important issues unresolved.

The claimant, an Iranian national detained pending possible deportation, brought proceedings challenging the lawfulness of his detention. Shortly before the hearing, the Secretary of State agreed to release him. The parties compromised the substantive proceedings but asked the court to determine costs.

The central issue was whether the claimant’s release constituted substantial success caused by the proceedings, and, if so, what proportion of his costs should be recovered.

1. Costs after compromise. The court should not embark upon a trial of the underlying issues merely to decide costs after detailed proceedings have been compromised. The proper approach is a broad-brush assessment.
2. The approach identified in R (Boxall) v Mayor and Burgess of the London Borough of Waltham Forest required the court first to ask whether, on a reasonable assessment of the papers, one party had obviously achieved substantial success by virtue of the compromise. If that could not be established without undue difficulty, the appropriate fallback would generally be no order for costs.
3. The claimant’s release from detention amounted to substantial success. Although the court had no direct evidence of the Secretary of State’s motivation, the timing and circumstances made it reasonable to conclude that the proceedings were a highly material factor in bringing about the release.
4. The claimant had not been wholly successful. The proceedings were not continued, and the court therefore made no finding that any earlier period of detention had been unlawful. A broad-brush assessment was required rather than an issue-by-issue allocation.
5. The defendant was ordered to pay two-thirds of the claimant’s costs, to be taxed on the standard basis if not agreed.

Not stated in the judgment.