Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors

Where a public authority grants a judicial review claimant the relief sought after proceedings have been issued, the starting point is that the successful claimant should recover costs. If the claimant has complied with the relevant pre-action protocol and the defendant has not, the defendant bears a heavy burden to justify a different order.

The Boxall guidance remains applicable, but must be applied consistently with the costs rules and the importance of pre-action compliance. A court must assess the merits when costs are determined, while considering the parties’ conduct throughout. It must not too readily make no order as to costs merely because the public authority settled, faces resource constraints, or the claimant is publicly funded.

Five asylum applicants brought judicial review claims seeking permission to work or indefinite leave to remain. The Secretary of State granted the substantive relief during the proceedings and the claims were withdrawn by consent. High Court judges then made no order as to costs.

The applicants appealed. Their cases concerned the effect of an earlier Court of Appeal decision in ZO and Others v Secretary of State for the Home Department [2009] EWCA Civ 442, pending the Secretary of State’s appeal to the Supreme Court, and the proper approach to costs where judicial review proceedings settle after issue. A preliminary issue was whether the consent orders, which provided for costs to be decided on written submissions, excluded an appeal.

1. The appeals were allowed. The consent orders did not exclude the Court of Appeal’s statutory jurisdiction to hear appeals from High Court costs orders. A procedural agreement that a judge should decide costs on written submissions could not remove a substantive right of appeal without clear and express words. Section 16 of the Senior Courts Act 1981 therefore applied.
2. The merits relevant to costs fell to be assessed when the costs application was determined, not only when proceedings began. The court nevertheless had to consider the whole history, including the conduct of both parties before and after proceedings were issued.
3. The starting point under the Civil Procedure Rules 1998 was that a successful party receives costs. The Boxall guidance remained a useful guide, but did not permit a mechanical resort to no order as to costs. Where an adequately formulated pre-action letter had not received an adequate response, the claimant was entitled to issue proceedings. If the claimant then obtained the relief sought or substantially similar relief, costs would ordinarily follow.
4. Compliance with a pre-action protocol was highly material. A defendant which conceded material relief only after issue, having failed to comply with the protocol, bore a heavy burden to justify departure from the ordinary costs order. A public authority had no special exemption because of workload or resources. Nor could the fact that a publicly funded claimant’s lawyers might receive some remuneration justify refusing an otherwise proper costs order.
5. The Secretary of State was bound to apply the Court of Appeal’s decision in ZO and Others v Secretary of State for the Home Department [2009] EWCA Civ 442 unless it was stayed or overturned. The applicants could not be required to await the Supreme Court’s judgment. The suggestions that relief had been granted for unrelated or purely pragmatic reasons were unsubstantiated. The fallback position in Boxall was therefore unjustified, and the Secretary of State was ordered to pay the applicants’ costs in each case.

• Court of Appeal (Civil Division): Allowed the applicants’ appeals and substituted costs orders against the Secretary of State.
• High Court (Administrative Court): Following consent orders resolving the judicial review claims, different High Court judges made no order as to costs.