Royal Brompton & Harefield NHS Foundation Trust v Joint Committee of Primary Care Trusts & Ors (Costs)

The general rule is that an unsuccessful party pays the successful party’s costs. A departure is not justified merely because the successful claimant failed on other grounds, particularly where permission was granted to pursue those grounds after a contested hearing and the claimant obtained the relief sought. The court may consider the costs attributable to unsuccessful issues, but that consideration does not automatically warrant an issue-based reduction. A payment on account may be ordered where the court can confidently estimate the minimum recoverable costs.

The claimant had succeeded in its judicial review challenge to a consultation concerning the reconfiguration of paediatric congenital cardiac services, obtaining the relief sought on one ground while failing on six other grounds. The parties made written submissions on costs.

The claimant sought its costs, a payment on account and interest. The defendants argued for no order as to costs, principally because most issues had failed and the successful issue represented a relatively small proportion of the costs. The court determined whether to depart from the general costs rule and, if not, the appropriate payment on account and interest.

1. Costs order. Under CPR r 44.3(2), the general rule is that the unsuccessful party pays the successful party’s costs. The court must consider all the circumstances, including conduct and whether a party succeeded on only part of its case under r 44.3(4) and (5).
2. The fact that the claimant succeeded on only one ground did not justify departing from that rule. The court accepted that a claim confined to the successful ground would have required less evidence, disclosure and hearing time. However, Burnett J had granted permission to argue all the grounds after a fully contested hearing. It was therefore difficult to say that pursuing them had been unreasonable. Further, the claimant had obtained the relief sought, and failure on the other grounds had not affected the outcome.
3. The approach in Roache v News Group Newspapers Ltd [1998] EMLR 161 CA (Civ) was considered in assessing who had won in substance. The court did not need to decide the subsidiary issue of the costs of the oral permission hearing.
4. Payment on account. Applying the approach previously considered in SS Home Department v C [2011] EWHC 2513 (Admin), the court was confident that the claimant would recover at least two thirds of its solicitors’ assessed costs to judgment, stated as £377,300. The defendants were ordered to pay £250,000 on account within 28 days.
5. The defendants were also ordered to pay interest on the outstanding costs at 1% above Barclays Bank base rate from the dates on which the costs were incurred.