Broom, R (on the application of) v Secretary of State for Justice

Where a public authority revises its position after permission to appeal and the claimant achieves the practical result sought, the claimant will ordinarily receive the appeal costs unless the authority shows good reason for another order. That practical success does not automatically determine the costs of proceedings below. Where the merits of the unresolved appeal cannot safely be assessed without full argument, particularly when the case falls between obvious outcomes, the court may replace an adverse first-instance costs order with no order as to costs.

The appellant, a prisoner serving a discretionary life sentence, challenged the refusal of a Safeguarding Children Panel to return family photographs held in prison. His judicial review claim was dismissed by His Honour Judge Behrens, with an order for costs against him: [2010] EWHC 2695 (Admin). After permission to appeal was granted, the respondent reconsidered the matter and returned the photographs. A consent order dismissed the appeal and reserved the costs issues. The Court of Appeal therefore considered the appellant’s entitlement to the appeal costs and whether the costs order below should be varied.

Disposition. The appeal had been dismissed by consent after the respondent reconsidered the decision and returned the photographs. The remaining issues concerned the costs of the appeal and of the proceedings below.

1. Because the appellant had for practical purposes succeeded in the appeal, the starting point was that he should receive his appeal costs unless the respondent showed good reason for a different order. The uncertainty of the outcome of a contested appeal did not justify departing from that starting point. The respondent was ordered to pay the appeal costs.
2. Practical success on the appeal did not automatically carry the costs of the judicial review proceedings below. The court had to consider separately whether the appellant would probably have succeeded had the appeal been contested. That could not safely be determined here without full argument. Attempting to predict the result in a case lying between the obvious ends of the merits spectrum could lead to error.
3. The guidance in R (Boxall) v LB of Waltham Forest (2001) 4 CCL Rep 258, endorsed in R (on the application of Scott) v London Borough of Hackney [2009] EWCA Civ 217, required a reasonable and proportionate assessment of the likely outcome, having regard to the circumstances, costs at stake and conduct of the parties. No order as to costs was the fallback, but it should not be adopted too readily or in a way that discourages settlement.
4. The appellant had failed before Judge Behrens, and the grant of permission had expressly given no encouragement as to the appeal’s prospects. It was therefore inappropriate to award him the costs below, but unjust to leave the hostile costs order in place after his substantive success. The order below was varied to provide no order as to those costs.

• Court of Appeal (Civil Division). The appeal was dismissed by consent after the respondent reconsidered the decision and returned the photographs. The appellant received the costs of the appeal, and the lower-court costs order was varied to provide no order as to costs.
• High Court of Justice, Queen’s Bench Division, Administrative Court. His Honour Judge Behrens refused the application for judicial review and ordered the claimant to pay the defendant’s costs: [2010] EWHC 2695 (Admin).