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

A judicial review claim that has become academic may be withdrawn, but withdrawal does not prevent the court from making an order for costs. Where the claimant persists with a claim despite a clear warning that it will become academic, and the authorities relied on are incapable of supporting the argument advanced, the defendant may appropriately receive its costs in full. The court may assess the amount on a broad-brush basis, reducing an excessive schedule while allowing reasonable counsel’s fees.

The claimant brought judicial review proceedings against the Secretary of State for the Home Department. Permission had been granted, but the defendant’s grounds of resistance stated that the claimant would acquire a right of settlement on 1 January 2012. The claim therefore became academic, and the claimant withdrew it shortly before the hearing.

The court was required to determine the consequential costs order. It considered the delay in withdrawal, the warning that the claim would become academic, the expenditure of judicial and court time, and the apparent lack of merit in the claim.

1. Withdrawal and costs. The claim had become academic because the claimant had acquired the relevant right of settlement. Its withdrawal did not prevent the court from determining costs.
2. Conduct of the claim. The warning that the claim was likely to become academic had been available for many months. The claimant nevertheless persisted until the day of the hearing. The defendant discovered only shortly before the hearing that the claim would not be pursued. The matter was too far advanced for the hearing to be avoided.
3. Merits. On consideration of the authorities relied on in the claim and the later authority EK v Turkey, none was remotely capable of sustaining the argument advanced. The claim was therefore doomed to fail on the merits, independently of its becoming academic.
4. Order. In all the circumstances, the defendant was awarded its costs in full. The schedule exceeded £4,500, but the court considered counsel’s fees reasonable and the remaining costs excessive. On a broad-brush assessment, costs were reduced to £3,490, with no VAT claimed.

Not stated in the judgment.