TH (Iran), R (on the application of) v East Sussex County Council

An appellate court may interfere with a costs order only where the court or tribunal below made an error of law or principle. It does not re-exercise the costs discretion afresh.

A judicial review claimant who obtains the relief sought through settlement will normally recover the costs of the proceedings. The court may depart from that position for good reason, including the claimant's unreasonable failure to accept an earlier, reasonable settlement opportunity. Public law parties have a high duty to take advantage of sensible opportunities to avoid prolonged and costly litigation.

An Iranian asylum seeker brought judicial review proceedings challenging a local authority's age assessment on procedural and evidential grounds. After permission was granted, the authority offered a fresh assessment with procedural safeguards. The claimant initially rejected that offer but later accepted a revised offer permitting an independent social worker nominated by his solicitors to participate.

The fresh assessment accepted the claimant's asserted date of birth. A consent order declared that date and quashed the earlier decisions. Upper Tribunal Judge Allen awarded the claimant his costs only up to 14 December 2011 because an offer of reassessment had been made the following day.

The claimant appealed, contending that his success entitled him to all his costs and that the later accepted offer differed materially from the earlier offer. The central issue was whether the Upper Tribunal's costs order disclosed an error of law or principle.

1. Appeal dismissed unanimously. An award of costs lies within the discretion of the first-instance court or tribunal. The Court of Appeal may intervene only for an error of law or principle. It must not reconsider the matter on a blank sheet or substitute its preferred order for one falling within the permissible range.

2. Under R (M) v Croydon LB Council [2012] EWCA Civ 595, a judicial review claimant who secures through settlement the relief sought will ordinarily recover the whole costs of the action. That principle remains subject to a good reason for another order. The claimant's conduct, including an unreasonable failure to accept a reasonable offer, may provide such a reason.

3. Both parties to public law litigation have a high duty to use reasonable and sensible opportunities for settlement. The authority's offer of 15 December 2011 was such an opportunity. It offered a fresh assessment with procedural safeguards, did not require the claimant to withdraw or abandon the proceedings and preserved his ability to continue the claim if the reassessment went against him.

4. R (ota of Kadri) v Birmingham City Council [2012] EWCA Civ 1432 did not prevent acceptance of the offer. The authority was not proposing that the judicial review should be finally determined by social workers. It proposed an interim shortcut capable of producing settlement while the proceedings remained available if necessary.

5. The later offer was not materially different merely because it allowed the claimant to nominate one of the two social workers. Any assessor was required to exercise independent professional judgment. The claimant therefore acted unreasonably by rejecting the first offer and allowing the litigation to continue.

6. That unreasonable conduct was a special feature justifying departure from the normal costs order. Upper Tribunal Judge Allen committed no error of principle and rationally exercised his discretion by awarding costs only up to 14 December 2011.

1. Court of Appeal (Civil Division): The appeal was dismissed. The Upper Tribunal's costs order disclosed no error of law or principle.

2. Upper Tribunal (Immigration and Asylum Chamber): Acting as a judicial review court, Upper Tribunal Judge Allen approved the settlement but awarded the claimant costs only up to and including 14 December 2011, with no order for costs thereafter.

3. High Court: Nicol J extended time, granted permission for judicial review and transferred the proceedings to the Upper Tribunal.