Emezie v Secretary of State for the Home Department

Where a judicial review claim is settled after the claimant has obtained everything sought, the starting point is that the claimant should recover all costs. A different order requires a good reason, such as special circumstances. The court should not ask whether the claimant would have been bound to succeed had the proceedings reached trial.

Pre-action conduct remains relevant. A defendant who could have avoided proceedings by giving a timely and unequivocal response cannot ordinarily resist costs merely because it acted realistically by settling after proceedings began.

The claimant sought judicial review requiring the Secretary of State to provide self-contained ground-floor accommodation suitable for her health needs and advanced pregnancy. Such accommodation was provided after proceedings began. The parties then agreed that the claim would be withdrawn and that costs would be determined on written submissions.

Mostyn J ordered no costs. The claimant appealed on the ground that he had applied the superseded test of whether she would have obtained the requested order at trial, rather than asking whether the settlement gave her what she had sought.

1. Appeal allowed. Mostyn J had applied the wrong principle when determining costs. His reasons indicated that he had asked whether the claimant would have obtained the accommodation order had the proceedings been tried. That approach reflected Boxall v Waltham Forest LBC (2001) 4 CCL Rep 258 and was no longer applicable: paras 3–6.

2. Applying M v Croydon [2012] EWCA Civ 595, the starting point following settlement was whether the claimant had achieved what she sought. A claimant who has been wholly successful should ordinarily recover all costs unless a good reason or special circumstances justify another order. A defendant's realistic decision to settle after issue does not itself displace that principle, since timely settlement is an object of the pre-action process: paras 3–4.

3. The claimant had obtained the self-contained ground-floor accommodation identified in her pre-action correspondence. Before proceedings, the Secretary of State had not given an unequivocal assurance that accommodation of that description would be provided. The correspondence did not support the contention that such accommodation had already been offered. Proceedings would have been avoided by a sufficiently clear and timely assurance: paras 7–8.

4. Because the judge had failed to apply the correct principles, the Court of Appeal could exercise the costs discretion afresh. The only just order was that the Secretary of State pay the claimant's costs of both the judicial review proceedings and the appeal, assessed on the standard basis: para 9. Elias LJ agreed: para 10.

1. Court of Appeal (Civil Division): The appeal was allowed. The court replaced the order below with an order requiring the Secretary of State to pay the claimant's costs of the judicial review proceedings and the appeal on the standard basis: [2013] EWCA Civ 733.

2. High Court, Administrative Court: Mostyn J determined the costs application on the papers after the judicial review claim was compromised. He rejected the claimant's request for costs and made no order as to costs.