Farrell, R (on the application of) v Investigating Committee of the Architects Registration Board

Where judicial review proceedings have been determined and the parties have been given a full opportunity to make written representations on costs, a subsequent costs order is final. The disappointed party has no general right to apply to the same court to set it aside or vary it under CPR 3.3(5). Although the application may fall within CPR 23.8(c), that provision must be read with the structure of CPR 3.3. The right under CPR 3.3(5) applies where the court makes an order without hearing the parties or giving them an opportunity to make representations. The appropriate route against a final costs order is an appeal. Permission to appeal requires a real prospect of success.

The claimant brought judicial review proceedings concerning the Architects Registration Board. Permission was refused, but the court directed the parties to make written submissions on costs. After considering full written representations, the High Court ordered that there be no order as to costs.

The claimant sought an oral hearing to challenge that costs decision, relying on CPR 23.8(c) and CPR 3.3(5). The defendant argued that the claimant had consented to determination on paper, or alternatively that CPR 3.3(5) did not apply because the parties had been given a full opportunity to make representations. The central issue was whether the claimant had jurisdiction to reconsider or vary the costs order.

1. Jurisdiction. The claim was dismissed on the jurisdictional issue. The claimant had complied with the court’s direction that costs be determined on written submissions. That did not amount to an agreement within CPR 23.8(b); the matter therefore fell within CPR 23.8(c).
2. Construction of CPR 3.3. The practice direction to Part 23 required the application to be treated as if the court proposed to make an order of its own initiative. CPR 3.3 must, however, be read as a coherent structure. Paragraph 3.3(4) concerns an order made without hearing the parties or giving them an opportunity to make representations. It does not apply merely because the order was made without an oral hearing.
3. The court may direct written representations, provide for an oral hearing, or determine the matter entirely on paper. Where both parties have had notice of the opposing case and a full opportunity to address it, the resulting costs order is final. CPR 3.3(5) does not confer a general right to reopen it.
4. The Court of Appeal decisions in Collier [2006] EWCA Civ 20 and Compton were concerned with different procedural settings, including without-notice applications and protective costs orders made at an early stage. They did not determine the proper construction of CPR 3.3 in the present final-costs context. Their general observations did not require a different result.
5. The policy of proportionality and economy supported finality where detailed written representations had already been made. The appropriate route for challenging the costs order was an appeal. Permission to appeal was refused because there was no real prospect of success.

This was a first-instance judicial review decision. The court refused permission to appeal to the Court of Appeal.