Royal Free London NHS Foundation Trust, R (On the Application Of) v Saker

The successful party is ordinarily entitled to its costs against the unsuccessful party. A party cannot circumvent the merits decision by relying on the other party’s conduct to obtain costs relating to a failed claim. Conduct may justify departing from the usual costs order, but an order requiring the successful party to pay all the unsuccessful party’s costs is highly unusual and requires compelling circumstances. Costs caused by joining an unsuccessful party should not ordinarily be transferred to a successful defendant. Under Civil Procedure Rules 1998, relief from sanctions requires a proper explanation for non-compliance and a focus on efficient litigation and compliance with court orders. The absence of prejudice is not, by itself, a reason to grant relief.

The claimant brought judicial review proceedings concerning the accommodation and care of an interested party who had remained in hospital. Permission was refused against the Secretary of State for the Home Department and granted against Brent Borough Council. The claim against Brent was later compromised, leaving costs issues.

The claimant sought costs against both defendants. Brent also applied, six weeks out of time, to set aside an earlier order requiring it to pay £2,000 towards the Secretary of State’s costs and sought relief from sanctions. The court had to determine the appropriate allocation and assessment of costs and whether Brent should be permitted to challenge the earlier costs order.

1. Costs against the defendants. Under CPR Part 44.3(2)(a), the claimant was entitled to its costs against Brent because it had succeeded against Brent. It was not entitled to costs against the Secretary of State because the claim against her had failed.
2. The claimant could not go behind Judge Thornton’s decision on the merits by relying on the Secretary of State’s earlier deportation intentions or alleged conduct. The duty to provide suitable accommodation rested with Brent. Earlier correspondence, alleged silence and the pre-action conduct did not create a separate legal obligation or justify a different costs order. The normal costs rule therefore applied.
3. The conduct provisions in CPR Part 44.3(4)(a) and (5) may reduce or eliminate an unsuccessful party’s liability, and may occasionally produce an order in its favour on particular issues. However, the court knew of no case in which conduct alone had required the successful party to pay the unsuccessful party’s total costs. The circumstances did not justify such an exceptional order.
4. Brent was liable for 50 per cent of the claimant’s costs, assessed on a rough and ready basis at £7,500. The claimant’s decision to sue two defendants created the risk that costs relating to the misconceived claim against the Secretary of State would not be recoverable from Brent. Brent’s unreasonable precondition that mediation could occur only after withdrawal of the proceedings, and the unsuccessful compromise efforts, were also taken into account.
5. Relief from sanctions. Brent had failed to object to or challenge the earlier order within the prescribed period and had offered no adequate explanation for its six-week delay. Applying the guidance in Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ. 1357, the applications to set aside and for relief from sanctions were hopeless. Under CPR 3.9, the emphasis was on compliance with rules and orders and the efficient conduct of litigation. The absence of prejudice was not a sufficient basis for relief. Brent was required to pay the £2,000 ordered by Judge Thornton.

First-instance judicial review costs decision. The judgment records that permission had previously been refused against the Secretary of State and granted against Brent, but gives no citation for that earlier order.