MA (Formerly A Child But Now of Full Age) & Ors v Independent Adjudicator & Director, HMYOI Ashfield (Costs)

Costs in judicial review proceedings are not determined solely by identifying which party achieved an overall win. The court may consider the development and withdrawal of grounds, amendments to the relief sought, the work required to meet the changing case, the extent to which factual findings affected the result, and unnecessary or undisputed authorities in the parties’ submissions. Having regard to the proceedings as a whole, the fair order may be no order as to costs, even where one party seeks its costs or the other party achieved success on particular issues.

The claimants brought judicial review proceedings against the Independent Adjudicator and the Director of HMYOI Ashfield. The Secretary of State for Justice was an interested party. The costs judgment followed the court’s substantive judgment, identified as [2013] EWHC 438 (Admin).

After receiving written submissions, the court considered competing applications. The claimants sought their full costs, alternatively 75 per cent of their costs. The defendant sought no order as to costs, alternatively an order reflecting success on specific issues. The central issue was the fair allocation of costs in light of the way the claims had been pursued and the substantive findings.

1. The court rejected an approach based simply on identifying an overall winner. Costs had to be determined by a fair assessment of the proceedings as conducted and the issues actually resolved.
2. Relevant considerations included the fact that the claimants’ challenges had altered during the proceedings, that some original grounds were withdrawn, and that further amended forms of relief were advanced during the trial. The defendant was required to address, and did address, those changes.
3. The court also took account of the claimants’ lengthy final skeleton argument, which cited numerous authorities on matters where there was no disputed issue of law, together with the court’s findings of fact.
4. Those matters meant that the outcome could not fairly be reduced to success or failure in the litigation as a whole, or to success on selected issues. The fair order was accordingly no order as to costs.

The costs judgment followed the substantive judgment in the same judicial review proceedings, identified as [2013] EWHC 438 (Admin). No appeal or appellate decision is stated.