Speciality Produce Ltd, R (On the Application Of) v The Secretary of State for Environment, Food And Rural Affairs

A claimant does not become the successful party in judicial review proceedings merely because an independent, concurrent statutory appeal produces the same relief. An award of costs ordinarily requires a sufficient causal link between the judicial review claim and the relief obtained. The court must usually also be satisfied that the claimant was likely to have succeeded in that claim.

Where the two procedures rest on materially different and self-contained grounds, relief obtained through the statutory route cannot be attributed to the judicial review without evidence of that link. The reasonable pursuit of both routes may justify making no order as to costs, but it does not itself justify ordering the public authority to pay the costs of proceedings which proved unnecessary.

Speciality Produce Ltd challenged the withdrawal of its recognition as a producer organisation through both judicial review proceedings and the statutory appeal procedure under the Common Agricultural Policy support scheme. Permission for judicial review was limited to abuse of process and legitimate expectation. The statutory appeal concerned separate factual and legal objections to the assessment of the company's marketing arrangements.

The statutory Appeal Panel recommended that recognition should be restored. The Secretary of State accepted that recommendation, so the judicial review claim was withdrawn as academic. Vos J made no order for its costs: [2013] EWHC 2196 (Ch).

The company appealed, contending that it had obtained the relief sought in the judicial review and should therefore be treated as the successful party. The central issue was whether relief obtained through a concurrent but independent statutory appeal entitled it to the costs of the judicial review proceedings.

1. Appeal dismissed unanimously. The Secretary of State's acceptance of the statutory Appeal Panel's recommendation could only be treated as an endorsement of the appeal decision on the arguments presented to the Panel. The Panel had considered factual and legal submissions which adopted the reasoning in Angus Growers v Scottish Ministers [2012] EuLR 539. Those matters were distinct from the abuse of process and legitimate expectation grounds permitted in the judicial review.

2. The guidance in R (M) v Croydon London Borough Council [2012] EWCA 595 concerns the costs of proceedings compromised on terms granting all, part or different relief. Its categories did not readily accommodate two concurrent challenges resting on different, self-contained grounds. The guidance is directed to the exercise of the costs discretion and is not a restatement of the rules.

3. Where proceedings conclude without judgment, a claimant may be treated as successful if the link between the claim and the agreed relief is sufficiently clear. The court must usually be satisfied that the claimant was likely to have won. In any event, the claim must have caused the relief obtained. A court should not attempt to determine costs by resolving disputed factual or legal merits which have neither been tried nor agreed.

4. No such causal link was established. The Court could not infer that the Secretary of State's decision owed anything to the potential force of the judicial review. Nor could it determine whether the abuse of process or legitimate expectation grounds would have succeeded. The withdrawal of the administrative decision followed the statutory appeal and was not obtained in or through the judicial review proceedings.

5. The company's commercial reasons for pursuing both routes, and the earlier history of delay, did not justify an adverse costs order against the Secretary of State. Making no order as to costs adequately recognised that pursuing the judicial review may reasonably have been considered necessary, although it ultimately proved unnecessary. The High Court's order was therefore upheld.

1. Court of Appeal (Civil Division): By [2014] EWCA Civ 225, unanimously dismissed the appeal and upheld the order making no award of the judicial review costs.

2. High Court, Chancery Division: Vos J held in [2013] EWHC 2196 (Ch) that relief obtained through the separate statutory appeal did not make the claimant successful in the judicial review. He made no order as to costs.