Gopikrishna, R (on the application of) v The Office of the Independent Adjudicator for Higher Education & Ors

In judicial review proceedings, the general civil litigation rule applies: costs ordinarily follow the event. A claimant who obtains the principal relief is normally the successful party, even if some issues fail. The unsuccessful party bears the burden of showing why a different order is justified.

The court must exercise its discretion by considering all the circumstances, including partial success, party conduct and compliance with pre-action requirements. An issue-by-issue analysis is not mandatory where the issues are intertwined. An interested party may be ordered to contribute where it actively and unsuccessfully defends the claim and its conduct materially contributes to the litigation.

The claimant sought judicial review of a decision by the Office of the Independent Adjudicator for Higher Education. She obtained an order quashing the decision, although she failed on several issues and did not obtain all the relief sought.

The claimant sought costs against the defendant and the University of Leicester, which had actively supported the defence. They argued for no order as to costs or a reduced order, relying on the claimant’s partial success and conduct of the litigation. The central issue was the appropriate exercise of the costs discretion under Civil Procedure Rules 1998, Part 44.

1. Outcome. The claimant was the successful party because she obtained the principal relief: an order quashing the decision under challenge. The defendant and the University were unsuccessful.
2. The starting point in judicial review is the ordinary rule that costs follow the event. The successful claimant is ordinarily entitled to costs, and the unsuccessful party must justify any departure from that rule. The court retains a broad discretion under Part 44, having regard to all the circumstances.
3. Relevant matters included the claimant’s success on the central outcome, her failure on some issues, the conduct of all parties before and during proceedings, compliance with the pre-action protocol, and whether particular issues materially affected the result. The court rejected an issue-based reduction where the issues were too intertwined for a sensible and proportionate allocation.
4. The University’s active participation went beyond a confined and legitimate intervention. It adopted and advanced unsuccessful positions, ignored procedural rules, caused confusion and misunderstandings, and took some unmeritorious points. It was therefore appropriate to order it to contribute to the claimant’s costs.
5. The defendant had been given an opportunity to reconsider its position after disclosure of an important error of fact but chose to continue defending the claim. It therefore had to pay part of the costs. The claimant was awarded two-thirds of her costs, payable in equal shares by the defendant and the University. The publicly funded costs of the other interested parties were to be subject to detailed assessment.

First-instance judicial review proceedings. The judgment itself records that the claimant had obtained an order quashing the defendant’s decision.