Gorczak, R (on the application of) v Secretary of State for the Home Department

Where a defendant makes a fresh decision which renders the original judicial review challenge largely academic, the court may conclude the existing proceedings rather than allow them to roll forward from decision to decision. The claimant remains free to issue a separate claim challenging the fresh decision, without that freedom amounting to advance permission. Costs may be apportioned by reference to the procedural history and the parties’ responsibility for work undertaken before and after the fresh decision.

The claimant challenged decisions of the Secretary of State for the Home Department in proceedings with a lengthy procedural history. On 8 December 2014, the defendant made a fresh decision. The merits of that decision had not been fully formulated for challenge, but its existence made the original issues at least largely academic. The court therefore considered how the existing proceedings should be concluded, whether the claimant should remain free to bring a fresh judicial review, and how costs should be dealt with.

1. The existing proceedings were concluded. The fresh decision of 8 December 2014 rendered the original challenges at least largely academic, and it was undesirable for proceedings to roll forward from one fresh decision to another.
2. The claimant was left free to commence a separate judicial review challenging the 8 December decision. That freedom meant only freedom to issue a claim form. It did not constitute advance permission to apply for judicial review.
3. The court made no order in the present proceedings save as to costs. Having regard to the procedural history, including the defendant’s responsibility for much of the delay, the defendant was ordered to pay the claimant’s costs up to and including 8 December 2014, assessed on the standard basis.
4. No order for costs was made in respect of the period after 8 December 2014, including the hearing before the court. Work preparing amended grounds concerning the fresh decision was treated as work more properly arising in any new proceedings.

This was a first-instance judicial review decision. The judgment records a lengthy procedural history dating from 2013 but does not identify a separate lower-court decision.