Gourlay, R (on the application of) v The Parole Board

The special costs practice for judicial review of courts and tribunals applies to the Parole Board. Where it has neither acted improperly nor actively participated in the proceedings, the usual order is no order as to costs, even if its decision is quashed.

That practice applies both to binding release decisions and to advisory recommendations on transfer to open conditions. Although a transfer recommendation does not bind the Secretary of State, the Board performs substantially the same independent, risk-assessment and procedurally fair function. General public-law costs principles do not displace the established practice, and the claimant’s public funding is irrelevant to a retrospective costs order.

A life prisoner successfully obtained judicial review of the Parole Board’s refusal to recommend his transfer from closed to open conditions. King J held that the Board had treated the prisoner’s denial of his offending as determinative and remitted the matter for a fresh oral hearing: [2014] EWHC 4763 (Admin).

The Board had taken no active part in the judicial review. On costs, King J made no order, applying the practice stated in R (Davies) v HM Deputy Coroner for Birmingham [2004] EWCA Civ 207. The prisoner appealed solely against that costs order. The central issue was whether that practice extended to the Board when it made an advisory recommendation concerning transfer to open conditions.

1. Appeal dismissed. King J correctly made no order for costs. The established practice in R (Davies) v HM Deputy Coroner for Birmingham [2004] EWCA Civ 207 applies where a court or tribunal has neither behaved improperly nor taken an active adversarial role. Its neutral assistance on jurisdiction, procedure or specialist law does not alter that position.
2. The Parole Board is an independent and impartial court for release decisions under article 5(4). Its power to direct release is binding on the Secretary of State. The Board’s statutory power to review its own decisions, and its policy of considering whether to concede a claim, do not impose an obligation to concede or make a neutral stance equivalent to actively contesting proceedings.
3. The general public-law costs observations in R (M) v Croydon London Borough Council [2012] EWCA Civ 595 did not alter Davies. As confirmed by R (Gudanaviciene) v First-tier Tribunal (Immigration and Asylum Chamber) [2017] EWCA Civ 352, they concern the costs consequences of settlement or compromise, not the ordinary exposure of a neutral tribunal where a claimant succeeds. The source of a claimant’s funding is irrelevant to a retrospective costs order.
4. The same costs approach applies to a Board recommendation on transfer to open conditions. The recommendation is advisory, but the Board still performs the same specialist and procedurally fair risk-assessment function. The Secretary of State normally follows the recommendation and remains an available defendant or interested party in an appropriate challenge to the ultimate transfer decision.
5. The August 2014 direction under Criminal Justice Act 2003 section 239(6) was within power. It required a lawful balance between the benefits of transfer and public-risk reduction; it did not compromise the Board’s independence.

• Court of Appeal (Civil Division): dismissed the prisoner’s appeal against the no-order costs decision.
• High Court (Queen’s Bench Division, Administrative Court): allowed the judicial review of the refusal to recommend transfer to open conditions, remitted the matter for a fresh oral hearing, but made no order for costs: [2014] EWHC 4763 (Admin) .