Haigh v Westminster Magistrates' Court (Costs)

Costs in judicial review proceedings should reflect the outcome viewed overall. A claimant who succeeds on one ground may still be ordered to pay the interested parties’ costs where most grounds fail and the relief obtained is modest. Indemnity costs require features taking the case out of the norm. Unfounded allegations of fraud and reliance on settlement offers may satisfy that requirement. The usual rule is that successful parties cannot recover costs incurred before permission, apart from preparing acknowledgements of service, unless the circumstances justify a departure. Large bills may be directed to detailed assessment rather than summary assessment. Where costs are subject to detailed assessment, a payment on account should ordinarily be ordered, but freezing orders may constitute a good reason not to do so.

The judgment concerned costs remaining after the court’s earlier judicial review judgment, [2017] EWHC 232 (Admin). The claimant had succeeded in part on one ground, reducing costs orders made by a district judge, but three grounds of challenge had been dismissed. The interested parties sought their costs, indemnity assessment, pre-permission costs, detailed assessment, and payment on account. The court also considered separate representation and a possible wasted costs application. The central issues were the appropriate costs order, the basis and recoverability of costs, and whether payment on account should be required.

Costs order. The claimant was ordered to pay the costs of the first and second interested parties, who had the same representation, and the separately represented third interested party. The claimant’s partial success did not outweigh the dismissal of three grounds, the modest reductions obtained, the rejection of arguments on the successful ground, and the earlier settlement offers.

1. Indemnity basis. Costs must be actually and reasonably incurred and reasonable in amount on either basis. On the standard basis they must also be proportionate, with doubts resolved in favour of the paying party. On the indemnity basis they need not be proportionate, and doubts are resolved in favour of the receiving party. The standard basis is normal, but indemnity assessment is justified where the case is taken out of the norm. Unfounded allegations that the interested parties’ costs claims were fraudulent, together with the significance of settlement offers, provided two such features.
2. Pre-permission costs. The usual practice, reflected in R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166, [2008] 1 WLR 878, was applied. The interested parties could recover the costs of preparing acknowledgements of service, but not other pre-permission costs or attendance at the renewal hearing. Their substantial participation did not justify departure from that practice.
3. Assessment and payment. Summary assessment is not inflexible. Given the size of the bills, detailed assessment was appropriate if the costs were not agreed. Although Civil Procedure Rules 1998, rule 44.2(8), ordinarily requires a reasonable payment on account, existing freezing orders constituted a good reason not to order one.

The court did not encourage a wasted costs application, but directed that any such application be made within 28 days of the formal order. The parties were directed to prepare an agreed draft order, or competing drafts with short submissions.

The judgment determined costs following the court’s earlier judicial review judgment, [2017] EWHC 232 (Admin). It was not itself an appeal from a lower court decision.