Kay, R (On the Application Of) v Scan-Thors (UK) Ltd & Anor (Costs)

In a successful judicial review, costs are ordinarily awarded to the party successful in the proceeding, even where the court did not need to determine every argument advanced. A court hearing the judicial review may determine costs incurred in related magistrates’ court proceedings where it is best placed to resolve the issue and doing so avoids further delay and expense. Costs may be ordered against a private prosecutor rather than central funds where that prosecutor’s breach of the duty of candour materially caused the proceedings. Indemnity costs are appropriate where unreasonable conduct caused a significant waste of court time and resources.

The claimants successfully sought judicial review of a District Judge’s decision and the summonses issued by Leeds Magistrates’ Court. The decision and summonses were quashed in the judgment reported at [2018] EWHC 1233 (Admin). The court then considered the claimants’ application for costs incurred both in the magistrates’ court and in the judicial review.

The interested party disputed the appropriate forum, the extent of the claimants’ success, liability as opposed to central funds, the basis of assessment, and the reasonableness of the amounts claimed.

1. Disposition and forum. The court ordered the interested party to pay the claimants’ costs incurred both in the magistrates’ court and in the judicial review. It was appropriate for this court, rather than the magistrates’ court, to determine the costs incurred below, since that avoided further delay and expense and this court was best placed to assess the proceedings globally (paras [12]–[14]).
2. Success in the proceedings. The claimants were clearly the successful party because they obtained the remedy sought: the quashing of the District Judge’s decision and the summonses. The fact that the court did not need to adjudicate on the undertaking point did not mean that the claimants had failed on that argument or lacked success. There was no warrant for reducing costs on that ground (paras [15]–[17]).
3. Liability and central funds. The interested party was the driving force in obtaining the summonses in significant breach of his duty of candour and in persuading the District Judge to proceed as she did. No order was appropriate from central funds, and the interested party should not pay only a proportion of the costs (paras [18]–[21]).
4. Indemnity basis. Costs should be assessed on the indemnity basis where the losing party’s unreasonable conduct has, overall, caused a significant waste of court time and resources. The conduct included culpable non-disclosure, inappropriate continuation of the prosecution, deliberate non-disclosure of a relevant document, and the misconceived deemed-costs submission. Applying the principles identified in Franses v Somar [2007] EWHC 2442, the court ordered indemnity costs (paras [22]–[25]).
5. Assessment. Having regard to Senior Courts Act 1981 s 51, Civil Procedure Rules 1998 r 44.2 and Prosecution of Offences Act 1985 s 19, the court summarily assessed the costs at £250,000, payable within 28 days (paras [26]–[29]).

The judgment records that the claimants’ judicial review claim had previously been allowed and the District Judge’s decision and summonses quashed in [2018] EWHC 1233 (Admin). This judgment determined the consequential costs application.