Raqeeb v Barts Health NHS Trust (Costs)

In judicial review proceedings, a claimant who establishes that a public body acted unlawfully is ordinarily the successful party for costs purposes, even where discretionary relief is refused or produces no practical benefit. A good reason is required to deprive the claimant of reasonable costs. The court may reduce costs for unreasonable or unnecessary issues.

Costs principles differ in proceedings concerning a child’s welfare. In such proceedings, costs orders against a public body are exceptional. The ordinary approach is no order as to costs, particularly where the public body was obliged to bring a finely balanced welfare dispute before the court and a costs order could deter similar applications.

The judgment determined costs arising from linked judicial review proceedings and proceedings under the Children Act 1989 concerning Tafida Raqeeb. In the judicial review, the court had held that Barts Health NHS Trust’s refusal to agree to Tafida’s transfer to Italy was unlawful because the Trust had failed sufficiently to consider her directly effective rights under article 56 TFEU, although relief was refused.

In the welfare proceedings, the Trust’s application for declarations that life-sustaining treatment should be withdrawn had been dismissed. Tafida sought costs in the judicial review, and her parents sought costs in the welfare proceedings. The central issues were whether Tafida was the successful party and whether the usual costs approach should be displaced in the welfare proceedings.

1. Judicial review. Tafida was plainly the successful party. She established the existence of the Trust’s decision, its amenability to judicial review, its unlawfulness and its interference with her article 56 rights. The absence of discretionary relief did not deprive her of that status. The establishment of the public law ground was a more reliable indicator of success than the nature or extent of relief granted.

2. The general rule in CPR r 44.2 that the unsuccessful party pays the successful party’s costs therefore applied. The Trust showed no sufficient reason to displace it. The judicial review also clarified the approach NHS trusts should take when asked to transfer an EU citizen child to another member state for medical treatment.

3. Tafida had nevertheless advanced an article 5 argument which was bound to fail in light of the existing authorities and which caused unnecessary work. Her recovery was therefore reduced to 80% of her judicial review costs, assessed on the standard basis if not agreed.

4. Children Act proceedings. FPR r 28.1 confers a broad discretion, but FPR r 28.2 disapplies the ordinary rule that costs follow the event. In welfare proceedings under the Children Act 1989, a costs order is exceptional and ordinarily requires reprehensible conduct or conduct outside the range of reasonableness.

5. There was no breach of article 6 through inequality of arms. The parents had experienced legal representation and had participated fully. The absence of legal aid was a matter for Parliament and could not itself justify making the Trust fund the parents’ costs.

6. The Trust was obliged to bring the welfare application where doctors and parents disagreed about Tafida’s best interests. NHS trusts and local authorities should not be deterred from placing such disputes before the court. The finely balanced nature of the case and the risks of a chilling effect outweighed the asserted matters of equality of arms and litigation conduct.

7. The appropriate order in the Children Act proceedings was therefore no order as to costs.

Not an appeal. The judgment determined costs following linked judicial review and welfare proceedings. The substantive judicial review decision is identified as [2019] EWHC 2531 (Admin); the linked Family Division decision is identified as [2019] EWHC 2530 (Fam).