Khan v Governor of HMP The Mount & Anor

A claimant who discontinues judicial review proceedings ordinarily pays the defendant’s costs incurred up to discontinuance. Departure from that rule requires cogent reasons. A change of circumstances will usually need to result from unreasonable conduct by the defendant; practical, pragmatic or financial reasons alone are insufficient.

The court may set aside a notice of discontinuance under CPR r.38.4, but must respect the claimant’s wish to end the proceedings and consider all the circumstances. Where discontinuance follows refusal to vacate a substantive hearing, the court may instead record observations and rely on CPR r.38.7, which requires permission for a substantially identical later claim. The notice was not abusive and was not set aside, but the claimant remained liable for the pre-discontinuance costs.

The claimant, a prisoner with thalassemia, sought judicial review of the refusal to re-categorise him and transfer him to open prison conditions. He alleged that treatment for his condition required a PICC line and that continued detention in closed conditions breached Articles 2 and 3 ECHR and the Equality Act 2010.

After Covid-19 restrictions affected prison transfers and possible temporary release, the claimant applied to vacate the substantive hearing. That application was refused. He then served notice discontinuing the claim and sought an order departing from the usual costs rule. The defendants sought to set aside the notice or obtain protective observations concerning any later claim.

1. Discontinuance. The discretion under CPR r.38.4 is not confined to abuse of process or collateral tactical advantage. Relevant considerations include respect for the claimant’s decision to end proceedings, the objective of achieving justice at proportionate cost, all the circumstances, and conduct aimed at frustrating the court’s process. The claimant’s notice was served in good faith because the medical evidence showed that the claim was bound to fail. It was not an abuse of process and was not set aside.
2. Protection against revival. The defendants’ concern about a substantially identical future claim was adequately addressed by CPR r.38.7. Because defences had been filed and any later claim would arise from the same or substantially the same facts, permission would be required. Following the approach in R (Davis) v Secretary of State for Justice [2020] EWHC 978 Admin, that procedural hurdle was a sufficient and proportionate remedy.
3. Costs. CPR r.38.6(1) establishes the normal rule that a discontinuing claimant pays the defendant’s costs up to discontinuance. The claimant had to show a good reason to depart from it. The pandemic did not alter the merits of the claim: the evidence remained that oral medication was effective, and arrangements would be made if a PICC line later became medically necessary. The claim therefore remained unsustainable, and the claimed practical difficulties did not amount to a cogent reason or result from unreasonable conduct by the defendants.
4. The claimant was ordered to pay the defendants’ reasonable costs up to 27 April 2020, subject to assessment and the statutory restriction on enforcement under section 26(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. There was no order as to costs after discontinuance.

First-instance determination of applications arising from discontinuance of a judicial review claim. The judgment refers to the earlier permission decision and to the refusal of the claimant’s application to vacate the substantive hearing.