Bishop v Public Service Ombudsman for Wales

Where a respondent successfully resists an application for an injunction, the general costs rule is that the applicant pays the respondent’s costs. The court must nevertheless consider all the circumstances, including the parties’ conduct. An asserted intention to appeal, disagreement with the judgment, or inability to pay does not ordinarily justify reserving costs. An application for time to pay is the appropriate procedural route where the applicant cannot immediately satisfy a costs order. In a non-fixed-costs case, summary assessment at the conclusion of the hearing is generally appropriate under the relevant costs practice direction.

This was a consequential-matters judgment following the court’s substantive judgment of 12 June 2020. The Public Service Ombudsman for Wales had successfully resisted the applicant’s pre-action application for an injunction restraining its statutory investigation of complaints against him. The respondent sought summary assessment of its costs, limited to costs incurred up to 1 June 2020. The applicant argued that costs should be reserved because he intended to appeal, raised procedural objections, and lacked the ability to pay.

1. Costs principle. As the respondent had succeeded in resisting the injunction application, the general rule under CPR 44.2(2)(a) and (b) was that the applicant should pay its costs. The court retained a discretion under CPR 44.2(4) and (5), having regard to all the circumstances, including the parties’ conduct.
2. Proposed appeal. The applicant’s stated intention to appeal did not justify reserving costs. The matters relied on did not disclose a realistic prospect of a successful appeal or compelling reasons for an appeal to be heard. The court refused permission to appeal, while recognising the applicant’s entitlement to apply to the Court of Appeal.
3. Stay. An appeal would not ordinarily operate as a stay under CPR 52.16. There was no sufficient interest-of-justice reason to order otherwise.
4. Ability to pay. The applicant’s inability to pay was not a reason to reserve costs or decline to make an order. If necessary, he could apply for time to pay using form N245.
5. Assessment. Under paragraph 9 of CPR 44PD9, summary assessment was appropriate at the conclusion of this non-fixed-costs hearing. The respondent’s costs were reasonable and proportionate and were summarily assessed at £3,441 inclusive of VAT. The application for a totally-without-merit certificate was refused.

The judgment was supplemental to the court’s substantive judgment of 12 June 2020. Permission to appeal was refused, subject to the applicant’s right to apply to the Court of Appeal.