Osman, R (On the Application Of) v Secretary of State for the Home Department

When judicial review proceedings become academic, the court may determine costs by assessing the likely outcome of the claim and the conduct of all parties. The assessment includes conduct before and during proceedings, the reasonableness of pursuing issues, the manner in which the claim was conducted, and admissible settlement offers. A claimant may recover costs where the claim would probably have succeeded, but unreasonable conduct and unreasonable counter-offers may justify a reduction. The court should make an overall assessment rather than treat one party’s conduct as determinative.

The claimant challenged the refusal of an application for an EEA residence card as the extended family member of an EEA national. Permission was initially refused on the papers, and the renewed application was delayed and stayed while the implications of Banger v United Kingdom (C-89/17) were considered.

The claimant subsequently married the EEA national and made a new application as a direct family member. The judicial review thereby became academic. The parties agreed that the claim should be withdrawn, but disagreed about costs. The issue was whether the claimant would probably have succeeded and how the parties’ conduct and settlement offers should affect the costs order.

1. Applicable approach. The court applied