D & Ors v The Lord Chancellor & Anor

Where a court or tribunal is named as defendant in judicial review proceedings, its proper role is generally to assist the court neutrally. If it actively contests the claim, it may become an active party and be exposed to the ordinary costs consequences.

A claimant who obtains the principal relief sought may ordinarily recover costs, even where the claim becomes academic after the challenged policy is withdrawn. Pre-action shortcomings will not necessarily prevent recovery where the defendant had a clear opportunity to address the complaint and withdraw the policy.

Three claimants challenged a policy requiring appeals represented by Duncan Lewis solicitors to be transferred from Birmingham to Hatton Cross because two Duncan Lewis directors had become fee-paid tribunal judges sitting in Birmingham.

The policy was withdrawn and replaced with arrangements for identifying conflicts and listing cases accordingly. The first claimant accepted a CPR Part 36 offer. The second and third claimants sought permission to discontinue their claims and an order for their costs. The defendant argued that it had acted neutrally, that alternative tribunal remedies had not been exhausted, and that the claimants had not achieved the relief sought.

1. Outcome. Permission was granted for the second and third claimants to discontinue. The defendant was ordered to pay their costs. The first claimant’s costs were dealt with under CPR Part 36.
2. The claimants had achieved the principal relief sought because the challenged protocol was withdrawn and replaced with arrangements allowing Duncan Lewis cases to be listed in Birmingham, subject to conflict safeguards. The claims becoming academic after withdrawal did not alter that conclusion.
3. The general principle in R (M) v Croydon LBC applied. A claimant who obtains the substance of the relief sought will ordinarily be treated as successful for costs purposes.
4. The defendant had gone beyond the neutral role expected of a court or tribunal in judicial review proceedings. Its correspondence and pleadings contested standing, amenability and the merits, threatened costs consequences, and maintained an adversarial stance at the hearing. Applying the categories identified in R (Davies) v HM Deputy Coroner for Birmingham (Costs), this was a category 2 case in which the defendant had made itself an active party to the litigation.
5. The authorities concerning neutral participation, including R (Gourlay) v Parole Board and R (Adath Yisroel Burial Society) v HM Senior Coroner for Inner North London, did not justify the defendant’s conduct. The stance adopted went materially beyond correcting facts, identifying relevant law or assisting the court neutrally.
6. The claimants’ pre-action conduct did not justify depriving them of costs. Their position was clear, the defendant had sufficient opportunity to withdraw the protocol, and the proceedings were directed at the underlying policy rather than merely at individual listing decisions.