R v Parole Board

The Supreme Court will ordinarily be slow to intervene in guidance given by the Court of Appeal on costs and other matters of practice. The Court of Appeal has primary responsibility for monitoring and developing such practice. Supreme Court intervention remains appropriate where an error of law raises a point of general public importance.

Court of Appeal decisions laying down principles of practice are not binding precedents in the ordinary sense. They should nevertheless be reviewed only for sufficient reason, such as a material change of circumstances or a decision made per incuriam.

A judicial or quasi-judicial body which remains neutral when its decision is challenged is not ordinarily an unsuccessful party under rule 44.2 of the Civil Procedure Rules 1998. The court retains a residual discretion to respond to unusual circumstances and achieve a just result.

A life prisoner successfully obtained judicial review of the Parole Board’s refusal to recommend his transfer to open conditions. That aspect of the Board’s decision was quashed in R (Gourlay) v Parole Board [2014] EWHC 4763 (Admin). King J nevertheless made no order for costs because the Board had acted in a judicial or quasi-judicial capacity, had remained neutral in the proceedings and had not behaved improperly or unreasonably.

The Court of Appeal dismissed the prisoner’s costs appeal in R (Gourlay) v Parole Board [2017] EWCA Civ 1003; [2017] 1 WLR 4107. It held that the practice described in R (Davies) v Birmingham Deputy Coroner applied to the Board, including when it considered transfer to open conditions.

The issues before the Supreme Court were whether the Davies approach remained applicable and, if so, whether the Board should be treated as a court or tribunal for that purpose. The court also considered its institutional role in relation to principles of costs practice developed by the Court of Appeal.

1. Appeal dismissed unanimously. Lord Reed delivered the judgment, with which Lord Hodge, Lord Lloyd-Jones, Lady Arden and Lord Leggatt agreed. King J had exercised the statutory costs discretion rationally and in accordance with established principles. Neither his decision nor the Court of Appeal’s decision disclosed an error of law.

2. Under section 51 of the Senior Courts Act 1981, costs are within the court’s discretion, subject to enactments and rules of court. Appellate courts may establish principles governing that discretion. Responsibility for monitoring and developing matters of practice lies principally with the Court of Appeal, which can respond to developments with greater speed, sensitivity and flexibility. The Supreme Court should ordinarily be slow to intervene in Court of Appeal guidance on costs or other matters of practice. It may intervene where there is an error of law, although costs-only appeals will rarely raise a point of law of general public importance.

3. A Court of Appeal decision laying down principles of practice is not a binding precedent in the ordinary sense applicable to decisions of law. The Court of Appeal must be able to keep such guidance under review. Nevertheless, consistency requires an earlier practice decision to be reviewed only for sufficient reason, such as a material change of circumstances or a decision made per incuriam. Lower courts also retain a residual costs discretion so that established principles can be applied flexibly in unusual situations.

4. The Davies practice was compatible with rule 44.2 of the Civil Procedure Rules 1998. A body which makes a decision judicially or quasi-judicially, declines to defend it when challenged and allows its reasons to speak for themselves preserves its independence and impartiality. Such a neutral body is not an unsuccessful party within the contemplation of the rule. The general rule that the unsuccessful party pays the successful party’s costs therefore did not determine the Board’s position.

5. Whether the Board should be treated as a court or tribunal for costs purposes was itself a question of practice, not an abstract classificatory question. King J was entitled to regard the Board as acting judicially or quasi-judicially when considering transfer to open conditions. It had not become an active party. Its failure to answer the pre-action letter was regrettable but did not amount to improper or unreasonable behaviour justifying a costs order.

6. Receipt of legal aid does not alter the principles normally governing the costs discretion. Section 30(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 confirms that legal-aid rights do not affect other parties’ liabilities or the ordinary principles governing discretion. The method by which a successful party’s lawyers are funded will rarely, if ever, affect that party’s right to recover costs.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The court held that neither King J nor the Court of Appeal had made an error of law.
2. Court of Appeal: In R (Gourlay) v Parole Board [2017] EWCA Civ 1003; [2017] 1 WLR 4107, the court dismissed the costs appeal. It held that the Davies practice applied to the Parole Board, including its consideration of transfer to open conditions.
3. High Court, Administrative Court: The prisoner’s judicial review succeeded and the refusal to recommend transfer to open conditions was quashed in R (Gourlay) v Parole Board [2014] EWHC 4763 (Admin). King J subsequently made no order for costs because the Board had remained neutral and had not behaved improperly or unreasonably.