SASHA LORD (R on the application of) v SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE

In a withdrawn judicial review, costs should not be allocated on the basis that it was tolerably clear who would have won unless the court has sufficient clarity and a sufficiently high degree of confidence. The court should not conduct a mini trial or reconstruct a substantive hearing which never occurred. Permission having been granted on the relevant grounds is a significant consideration where the same points are later said to be clean knockout blows. A policy change may justify withdrawal without making the claimant the winner or automatically entitling either party to costs. The court must assess the wider circumstances, including reliable evidence explaining the policy change, and apply the overriding objective of doing justice between the parties.

The claimants brought judicial review proceedings challenging a pandemic-related Table Meal Requirement, under which alcohol could be served only with a table meal. They alleged unjustified indirect discrimination, breaches of the Human Rights Act 1998 and public law unreasonableness.

Permission was granted on the principal grounds, while permission was refused on other claims. After the Government announced that the requirement would not be reimposed when hospitality reopened, the claimants withdrew the proceedings by consent. The court determined the parties’ competing costs submissions on the papers. The issues were whether it was tolerably clear which party would have succeeded and whether the claimants had obtained the relief sought.

1. Costs approach. The court’s overriding objective was to do justice between the parties after a reasonable and proportionate analysis, applying the guidance in R (M) v Croydon LBC [2012] EWCA Civ 595. The question whether it was tolerably clear who would have won required sufficient clarity and a sufficiently high degree of confidence.
2. The court would not conduct a mini trial on the papers or recreate the arguments and likely course of a substantive hearing which had never taken place. The defendant’s proposed points, including statutory, Convention and rationality arguments, were contested and could not properly determine costs in its favour.
3. The fact that permission had been granted by a High Court judge was significant. The same points said to be clean knockout blows had not been treated as such at the permission stage. Where an independent change in circumstances explains withdrawal, a defendant will often struggle to establish the required tolerable clarity on those same points.
4. The claimants were not automatically entitled to costs merely because the challenged requirement had been abandoned. The court accepted reliable witness-statement evidence that the policy change resulted from the successful vaccine rollout and wider policy decision-making, rather than from the proceedings. Public authorities and their legal representatives owe a high duty of candour in judicial review.
5. The appropriate order, in all the circumstances, was no order as to costs.

Not stated in the judgment.