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

This is a costs determination in a judicial review claim challenging the pandemic-era Table Meal Requirement (TMR) on grounds including alleged unjustified indirect discrimination contrary to section 19 of the Equality Act 2010 and breach of rights under Article 14 in conjunction with Article 8 (via section 6 HRA 1998). Permission for judicial review of the TMR was granted by HHJ Pearce on 5 February 2021. The Defendant announced on 22 February 2021 that the TMR would not be reimposed in the Government's "Roadmap" and the claim was withdrawn by consent on 17 March 2021.

The court identified two principal issues for costs: (1) whether it was "tolerably clear" who would have won had the claim continued, and (2) whether the Claimants had obtained the relief sought (whether the abandonment of the TMR was caused by the proceedings). The defendant relied on a range of substantive points (statutory exemptions, the nature of the protected group, ambit of Article 8, and public health justification).

The judge declined to conduct a paper-based mini-trial and held that the statutory and human-rights arguments were not so clearly decisive that it was tolerably clear the Defendant would have prevailed; the permission-stage decision that no "clean knock-out" points existed was persuasive. The court accepted contemporaneous witness evidence from a senior civil servant that the decision to abandon the TMR was driven by vaccine rollout and public-health considerations. On that basis, and having regard to the duty of candour, the court concluded that costs should lie where they fall and made no order as to costs.

Background and parties: The Claimants sought judicial review of the government's Table Meal Requirement (TMR), a pandemic measure restricting alcohol service to customers served with a table meal. The Claimants argued the TMR amounted to unjustified indirect discrimination under section 19 of the Equality Act 2010, engaged Article 14 in conjunction with Article 8 (invoked via section 6 of the Human Rights Act 1998), and was otherwise unlawful in public law. Permission for judicial review in respect of the TMR was granted on 5 February 2021 by HHJ Pearce. The Defendant filed Detailed Grounds of Resistance and evidence on 24 February 2021. The Government announced on 22 February 2021 in the "Roadmap" that the TMR would not be reimposed. The claim was withdrawn by consent order on 17 March 2021 with directions for costs submissions.

Nature of the application and issues: This hearing was a costs determination decided on the papers. The court framed the dispute around two issues: (i) whether it was "tolerably clear" that the Defendant would have won the substantive proceedings so as to justify a costs order against the Claimants (applying the approach in R (M) v Croydon LBC and related authorities), and (ii) whether the Claimants had obtained the relief sought — in practical effect whether the abandonment of the TMR was attributable to the proceedings or to independent policy change.

Reasoning and findings: The judge declined to resolve contested substantive points on the papers by conducting a mini-trial. The judge considered that a sufficiently high degree of confidence would be required to find tolerable clarity and observed that the permission judge had not treated the defendant's points as "clean knock-out blows." The court therefore would not allocate costs on that basis. On causation of the policy change, the court accepted a sworn witness statement from a senior civil servant dated 24 February 2021 stating that the TMR was abandoned because of the availability and rollout of vaccines and the consequent reduction in transmission risk, and that absent the vaccine rollout the TMR might still have been appropriate. No application to challenge that evidence by cross-examination was made. The judge emphasised public authorities' duty of candour and accepted the Government's explanation for the policy change. Taking the foregoing together, the judge concluded that the appropriate order was no order as to costs.

Procedural notes: The determination was decided on the papers with written costs submissions from both parties following the consent withdrawal order. The judge noted relevant guidance and authorities on costs allocation in judicial review contexts.

No order as to costs. The court refused to conduct a paper mini-trial and concluded there was insufficient "tolerable clarity" to hold that the Defendant would have clearly prevailed; it accepted uncontested witness evidence that the TMR was abandoned for public-health reasons linked to vaccine rollout, and therefore ordered that costs lie where they fall.

Permission for judicial review of the Table Meal Requirement was granted by HHJ Pearce on 5 February 2021; Detailed Grounds of Resistance and evidence were filed by the Defendant on 24 February 2021; the Government announced in the "Roadmap" on 22 February 2021 that the TMR would not be reimposed; the claim was withdrawn by consent order dated 17 March 2021 with directions as to costs.