SO, R (on the application of) v Thanet District Council

For costs purposes, a claimant is the successful party where the claim establishes a substantial legal result, even if the point was imperfectly pleaded and other grounds fail. The costs order may reflect unsuccessful and unarguable issues through an issue-based reduction.

An order for a payment on account of costs must specify a workable process for fixing the amount. An open-ended order based on a costs schedule not yet prepared is inappropriate.

This was the Court of Appeal’s consequential costs judgment following its substantive decision of 14 April 2023, [2023] EWCA Civ 398. The substantive appeal concerned judicial review of directions issued under section 77 in respect of land occupied by the claimant and her family.

At a rolled-up hearing, Anthony Elleray KC, sitting as a High Court judge, had refused permission to seek judicial review. The claimant had advanced four grounds. She ultimately established that the council had issued no effective November direction against her, although other challenges failed.

The issues were the proper costs order for the High Court proceedings, whether any set-off issue arose, and the claimant’s application for a payment on account of costs.

1. The court made a costs order in the claimant’s favour. She was entitled to 60% of her High Court costs, reflecting the issues on which she had failed, in addition to her costs of the Court of Appeal proceedings.

2. The claimant had achieved a substantial legal success. The council had failed to issue any effective section 77 direction against her. Her continued occupation after November 2021 was therefore not a criminal offence. That result made her the successful party for costs purposes.

3. The point was sufficiently raised by ground 1. The pleading relied on the claimant’s consent to occupy the land and challenged directions addressed to all occupants. Although the point was not clearly articulated, the legal effect of that consent when the council decided to issue the directions was clearly in issue. The council had caused the confusion over the September direction, which was only clarified through judicial case management.

4. The claimant had nevertheless pursued several unsuccessful, including unarguable, challenges. Her documents also lacked appropriate clarity and focus. Those matters justified the 40% reduction in her High Court costs, rather than depriving her of a costs order altogether.

5. No question of set-off required determination. The court would have made the same order whether the claimant was privately or publicly funded.

6. The court ordered a payment on account of costs pursuant to CPR 44.2(8), but rejected the proposed open-ended form of order. The claimant was to serve separate High Court and Court of Appeal costs schedules within seven days. The council could comment within seven days. If agreement was not reached, the court would determine the amount and payment date on the papers.

• Court of Appeal (Civil Division) — Following the substantive decision in [2023] EWCA Civ 398, the court made a consequential costs order in the appellant’s favour.

• High Court — Anthony Elleray KC, sitting as a High Court judge, refused permission to seek judicial review after a rolled-up hearing.