CR, R (on the application of) v Director of Legal Aid Casework and Ors

A judicial review costs capping order is not automatically invalidated when circumstances later change, including when legal aid is granted retrospectively. The court has jurisdiction under the Civil Procedure Rules 1998 to vary or revoke a costs capping order, including retrospectively, but that discretion should be exercised retrospectively only in exceptional circumstances. The statutory scheme balances access to justice with reciprocal protection for the defendant and legal certainty about costs. Retrospective removal may expose the defendant to greater liability for costs already incurred and deprive it of the reciprocal cap required by the Criminal Justice and Courts Act 2015. A costs capping order does not guarantee commercial remuneration for claimant lawyers. Future costs may nevertheless be recovered at inter partes rates.

The appellant brought judicial review proceedings concerning the refusal of exceptional case funding for representation in a Special Educational Needs and Disability Tribunal appeal. A costs capping order was made after permission was granted. Legal aid for the judicial review was later granted and backdated to a date before the order.

The appellant sought to have the costs capping order set aside ab initio. The respondent accepted that it should cease to operate prospectively but opposed retrospective variation. A Deputy Judge of the High Court varied the order prospectively only. The appeal concerned whether the later grant of backdated legal aid required retrospective revocation or variation, and how that issue interacted with reciprocal costs protection and legal certainty.

Appeal dismissed. Lady Justice Nicola Davies gave the judgment, with Lord Justice Warby and Lord Justice Bean agreeing.

1. The court had jurisdiction under CPR 46.19 to vary or revoke a judicial review costs capping order, including retrospectively. Whether retrospective variation was appropriate was a fact-sensitive discretionary question. Consistently with the purposes of the costs capping regime, it would be appropriate only in an exceptional set of circumstances.
2. The original order was valid when made because the statutory criteria in section 88(6) of the Criminal Justice and Courts Act 2015 were then satisfied. The subsequent grant of legal aid, although backdated, was an ordinary change of circumstances and did not itself invalidate the order or require retrospective variation.
3. Retrospective removal would deprive the respondent of the reciprocal cap required by section 89(2) of the Criminal Justice and Courts Act 2015. It would also undermine the legal certainty which the scheme was intended to provide and expose the respondent retrospectively to materially greater liability for costs already incurred. These considerations supported prospective variation only. The approach was consistent with the purposes recognised in R (Elan-Cane) v Secretary of State for the Home Department [2020] EWCA Civ 363 and with the exceptional-circumstances reasoning in Anti-Trafficking and Labour Exploitation Unit and Another v The Secretary of State for Justice [2022] EWHC 1962 (Admin).
4. The purpose of a costs capping order was access to justice and costs certainty, not to guarantee any particular remuneration for the claimant’s representatives. A claimant benefiting from a cap could not expect recovery at commercial rates. The reciprocal cap should permit recovery only at a reasonable modest rate, although it need not be set at the same level as the claimant’s cap. The prospective recovery of inter partes rates fairly balanced the parties’ interests.
5. The appellate court should be slow to interfere with a wide costs discretion absent an error of principle, failure to consider relevant matters, or an unreasonable result. The Deputy Judge had detailed written submissions before him, addressed the relevant issues, and was entitled to prefer the respondent’s reasoning. There was no sound evidential basis for the contention that the initial refusal of legal aid was wrongful or that the order was irrational or unfair.

• Court of Appeal (Civil Division): appeal dismissed and the High Court’s prospective variation upheld, [2023] EWCA Civ 717.
• High Court, Administrative Court: on 13 April 2022, Mr C M G Ockelton, sitting as a Deputy Judge, varied the costs capping order prospectively from the date of his order. Citation not stated in the judgment.
• High Court, Administrative Court: on 25 January 2022, Mr T Smith, sitting as a Deputy Judge, granted permission for judicial review and made the original costs capping order. Citation not stated in the judgment.