City Portfolio Ltd, R (on the application of) v Lancaster City Council

In an academic judicial review, costs success depends on the outcome achieved through the claim, not necessarily on vindication of the legal grounds or ultimate success on the merits. Merits reconsideration following public consultation may constitute the relevant outcome even where the eventual decision remains adverse to the claimant.

The court must assess whether the claim caused or contributed to that outcome. A defendant relying on pragmatic or independent reasons should provide a clear explanation supported by candid disclosure. The decision remains fact-specific, but defendants are generally expected to accommodate an established grievance at the earliest stage. Costs may therefore be awarded for part of the proceedings only.

The claimant challenged Lancaster City Council’s urgent designation of a conservation area, alleging defects including lack of consultation, inadequate inquiry and irrationality. Permission was granted on all six grounds.

While the claim was pending, the Council conducted a public consultation and reconsidered the merits of the designation. It then withdrew the challenged decision and adopted a varied designation. The claim consequently became academic and was withdrawn by consent. The parties disputed whether the claimant had achieved success for costs purposes and whether there was a causal link between the claim and the Council’s later reconsideration.

1. Outcome. The claimant achieved the relevant outcome sought in the judicial review: a merits reconsideration informed by public consultation. The fact that the eventual decision remained adverse to the claimant did not prevent costs success.
2. Meaning of success. In judicial review costs determinations, success is ordinarily assessed by reference to the relief or outcome sought in the claim. It is not a rigid precondition that the claimant be vindicated on the substantive issue or shown to have won had the claim proceeded to trial. An inquiry into who would have won would improperly revive the approach associated with R (Boxall) v Waltham Forest LBC.
3. Causation and evidence. The relevant causal question concerned the decision to undertake consultation and reconsider the merits, rather than the later merits decision itself. The Council’s submissions were not evidence. Its report post-dated the decision to consult, and there was no candid disclosure or factual evidence explaining why consultation had been initiated. In the circumstances, the judicial review claim had caused or contributed to that decision.
4. Timing and fairness. The court should require a clear explanation and candid disclosure where a defendant says that voluntary action was pragmatic or unrelated to the litigation. Defendants should generally accommodate a grievance at the pre-action stage. A later response may avoid costs consequences where the claimant did not identify that course before proceedings and the circumstances provide good reason for a more generous costs approach.
5. Order. The defendant was ordered to pay the claimant’s costs incurred after 11 March 2022 on the standard basis, subject to detailed assessment if not agreed. No costs were awarded for the earlier period.

This was a first-instance costs determination on the papers following withdrawal by consent of an academic judicial review claim. The judgment does not state any subsequent appellate history.