Paul Somers, R (on the application of) v Parole Board for England and Wales

A judicial or quasi-judicial body will ordinarily avoid a costs order when it maintains a neutral stance in judicial review proceedings. That protection is not absolute. Costs may be ordered where the body acts improperly or unreasonably, including by unreasonably refusing a consent order which would bring an obviously meritorious claim to an end. The general costs discretion remains wide and must be exercised judicially and flexibly. A tribunal does not become an active participant merely because it declines to concede a claim; active participation, improper conduct and unreasonable conduct are distinct grounds. The [2004] 1 WLR 2739 approach in Davies remained applicable to the Parole Board.

The claimant successfully challenged a Parole Board decision refusing an oral hearing. The court had allowed the judicial review on 10 March 2023 and delivered reasoned judgment on 15 May 2023, relying particularly on the guidance in R (Osborn and Booth) v Parole Board and related parole authorities.

The present judgment determined costs following written submissions. The claimant argued that the Board had unreasonably refused to consent to judgment despite the claim being clear. The Board maintained that it had remained neutral and that costs could arise only for impropriety or active participation. The central issue was whether unreasonable refusal to sign a consent order could justify costs against a judicial body.

1. Costs jurisdiction and governing principle. The court’s jurisdiction to award costs is wide. Although special considerations apply to a body exercising a judicial function, the principles in R (Davies) v Birmingham Deputy Coroner remain applicable. A judicial body is ordinarily protected where it remains neutral and allows its decision to speak for itself, but costs may be ordered for improper or unreasonable conduct or active participation.
2. Consent orders. The authorities did not remove unreasonable refusal to sign a consent order from the recognised grounds for ordering costs. Gourlay did not decide that issue and did not silently revise Davies. The relevant test did not require impropriety or wholly unreasonable behaviour as an additional threshold.
3. Application. The Board conceded that the Article 5(4) issue did not arise. The proposed second issue was, in substance, a request for guidance to apply Osborn. The court considered the case clear: the Board had plainly failed to follow the Osborn guidance, and the opportunity to resolve the claim by consent had not been taken. The Board’s position could be regarded as effectively neutral, but that did not prevent a finding of unreasonable conduct.
4. Order. The failure to agree that the decision was obviously flawed, and to consent to an order bringing the proceedings to an end, was unreasonable. The Board was ordered to pay the claimant’s costs, including the costs of the costs application. The court emphasised that success alone will not invariably justify costs against a tribunal.

The judgment records that the substantive judicial review claim was allowed on 10 March 2023, with reasoned judgment delivered on 15 May 2023. This judgment dealt only with the consequential costs determination.