Suzanne Merrills v Secretary of State for Levelling Up, Housing and Communities

Costs in judicial review proceedings remain a matter for the court’s discretion. The usual event-based approach does not create hard and fast rules for the costs of interested parties. An interested party may recover costs reasonably incurred in taking a positive step necessary to protect its position, including filing an acknowledgment of service and an application addressing jurisdiction. Once another party advances the same arguments, however, continued active participation may be unnecessary. The interested party should ordinarily liaise with that party and keep a watching brief, unless its own participation materially assists the court. Costs should therefore be limited to work that was reasonable and proportionate in the circumstances.

The claimant’s applications for an extension of time and for relief in relation to jurisdiction were unsuccessful. The defendant obtained a declaration that the court had no jurisdiction and sought its costs. The second interested party also sought costs after filing an acknowledgment of service and making an identical jurisdiction application.

The claimant accepted liability for the defendant’s costs but challenged their reasonableness. She opposed the second interested party’s recovery on the basis that interested parties should not generally recover costs. The court considered the proper approach to the defendant’s assessment and to the second interested party’s entitlement and quantum.

1. Defendant’s costs. The claimant was the unsuccessful party and was liable in principle for the defendant’s costs. The court reduced the solicitors’ inter partes costs to £7,500 because the issues were narrow and an experienced fee earner was not required for all preparatory work, much of which involved routine correspondence. Counsel’s costs and disbursements were unchallenged and appeared reasonable and proportionate.
2. Interested-party costs. Costs follow the event only as a usual rule. The court retains a discretion after considering all the circumstances. Bolton Metropolitan Borough District Council v Secretary of State for the Environment (Costs) did not establish a general rule that an interested party could not recover costs. The approach was informed by CPRE (Kent) v SSCLG, which recognised that Civil Procedure Rules 1998 Part 54 could justify recovery for preparing and filing an acknowledgment of service and a summary of grounds, while attendance at a permission hearing was treated differently.
3. It was reasonable for the second interested party to file an acknowledgment of service and make an application for a declaration on jurisdiction. Once the defendant made the same application and advanced the same arguments, however, active participation by the interested party was unnecessary. It should have liaised with the defendant and kept a watching brief. Its arguments did not materially add to the defendant’s case, and one additional service point was abandoned.
4. The interested party could recover reasonable costs of the necessary initial steps, liaison and watching brief. The amount could not be assessed from the schedule, so the parties were invited to agree directions for a revised schedule, objections and summary assessment. The defendant’s costs were directed to be paid within 28 days, with an agreed order to reflect the ruling.