Shane Wylie, R (on the application of) v Parole Board for England and Wales (Costs)

A judicial or quasi-judicial body which remains neutral in judicial review proceedings is not ordinarily an unsuccessful party for costs purposes. The court retains a residual discretion under Civil Procedure Rules 1998, rule 44.2, guided by established principles of practice.

No heightened Wednesbury threshold applies to a neutral body’s refusal to consent to quashing. The clarity of the claimant’s merits is relevant to whether that refusal was unreasonable, but the court may award costs even where the highest degree of unreasonableness is absent. On the facts, the claim was not sufficiently obvious and costs were not ordered against the Board.

The claimant successfully challenged a Parole Board decision refusing him an oral hearing. Because his annual review was then before the Board and his request for an oral hearing had been granted, the court granted a declaration rather than quashing the decision. Costs were initially awarded against the Board after it declined to agree a consent order.

The Board applied to set aside that costs order. The issue was whether a neutral Parole Board should pay costs because its refusal to consent to quashing had been unreasonable, and whether that required Wednesbury unreasonableness or an obviously successful claim.

1. The previous costs order was set aside. The Board had neither conceded nor challenged the claim and was not an unsuccessful party within rule 44.2 of the Civil Procedure Rules 1998. The court nevertheless retained a residual discretion, to be exercised in accordance with the principles of practice identified by the higher courts.
2. There was no justification for imposing a high threshold of Wednesbury unreasonableness. A refusal to consent may provide a clear basis for costs where no other Board acting reasonably would have refused. However, failure to reach that degree of unreasonableness does not prevent an award of costs. The apparent strength or weakness of the claim informs whether the refusal was unreasonable in the circumstances.
3. The authorities, including Davies, Gourlay, Faqiri and Somers, supported that approach. They did not establish a requirement of impropriety or wholly unreasonable conduct before costs could be ordered.
4. Although the substantive judgment identified particularly strong reasons why an oral hearing should have been granted, the claim was not obviously bound to succeed when the consent-order request was made. The claimant was still facing another rape complaint whose investigation had not closed. The Board’s refusal was therefore not unreasonable on the facts.
5. The costs award against the Board was set aside. The order for assessment of the claimant’s publicly funded costs remained. Consequential matters were to be agreed or submitted within 14 days.

The judgment concerned an application to set aside a costs order made in the claimant’s judicial review proceedings. The substantive judgment had granted a declaration that the Parole Board’s decision was procedurally unfair, but had not quashed it.