Public and Commercial Services Union, R (on the application of) v The Secretary of State for the Home Department

In judicial review costs disputes, obtaining the relief sought does not by itself establish entitlement to costs. Where proceedings become academic for reasons not attributable to the claim, there is generally no prima facie entitlement unless it is tolerably clear, without detailed argument, that the claimant would probably have succeeded at trial. Causation may be shown if the claim changed the outcome or achieved it sooner than would otherwise have occurred. A political commitment to reverse legislation is not an admission that the legislation was unlawful. On an appeal concerning costs, the appellate court should interfere only for an error of principle or law, or where the decision is wholly wrong. The appeal was dismissed because the outcome would probably have occurred independently of the claim.

The appellant trade union challenged regulation 3 of the Strikes (Minimum Service Levels: Border Security) Regulations 2023/1353 as an unlawful interference with Article 11 rights. After a change of government, a Minister stated that the Government intended to repeal the Strikes (Minimum Service Levels) Act 2023 and that the powers would not be exercised in the meantime. The claim was discontinued, with costs reserved.

HHJ Jarman KC made no order as to costs, finding that the claim had become academic for political reasons following the change of government, rather than because of the claim. The union appealed, arguing that it had achieved substantial success, that the causation finding was unevidenced, and that the reasons were inadequate. The central issue was whether the costs decision involved an error of principle or law.

1. Appeal dismissed. Bean LJ gave the leading judgment, with Peter Jackson LJ and Elisabeth Laing LJ agreeing. The appellate approach to costs decisions is that interference requires an error of principle or law, failure to take account of a material factor, or a conclusion that is wholly wrong after balancing the relevant considerations: Roache v News Group Newspapers Ltd [1998] EMLR 161.
2. The court confirmed the distinction drawn in R (M) v Croydon LBC [2012] EWCA Civ 595. A claimant who obtains all or substantially all the relief sought will ordinarily be the successful party. However, where a judicial review claim becomes academic for reasons not attributable to the proceedings, there is no prima facie entitlement to costs unless it is tolerably clear, without detailed argument, that the claimant would probably have succeeded at trial.
3. The relevant causation inquiry is whether the proceedings changed the outcome or achieved the desired result sooner than would otherwise have happened. Relief obtained independently of the proceedings is insufficient. The court relied on the reasoning in Speciality Produce Ltd [2014] EWCA Civ 225, R (RL) v Croydon LBC [2018] EWCA Civ 726, ZN (Afghanistan) [2018] EWCA Civ 1059 and R (Parveen) v Redbridge LBC [2020] EWCA Civ 194.
4. The Minister’s description of the legislation as unduly restrictive reflected the Labour Party’s political position. It did not amount to an admission that the regulations breached Article 11, were ultra vires, or would have been struck down at trial. The commitment to repeal was sufficiently clear to support the conclusion that the outcome would probably have occurred even without the claim.
5. The court accepted that an incoming Government cannot avoid legal responsibility for acts of a previous administration. That constitutional point did not answer the separate question whether the litigation caused the outcome. HHJ Jarman had therefore made no error justifying appellate intervention, and his order making no order as to costs was upheld.

• Court of Appeal (Civil Division) dismissed the appeal against the costs order: [2025] EWCA Civ 1644.
• High Court of Justice, King’s Bench Division, Administrative Court, HHJ Jarman KC, made no order as to costs on 20 February 2025.