Duncan Lewis were today granted permission to appeal to the Court of Appeal against decisions refusing to award costs to the Claimants in the High Court in a test case. The Court indicated that it would consider three key points:

  1. The correct application of the well known test in Boxall1
  2. Whether the Boxall test needs revision in the light of the report by Lord Justice Jackson
  3. Whether the Court of Appeal has jurisdiction to interfere with Orders as to costs made in the Administrative Court following written submissions.

Background

In each of the five joined cases in the Court of Appeal:

  • the Claimant had brought a claim for judicial review following a failure or refusal on the part of the Secretary of State to grant permission to work,
  • the judicial review had become academic, as the claimant had become entitled to work in the course of proceedings,
  • the claims were settled save as to disputes over costs, and the parties agreed to resolve the issue of costs by making written submissions to the Court,
  • the decision was taken after the judgment of the Supreme Court in ZO (Somalia) [2010] WLR 1948, which found that the policy of the Secretary of State in denying the right to work to those awaiting a decision on a second application for asylum was unlawful, but nonetheless
  • the resulting decision did not award the Claimant costs,

It is worth noting that in several other cases, on essentially identical facts, the Claimants were awarded their costs.

Correct application of Boxall

The Claimants / Appellants contend that the correct test for a judge making decisions as to costs is to first consider whether it is obvious which party would have won if the case had fought to a conclusion, on the basis of the law as it stands at the time that the costs judge makes his decision. The appealed cases demonstrate that some judges have been considering whether it was obvious at the time proceedings were commenced, or when they were compromised.

Reconsideration of Boxall

The case of Boxall has been criticised in many quarters in recent times. In a report into the issue Lord Justice Jackson remarked that the principal criticism was that as it pre-dated the pre-action protocol in judicial review claims it gave insufficient weight to the steps taken by each party to resolve the dispute before lodging a claim in Court. He went on to recommend that:

'...in any judicial review case where the claimant has complied with the protocol, if the defendant settles the claim after (rather than before) issue by conceding any material part of the relief sought, then the normal order should be that the defendant pays the claimant's costs. A rule along these lines would not prevent the court from making a different order in those cases where particular circumstances warranted a different costs order.'

Jurisdiction

The court of Appeal may also consider whether it has jurisdiction to hear these appeals following the judgement in RS (Sri Lanka) [2011] EWCA Civ 114. It should be noted however that RS is a case about internal management of costs points in the Court of Appeal, and is not itself an appeal against an Order of the High Court.

Acknowledgements

Duncan Lewis gratefully acknowledge the assistance of Richard Wilson QC of 36 Bedford Row and Philip Nathan of Landmark Chambers who have agreed to take this case forward on a contingency fee basis.

Footnote

1 R (Boxall) v Waltham Forest LBC (2001) 4C.C.L Rep 258

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