Cost implications at the permission stage for those bringing judicial reviews

This blog was first posted on Herbert Smith Freehills Public Law Notes.

In a rare intervention on the question of costs, the Supreme Court has confirmed in CPRE Kent v Secretary of State for Communities and Local Government [2021] UKSC 36 that those bringing claims for judicial review and statutory challenges can face exposure to multiple sets of costs at the permission stage.

Key points

• The court can order that the applicants are required to pay costs of multiple defendants and interested parties at the permission stage.
• The position is different at later stages of proceedings (or if permission is reconsidered at an oral hearing), where it will be more unusual for interested parties to be able to recover their costs.
• In all cases it remains true that costs need to be reasonable and proportionate.

Background

The Kent branch of the Campaign to Protect Rural England (CPRE) sought to oppose a plan adopted by Maidstone Borough Council (the Council). A claim was made by CPRE in which it named the Secretary of State for Communities and Local Government as first defendant, the Council as second defendant and Roxhill Developments Ltd as an interested party.

The claim was made under Part 8 (and Practice Direction 8C) of the Civil Procedure Rules (the CPR). The rules applicable to claims made under these provisions are similar to those for judicial reviews brought under Part 54 of the CPR. In both forms of proceedings, there is first a permission stage, as part of which defendants and other parties served with the claim form wishing to take part in the claim should file an acknowledgment of service. If permission is granted, there will then be a substantive stage in which the case is determined.

At first instance, Lang J refused permission for CPRE’s claim and made costs orders in favour of each of the first defendant, the second defendant and the interested party. Each of these parties had filed an acknowledgment of service and a summary of grounds for contesting the claim.

The claimant did not challenge the refusal of permission but did appeal the costs award which had been made. The costs award was initially affirmed by HHJ Evans-Gordon. CPRE was then given leave to appeal to the Court of Appeal, which ultimately dismissed CPRE’s appeal. Giving the judgment of the Court of Appeal, Coulson LJ held that the ordinary rule on costs (whereby a claimant whose claim is refused at an early stage will usually be liable for the other parties’ reasonable and proportionate costs) applies at the permission stage of judicial review and statutory challenges. On this basis there was therefore no need for an additional defendant or interested party to show “exceptional” or “special” circumstances in order to recover their reasonable and proportionate costs.

The Supreme Court granted permission to appeal.

The question for the Supreme Court

Giving the judgment of the Supreme Court, Lord Hodge emphasised that, in line with the approach set out in R (Gourlay) v Parole Board [2020] UKSC 50, the Supreme Court will only rarely interfere with decisions relating to costs, the exception being where the appeal raises a question of law of general public importance. Lord Hodge noted that the Court of Appeal has principal responsibility for monitoring and controlling developments in practice (including in relation to costs). This is because the Court of Appeal hears many more cases so is better placed to assess what changes are appropriate, but also because the Supreme Court cannot respond with the same speed, flexibility and sensitivity as the Court of Appeal.

It was therefore for CPRE to show that the Court of Appeal had erred in law.

Judgment

Lord Hodge held that the Court of Appeal had not erred in law and accordingly dismissed CPRE’s appeal.

In support of its appeal, CPRE sought to rely on the House of Lords decision in Bolton MDC v Secretary of State for the Environment [1995] 1 W.L.R. 1176 as authority for the proposition that, where there is multiple representation, the losing party will not normally be required to pay more than one set of costs. CPRE argued that there is no principled justification for adopting a different approach at the permission stage of proceedings.

However, the Supreme Court emphasised that Bolton was concerned with the costs incurred at a substantive hearing and that it had been decided prior to the introduction of the CPR (which had introduced the acknowledgment of service procedure). On an examination of case law decided since the introduction of the CPR, the Supreme Court found there to be established authority that the procedural innovations in the CPR (ie, the acknowledgment of service procedure) justify an exception from the practice set out in Bolton. That is because, under the CPR, in circumstances where a party (including an interested party) wishes to contest a claim, filing an acknowledgment of service is mandatory (and costs consequences can follow if they do not).

Comment

In light of the Supreme Court decision, it is now clear that interested parties may be able to recover their costs for participating in the permission stage of judicial reviews and statutory challenges, in circumstances where permission is refused and provided that those costs are reasonable and proportionate.

From a claimant’s perspective, this could be viewed as inhibiting access to justice, as claimants may be unwilling to face exposure to multiple sets of costs. There will also be uncertainty in any given case as to how the court will exercise its discretion in this regard.

However, this will be welcome news to interested parties who now have the benefit of clear Supreme Court authority in their favour when seeking to recover their costs for successfully resisting permission in judicial review or statutory challenges.

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