The issue of costs specifically in judicial review proceedings was considered by Scott Baker J, as he then was, in Boxhall v the Mayor and Burgesses of Waltham Forest London Borough Council  All ER (D) 2445 at paragraph 22. Having considered the authorities, Scott Baker J set out the principles, approved by the Court of Appeal in Kuzeva-v-Southwark LBC  EWCA Civ 781, which he found were appropriate and applicable, where the substantive proceedings had been resolved without a trial but there was no agreement about costs.
(a) It will ordinarily be irrelevant that the claimant is legally aided
(b) The overriding objective is to do justice between the parties without incurring unnecessary court time and consequential additional costs.
(c) At each end of the spectrum there will be cases where it will be obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will in different degrees be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.
(d) In the absence of a good reason to make any other order, the fall back is to make no order as to costs.
(e) The court should take care that it does not discourage parties from settling judicial review proceedings, for example by a local authority making a concession at an early stage.
The appropriateness of this approach today however is, especially since the introduction of the pre-action judicial review protocol in December 2001, to be strongly doubted. The Court of Appeal granted permission to appeal on the 21st March 2011 in the case of R(on the application of AK, Afghanistan) & Ors-v-Secretary of State for the Home Department  EWCA Civ 436 and one of the grounds was that, in the words of Lord Justice Kay, "...we think that the appellants should have the opportunity to argue in this court that the Boxhall principles should be reviewed in the light of the observations made by Jackson LJ in his report". This last reference is to Lord Justice Jackson's inquiry into litigation costs. On the 21st December 2009 his "Review of Civil Litigation Costs: Final Report" was published and this had the following reference to Boxhall (my emphasis).
4.12 Need for modification. The Boxall approach made eminently good sense at the time that case was decided. However, now that there is an extremely sensible protocol in place for judicial review claims, I consider the Boxall approach needs modification, essentially for the reasons which have been urged upon me during Phase 2.
4.13 Recommendation. I 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. Accordingly, I substantially accept CLASC’s second proposal.
At the time of writing this short note the appeal has yet to be heard.
Article by Andrew Lane
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.