The Costs of Judicial Review
Judicial Review (JR) is rarely far from centre stage in the legal news. It is a mechanism to hold governmental bodies accountable for their decisions and actions. Recently, there has been some debate over the entire costs regime that is found within JR. In litigation, the general rule is that the winner of the case has their legal fees paid for by the losing side. However, if a Claimant fails to consider methods of reaching settlement before pursuing a JR claim, they may be ordered to pay their costs for any resultant litigation, even if they are successful in their claim. There are a number of other costs orders that a judge can make, as outlined in the Civil Procedure Rules (CPR) at paragraph 4.2 of Practice Direction 44. The court has discretion in awarding costs, as explained in rule 44.2 of the CPR. It ought to be noted that JR has a separate section in CPR 46.15 regarding costs in special circumstances, although this is not covered in this article.
Within the legal sphere, JR has been viewed as a last resort for some time and this remains at the cornerstone of public law. If this were not the case, the courts would be subject to ‘floodgate litigation’, whereby they would simply be overwhelmed by the volume of cases. Therefore, a Claimant should use and exhaust any and all available remedies (if they are in fact available) before asking the court to judicially review the alleged unlawfulness of the actions of a public body. There are High Court authorities which indicate that permission to apply for JR should be refused where there are alternative remedies available: Glencore Energy UK Limited v Commissioners of HMRC  EWHC 1476 (Admin) and Gifford v Governor of HMP Bure and another  EWHC 911 (Admin). One ought to have further regard to the cases of: R (Cowl) v Plymouth City Council  EWCA Civ 1935 and more recently, R (Zahid) v The University Of Manchester  EWHC 188 (Admin) which also lend support to this proposition.
A complex issue arose in the case of R (LD) v NHS Havering Clinical Commissioning Group (there is no transcript of the judgment) before Mr Justice Butcher in the High Court on 29th August 2018. This matter regarded the costs involved in a JR case. At the centre of the dispute were complaints about the alleged inadequacies of a care package that had been given to the Claimant. It should be noted that the Claimant secured significant improvements to that particular care package during the course of the litigation. However, the Claimant in that case failed to use the NHS Complaints Procedures to attempt to resolve his initial complaints. For a full insight into the case and the specific implications of the case for JR claims against the NHS, visit David Lock QC's insightful article on LinkedIn. Mr Lock QC appeared for the Defendants in that matter. The current article differs, exploring the costs position in JR and generally in litigation.
Mr Justice Butcher denied the Claimants any costs in this case, contrary to the conventional rule for when a Claimant is successful in the proceedings. It is important to note that the Clinical Commissioning Group did agree that the original care package should have been amended to reflect an increase in the care afforded to the Claimant. Clearly, if the Claimant had used the alternative avenue of the relevant NHS Complaints Procedures, the issue would not have needed the intervention of the court. The Claimant would have received the increase that had been originally sought. If, however, the complaints procedure had been used and the original, unlawful decision had not been reversed, then JR would have been the suitable avenue to use.
The reasoning from this case can be transferred into all types of proceedings and is consistent throughout the UK legal structure. This is because the parties to litigation and their respective legal representatives have a duty to assist the court in furthering the Overriding Objective under Part 1 of the CPR. This includes conducting proceedings at a proportionate cost. Arguably, alternative dispute resolution (ADR) is cheaper than court action and can result in an amicable result being achieved. The refusal to engage in ADR may result in adverse costs orders being made against parties, even if they are successful at a later stage. Regard ought to be had to the following cases, which explain the position thoroughly: Dunnett v Railtrack  EWCA Civ 303; Halsey v Milton Keynes NHS Trust  EWCA Civ 576 and PGF II SA v OMFS Company  EWCA Civ 1288.
There are future uncertainties surrounding the costs regime within JR. It has been argued that there ought to be ‘costs shifting’, which essentially requires a successful Claimant to still pay at least a portion of their own legal costs. Currently, costs shifting is only a force in the realm of personal injury claims. Whether this is transplanted into the arena of JR is yet to be seen, although it is solely for the Government to decide.
Clearly, in many types of litigation the parties should bear in mind the potential for ADR before commencing judicial proceedings. This is regardless of how strongly they feel about their case. Whilst it is at the discretion of the court, litigants instigating JR proceedings run an appreciable risk that they will end up with an adverse costs order against them even if they are ultimately successful.