This test case was heard to give general guidance as to the correct basis of the order for costs where the appeal is disposed of by consent in circumstances in which the appellant has obtained a benefit – either a remittal to the court below to re-hear the appeal or some other benefit from the appellate process. The Court joined three separate appeals which raised similar issues and heard them together: two of those were Duncan Lewis cases.
The Court held that although statutory appeals to the Court of Appeal from the Upper Tribunal have distinctive features, CPR 44.3 applies to them. Accordingly, the starting point is that the Court has a discretion as to whether to make an order that costs are payable by one party to the other (CPR 44.3(1)(a)). If it decides to make such an order, the general rule is that the "unsuccessful" party will be ordered to pay the costs of the "successful" party, although the Court may make a different order (CPR 44.3(2)).
The Secretary of State had had the practice of suggesting that an appeal in Court of Appeal had only an ‘arguable prospect of success’, but that it would be proportionate to deal with the matter in the Upper Tribunal. They would then argue that as there was no ‘clear winner’ in the Court of Appeal each party should pay its own costs. However the Court of Appeal settled this issue once and for all, holding that ‘Whatever the Secretary of State may say, the making of the consent order by this Court assumes an error of law, without which there would be no jurisdiction for this Court to remit or for the Upper Tribunal to revisit the case.’
The Court accepted that there may be cases where there are features or complexities which would justify the Court deciding not to make a positive costs order where an appeal is remitted to the Upper Tribunal they should be relatively rare, and based upon the specific facts of the individual case. The Court rejected any suggestion that justifies a default position of "no order as to costs" in appeals from the Upper Tribunal. The Court of Appeal overturned the earlier decision on this point in Sengoz v Secretary of State for the Home Department  EWCA Civ 1135.
The result of this case where an appeal to the Court of Appeal is based upon good grounds the Appellant’s costs will normally be paid by the Defendant, even if the matter does not go to a final hearing.