Public Law Solicitors

By James Packer

The Court of Appeal in the case of Bahta, a case 'of general application'¹, criticised the approach of Administrative Court Judges to relief and costs and forcefully restated the principle that their judgments represent the law until and unless they are overturned. Their Lordships gave revised guidance to the correct interpretation of the Boxall ² principles while emphasising the need to abide by the pre-action protocol in judicial review cases. The case also represents a landmark recognition of the duties of the courts to legally aided practitioners.

Background

The lead case on costs where a claim for judicial review settles before a full hearing is Boxall, well known to judicial review practitioners. The key principles in Boxall are: (i) the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.(ii) it will ordinarily be irrelevant that the Claimant is legally aided;(iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;(iv)at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing 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.(v) in the absence of a good reason to make any other order the fall back is to make no order as to costs.(vi) the court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.

These principles had come to be interpreted by a number of judges in the Administrative Court as virtually amounting to a licence for Defendants to await a decision on permission and then, if permission is granted, concede the relief requested but claim that they were doing so for 'pragmatic reasons' and resist costs. Duncan Lewis represented the five Appellants who in joined cases appealed against orders refusing them their costs on these bases.

Jackson LJ in his Review of Civil Litigation Costs: Final Report recognised that there was widespread concern and recommended an amendment to the Boxall principles. In the light of the importance of the issue to the profession generally and legally aided practitioners in particular the Public Law Project and the General Council of the Bar were granted permission to intervene.

The history of the claims for judicial review

The circumstances of these appeals as to costs illustrate the extent of the latitude Defendants were being given in judicial review proceedings. In each of the claims for judicial review the Claimant had sought permission to work ('PTW'). In four of the cases the Claimant relied upon the decision of the Court of Appeal in ZO³. In brief⁴ that case concerned the right of asylum seekers to access the employment market if their claim for asylum had been outstanding for more than one year before a decision was made on the application. This right was not in dispute as such, but the Secretary of State had held that it only applied to those making a first claim for asylum. The Court of Appeal in ZO held that it applied equally to those making subsequent claims. Nonetheless the Secretary of State either ignored or outright refused the applications for permission to work by these Claimants, and when proceedings for judicial review were instigated defended the claims on the basis that he was hoping to overturn the Court of Appeal's decision in ZO in the Supreme Court. In the fifth case, KD, the Claimant was in fact making his first claim for asylum, but the Defendant wrongly believed that it was a subsequent claim, apparently through oversight, and defended the claim on the same basis.

The Supreme Court heard the case of ZO, but dismissed the appeal of the Secretary of State holding that the argument of the Secretary of State could not be accepted 'on any conventional basis of reasoning'⁵. By this stage the Appellants, with the odd exception of poor KD who even on the Secretary of State’s own case ought never have been denied PTW, had been granted PTW or Indefinite Leave to Remain (and therefore no longer required a grant of PTW). KD too was eventually granted PTW a couple of months later⁶. In each of the cases the judicial review claim had therefore become academic before the matter had been decided at a substantive hearing.

In each case the Claimant had agreed that the claim for judicial review should be withdrawn, but requested his costs, pointing out that no aspect of the case of the Defendant had been upheld. The Defendant however refused to agree to meet these costs and the parties agreed that the issue of costs would be settled following written submissions to the High Court.

Jurisdiction

The Court of Appeal first considered whether it had jurisdiction to hear the appeal. There had been a suggestion that the recent decision of the court of Appeal in RS⁷ was a bar to the hearing of the appeal.

In RS the parties to an appeal in the Court of Appeal had agreed that the issue of costs would be settled by written submissions. It was held that the agreement precluded the disappointed party from seeking to re-open the question at an oral hearing in the same court. The Court of Appeal held that an Order in respect of costs is a final order and appealable in the ordinary way.

The revised approach to Boxall

(a) The relevant date for assessment of the merits of the claim

One of the issues between the parties was the relevant date for assessing the strength of the claim. The Appellants contended that the relevant date was that upon which the assessment took place, the Respondent that it was the situation at the commencement of proceedings, while in the cases under appeal some of the judges had adopted yet other dates such as the date the claim was adjourned or the date the claim was withdrawn save as to costs submissions.

It is perhaps surprising that this was in issue, given the earlier authority of Mendes⁸ which had held, though without detailed consideration of principles, that the question of who was the likely victor had matters proceeded to a final hearing was to be considered in the light of all the information available when costs were being assessed. In this case the significance was that in each case had the costs been assessed on that basis it was beyond argument that the Claimants would have won in the light of the decision of the Supreme Court in ZO, but not, in the mind of the judges, at the earlier date they had considered relevant.

The question is now decided beyond dispute with the decision in Mendes upheld.

(b) The Jackson report, the pre-action protocol and government departments

The Jackson report had recommended that:

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...in any judicial review case where the claimant has complied with the protocol, if the d