What is a success in judicial review proceedings? This was the question considered recently by the Court of Appeal in the case of R (Tesfay and others) [2016] EWCA Civ 415. The case involved multiple claimants who withdrew their judicial review claims after the Secretary of State conceded that the certifications of their human rights claims as unfounded were flawed. The Secretary of State had previously certified the claims as unfounded, but later withdrew the certifications as a result of a decision by the Supreme Court. As a result, the claims for judicial review were settled and the claimants sought their costs.

The general rule as to costs is that the unsuccessful party will be ordered to pay the costs of the successful party, although the court has the discretion to make a different order. The Court of Appeal confirmed that this was the correct approach and therefore the Court had to determine what should be regarded as a success in public law litigation.

The Court of Appeal found that in public law litigation, securing reconsideration of a decision which is challenged is usually considered a success for costs purposes. The fact that the reconsideration might result in a new decision which goes against the interests of the claimant is not a reason to refuse costs for the judicial review. Once the Court has found that the claimant has been successful, the Court should then consider if there is any good reason for not awarding costs.

In the current case, the Court found that there were good reasons to not award costs in some cases. The Court found that the human rights certifications were crucial to some of the claims whereas, in others, the withdrawal of the certifications only had a limited impact on their cases. In addition, the Court found that there were reasons relating to the conduct of some of the claimants which meant that their costs should not be awarded.

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Melanie Carter

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Posted on 01/06/2016 in Legal Updates

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