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R (Loucif) v. Secretary of State for the Home Department [2011] EWHC 3640 (Admin)

DATE: 01 Dec 2011

In this case, Ouseley J set down important guidance on the procedure by which a claimant can challenge the award of costs awarded to it when an application for permission to bring a judicial review claim is dismissed on the ground that the defendant has granted the relief sought and the claim has therefore become academic.

In the present case, by the time the application for permission came before HHJ Thornton QC (sitting as a Judge of the High Court) the claim had become academic since the Secretary of State had agreed to reconsider her decision. HHJ Thornton QC therefore dismissed the claim. However, he considered that since it was obvious that the Secretary of State would have lost had she not agreed to reconsider and he therefore awarded the Secretary of State to pay the Claimant’s costs, summarily assessed at £800.

The Claimant considered that the amount of costs awarded to him was too low. He therefore renewed his application for permission in order to challenge the award of costs at an oral hearing. The Secretary of State submitted that it was inappropriate for a claimant who was no longer seeking to pursue the underlying judicial review claim to use an application for renewal solely for the basis of challenging the quantum of costs awarded. Ouseley J agreed, holding that the appropriate procedure should be as follows:-

“6. The appropriate way was indicated by Carnwath LJ in Ewing v Office of the Deputy Prime Minister and others [2005] EWCA Civ 1583, pending any rule changes.  They are applicable, with minor changes, to the circumstances which arose here.  The judge refusing permission should include in the refusal a decision whether to award costs in principle and an indication of the amount which he proposes to assess summarily; the claimant should be given 14 days to respond in writing and should serve a copy on the defendant and the defendant should have 7 days to reply in writing.  Thereafter, the decision would be made by the judge on the papers.

7. The principle is perfectly clear.  Costs decisions, if objected to, should be dealt with by written submissions.  Both parties should supply their submissions, to the extent that they are aggrieved, within the timetable there indicated: 14 days for the person who is aggrieved by the order, 7 days to reply; and, if both are aggrieved, they both have 14 days to apply.  Here each could be aggrieved, one by the principle, the other by the quantum; but the same procedure applies to each.

8. In this case, the judge did not, in his order, set out any such timetable nor did he make explicit reference to any contest to his order in relation to costs being dealt with by paper submissions.  It is commonplace that orders in relation to costs are made in that form.  In many instances there is no need for written submissions because no issue is taken by the parties with the costs order that is made.  Where no timetable is set out, as is frequently the case, but nonetheless the parties wish to take issue with the order, the principles set out in Ewing, to which I have just referred, apply.  That is because the order as to the costs is effectively made without notice to the parties and the parties are entitled to make submissions that that order is wrong and should be set aside and replaced by another order.  That is so whether or not the order specifically says so, and the appropriate action in this case would have been for the aggrieved claimant to make written submissions to HHJ Thornton that that sum was too low, and he would, having heard what the defendant had to say about it, have been able to make a decision on paper and would not have been entitled to refuse to do so on the grounds that he had no jurisdiction.  He clearly does have jurisdiction.  The timetable set out in Ewing is implicitly a timetable attached to any order which deals with costs in the way this order did. 
   
9. I should add, however, that if permission is refused and an order for costs is made against the claimant, as is often the case, and there is a renewal application, the costs can sensibly and should be dealt with at the renewed oral hearing rather than there being a separate written debate about costs.  That is simply by far the most convenient way for dealing with the costs of a paper application where there is, in fact, an oral renewal challenging the refusal of permission.  That was not the case here because the claimant was perfectly content with the refusal of permission.”  
 

Ouseley J released his judgment from the ordinary prohibition on citation of permission judgments, on the basis that it raised an important point of general application.

Charles Banner appeared for the Secretary of State for the Home Department (instructed by the Treasury Solicitor), whose submissions on procedure were accepted.