If a Judicial Review case is successful, it may sometimes result in an inter-partes costs order being issued or agreed upon. In this situation, a Judicial Review costs schedule must be prepared and provided to the Paying Party. This is necessary should the parties be looking to agree on costs as part of the final order, or if they are attempting to negotiate the costs involved.

What is Judicial Review?

Judicial Review, otherwise known as CPR 54, is a process in Public Law where the Court examines challenges to decisions made by public bodies. These cases are handled by the Administrative Court, a division of the High Court, which deals with Judicial Reviews, statutory appeals, and extradition matters.

A Claimant may claim for Judicial Review if they believe a public body has overstepped its legal authority and ignored relevant factors, allowing irrelevant matters to influence an unreasonable decision. Here, public bodies come under scrutiny for violating procedural fairness by not following proper procedures or providing an opportunity to be heard.

The main aim of Judicial Review is to ensure that public bodies act within their legal boundaries by adhering to their own policies and upholding the rule of law. The process begins by seeking permission from the Court to proceed with a Judicial Review hearing. This permission is typically granted based on a written submission, although it can be contested at an oral hearing. If permission is granted, the review could result in an overturn of the decision or an issue of instructions on how the public body should proceed. Judicial Review focuses on the legality of government actions rather than individual rights or private disputes.

Purpose of the Judicial Review Costs Schedule

In any successful Judicial Review action, an inter-partes costs order may be agreed upon by the parties or ordered by the Court in accordance with the general civil rules on costs under CPR 44.2(2)(a). To reach an agreement on costs, parties should prepare a Judicial Review costs schedule. Such a schedule will be presented in either the form of an N260 or an informal Schedule of Costs. In England and Wales, the Judicial Review costs schedule is typically submitted in the lead-up to an interim or final hearing, particularly when there are likely disputes over liability for costs or when one party seeks a Court order requiring the other party to pay costs.

If there is a general agreement on the principle of one party paying the costs of the other, the Judicial Review costs schedule may be prepared and served at this stage as a preliminary attempt to resolve costs before incurring further expenses in detailed assessment proceedings.

The primary purpose of the costs schedule is to ensure that transparency remains a focus. This is targeted through providing a clear, itemised breakdown of the expenses incurred throughout the litigation process. This helps the Court assess the reasonableness and proportionality of the claimed costs in accordance with the overriding objective of the Civil Procedure Rules (CPR). Additionally, it serves as a foundation for resolving any cost disputes, whether through negotiation or formal cost summary assessment.

If the parties fail to reach an agreement on the contents of the Judicial Review costs schedule, the subsequent Bill of Costs can be compared to the informal schedule. For this reason, it is essential to ensure that your costs are accurately claimed from the outset.

The role of Legal Costs in Judicial Review Cases

Legal costs play a crucial role in Judicial Review cases, particularly when disputes arise over which party should bear the financial responsibility. In a successful Judicial Review, the Claimant is typically entitled to recover their legal costs from the Defendant. However, if the claim proves unsuccessful, the Claimant may be liable for the Defendants costs. The process of recovering these costs is governed by specific rules under CPR 44 to 47.

Costs in Judicial Review cases often accrue early on in the process. Since permission must first be obtained on the papers, the preparation of the Claim Form for Judicial Review is similar to preparing for a trial. This includes the need to compile evidential and authority bundles, as well as files, such as a Detailed Statement of Facts and Grounds, outlining the specifics of the challenge.

Given the nature of Judicial Review proceedings, legal aid is frequently involved in these cases, especially in immigration and asylum disputes. If legal aid is consulted and the matter is unsuccessful, certain circumstances may allow for recoverable costs from the legal aid agency. This possibility is subject to the rate of legal aid granted.

What should be included in a Judicial Review Costs Schedule?

Form N260 can serve as a general guide for outlining costs, but it often lacks the level of detail needed to thoroughly scrutinise the costs being claimed. In such cases, the Receiving party may provide an informal Schedule of Costs or Bill of Costs, allowing for a more detailed item-by-item review of the reasonableness and proportionality of the costs.

Claimants – The schedule will detail the legal costs incurred by the Claimant in bringing the case forward. This includes solicitor fees for actions such as:

• Following the pre-action protocol
• Preparing bundles for the proceedings
• Initiating litigation
• Counsel’s fees for advising and drafting the Grounds

Defendants – The Defendant, often a public authority or government body, typically submits their costs schedule alongside the Acknowledgement of Service, along with the Summary Grounds of Defence. This outlines the costs incurred in defending the Judicial Review up to that point. Updated Judicial Review costs schedules may also be required before any subsequent oral permission hearing to give an estimate of the anticipated costs of either party being successful. This enables the High Court Judge to summarily assess any costs at the conclusion of the hearing.

If the claim proceeds to a substantive hearing (the main Judicial Review hearing) following the granting of permission, then full costs schedules will need to be presented, outlining both parties’ incurred and anticipated costs up to the conclusion of the proceedings.

CPR 44: Judicial Review Costs Schedule

In England and Wales, costs schedules are required to comply with the Civil Procedure Rules (CPR). CPR 44 outlines the general rules on costs for civil litigation and must be adhered to in compliance with Practice Direction 44 Para 9.5(4), as well as costs schedule requirements. This provision mandates that any costs schedule must be filed at least 24 hours before an interim hearing and no less than 48 hours prior to any final hearing or trial.

When determining who should bear the costs of the proceedings at any hearing, the Court will exercise its discretion. The decision will be influenced by various factors, including the conduct of the parties, the outcome of the proceedings, and whether the parties acted reasonably throughout the process.

CPR 44.2

(1) The Court has discretion as to –

(a) whether costs are payable by one party to another;

(b) the amount of those costs; and

(c) when they are to be paid. 

(2) If the Court decides to make an order about costs –

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) the Court may make a different order.

CPR 44.3 specifically addresses the basis for the assessment of costs, stipulating that costs can be assessed either on the standard or the indemnity basis.

CPR 44.3

(1) Where the Court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs –

(a) on the standard basis; or

(b) on the indemnity basis,

In either case, the Court will not allow costs that have been unreasonably incurred or are unreasonable in amount.

Additionally, CPR 44.3(2) specifies that when costs are assessed on a standard basis, the Court can only allow costs that are deemed reasonable and proportionate. If doubt should arise regarding whether the criteria for costs has been met, this should be resolved in favour of the paying party (CPR 44.3(2)(b)). However, when costs are assessed on an indemnity basis, the issue of proportionality is no longer a cause for concern, and any raised doubt over reasonableness can be resolved in Favor of the receiving party.

In Judicial Review cases, the “loser pays” principle typically applies, meaning the unsuccessful party may be ordered to pay the successful party’s reasonable costs. This order, however, remains subject to judicial discretion. In certain public interest cases, the Court may make protective cost orders (also known as cost-capping orders), which can limit the Claimant’s financial liability.

The role of a Costs Draftsman or a Costs Lawyer

Given the complexity of Judicial Review proceedings and costs recovery, the role of Costs Draftsman and Costs Lawyers is essential. These experts prepare clear costs schedules, ensuring all relevant costs are included. They can assist with preparing Bills of Costs and negotiating any disputes that arise during the process. Clients are also represented and supported in any Detailed Assessment Hearings that must be attended.

Their expertise is particularly valuable when a Defendant contests costs, especially in cases involving legal aid and funding, ensuring accurate presentation and inclusion of all relevant costs.

How can Greener Costs assist

At Greener Costs, we offer expert support in managing Judicial Review Costs. These cases are often funded through legal aid, and we can help with the quantification and recovery of costs from the Legal Aid Agency (LAA) using CCMS. If an inter-partes costs order has been made, we can assist in recovering your costs from the Paying Party.

Our team of experienced Costs Draftsman and Costs Lawyers specialises in recovering costs in Judicial Review matters. We can help with costs quantification, prepare your Bill of Costs for assessment, and represent you during detailed assessment proceedings, including any final hearings.

If you require more information about Judicial Review Costs Schedule, we encourage you to contact us at info@greenercosts.co.uk or call 01204 263047. The Greener Costs team will respond promptly to assist you.