Judicial Review Costs
Issues as to Judicial Review Costs
The issue of judicial review costs will often arise as a consideration at the point of concluding any judicial review proceedings.
Often once permission is given to proceed to a judicial review hearing (either on the papers or on oral reconsideration), the Defendant may consider reassessing the initial decision to which the judicial review proceedings have been brought, as a result of which the issue of costs will come to the fore. Pursuant to CPR 44.2(2), the general rule is that the losing party is responsible for the successful party’s costs.
The issue of costs can however, be convoluted when no permission decision has yet been made, but the judicial review proceedings are to be withdrawn due to a change in circumstances or alteration in assessment as to merits of the case. In such cases, the Defendant may have taken action following the issuance of proceedings which nullify the consequences of the original decision, such that it renders the purpose of the judicial review proceedings inconsequential. In these circumstances if the parties are unable to agree the terms as to costs, submissions may need to be made to the Court to determine the issue of costs.
What Factors are Taken Into Account When Making a Costs Order?
CPR 54 provides some initial factors which may be taken into account when considering the issue of costs, but the Administrative Court Guide dedicates a full section as to the issue of costs. In considering the factors to be taken into account to make an order for costs in any non-clear cut matters as to which party has been successful, the guide stipulates issues as to conduct of the parties will be considered, including:
“S.184.108.40.206 conduct before as well as during the proceedings, and in particular the extent to which the parties followed the preaction Protocol (see para 6.2 of this Guide);
S.220.127.116.11 whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
S.18.104.22.168 the manner in which a party has pursued or defended their case or a particular allegation or issue; and
S.22.214.171.124 whether a claimant who has succeeded in the claim, in whole or in part, has exaggerated their claim.”
What Costs can be Claimed in a Successful Judicial Review Action?
In the event that the proceedings are considered successful, and an inter-partes costs order is made, then the Receiving Party can claim judicial review costs in line with normal civil standards.
This requires the preparation of a Bill of Costs which will be served with a Notice of Commencement to the Paying Party, in order to commence detailed assessment proceedings. Hourly rates can be claimed in line with any private retainer utilised for funding, but in the event of a legally aided funded matter, it is recommended that guideline rates are applied for the area from which the litigation was conducted by the Solicitor/legal representative, though enhanced rates can be claimed where appropriately complex circumstances arise, so long as this does not cause any breach of the indemnity principle for any other retainer in place with the Claimant.
Can any Costs be Claimed if a Judicial Review Action Fails?
Many judicial review cases are funded by way of legal aid. In the event permission is refused to proceed to judicial review, then a claim can be made from the Legal Aid Agency for the legal aid costs incurred following the provision of a funding certificate, up until the date of conclusion. Judicial Review matters always take place in the High Court, and as such elevated legal aid rates apply to reflect this, and enhancement can be claimed up to 100% (as opposed to the regular 50% in the County Court) in appropriately complex matters.
Caution is advised on making a claim from the legal aid fund if the proceedings have been withdrawn without any permission decision having been granted or rejected. In such circumstances, the Legal Aid Agency will not make payment prior to an application for discretionary payment. This involves the completion of a form which is submitted to the LAA, on consideration of which, a decision will be made as to whether costs can be claimed or not. Generally, in cases where the proceedings have led to a positive outcome, costs will be permitted to be recovered however, discretion is exercised to discourage the funding of meritless judicial review actions. Be aware that submission of any claim on CCMS for legal aid costs for which no discretion has yet been exercised, will lead to a rejection of your claim for costs, which may impact KPIs on your legal aid contract.
In the event permission on a case is refused, the Claimant needs to be aware that the Defendant may seek their costs of completing the Acknowledgment of Service and defending the proceedings.
How Can Greener Costs Assist?
At Greener Costs we are able to offer specialist input in relation to judicial review costs. Such matters are often funded by way of legal aid funding, in which case we can assist in the quantification and recovery of your costs from the LAA utilising CCMS, or in the event an inter-partes costs order has been made, recovery of your costs from the Paying Party.
We are a team of specialist Costs Draftsman and Costs Lawyers that have particular expertise in recovering costs in judicial review matters, and we can assist in the quantification of your costs and preparation of any Bill of Costs for assessment. In addition we can conduct detailed assessment proceedings on your behalf, all the way up to and including any final detailed assessment hearing. If you have a query regarding judicial review costs, please do not hesitate to get in touch by contacting email@example.com, or by calling us on 01204 263047.
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