The Administrative Court has issued guidance on how it will approach the question of costs following settlement of claims for judicial review without a substantive hearing. The guidance will apply to
The Administrative Court has issued guidance on how it will approach the question of costs following settlement of claims for judicial review without a substantive hearing. The guidance will apply to cases where parties agree to settle a claim but are unable to agree costs and submit that the Court should determine the costs issue. The guidance applies to all consent orders submitted for approval by the court after 20 November 2013.
In the guidance note, the court is critical of the number of costs applications it has to deal with that are 'poorly considered and prepared by the parties, consuming judicial time far beyond what is proportionate for deciding a costs issue when the parties have settled the case. The judicial and other Court resources applied to these cases must be proportionate to what is at stake'. The guidance suggests that the onus lies on the parties to reach agreement on costs wherever possible and in advance of asking the Court to resolve the issues. As such, it is important for parties to do all they can to reach agreement on costs to avoid judicial censure and other negative consequences.
The guidance note reiterates that the apportionment of costs will depend on the facts of the case but that the principles are as set out at paragraphs 59-63 of M v Croydon [2012] EWCA Civ 595:
The parties should not make submissions to the court unless:
The guidance note sets out procedural requirements that must be followed, absent special circumstances. A party failing to follow these procedural requirements cannot be expected to have an order for costs made in their favour. A party wishing to claim costs must file submissions within 7 days of the consent order. Submissions in response must be filed within a further 7 days. No further submissions will be considered unless the court specifically requests them. Submissions must confirm a list of matters specified in the guidance note and must be no longer than two sides of A4. Submissions should be accompanied by relevant pre-action correspondence.
We can expect to see the court enforce the new guidance rigorously. Considering the recent judgment of the Court of Appeal in Andrew Mitchell's libel claim against News Group Newspapers (whereby the court upheld an earlier ruling that, even if successful, Mr. Mitchell would not recover his costs due to a failure to comply with a procedural rule), there is now the distinct sense that the courts will not be slow to observe procedural rules with rigour in order to ensure that matters are dealt with as expeditiously and proportionately as possible. As such, woe betide parties and practitioners who do not observe them to the letter.
In the guidance note, the court is critical of the number of costs applications it has to deal with that are 'poorly considered and prepared by the parties, consuming judicial time far beyond what is proportionate for deciding a costs issue when the parties have settled the case. The judicial and other Court resources applied to these cases must be proportionate to what is at stake'. The guidance suggests that the onus lies on the parties to reach agreement on costs wherever possible and in advance of asking the Court to resolve the issues. As such, it is important for parties to do all they can to reach agreement on costs to avoid judicial censure and other negative consequences.
The guidance note reiterates that the apportionment of costs will depend on the facts of the case but that the principles are as set out at paragraphs 59-63 of M v Croydon [2012] EWCA Civ 595:
- Where the claimant is successful on all grounds: the claimant should recover all costs unless there is a good reason to the contrary;
- Where the claimant obtains only some of the relief sought: the court will look at how reasonably the claimant pursued the action, how important the matters agreed in the claimant's favour were compared with the totality of the action and how much costs were increased by the claimant pursuing the unsuccessful elements of the action. There is much to be said for concluding the case with no order for costs but the court may be assisted in considering who would be considered to have 'won' if the case had gone to trial; and
- Where there is some compromise that does not reflect the claimant's claim: there is a powerful argument that there should be no order as to costs but it may be appropriate to look at the underlying claim and inquire whether it was 'tolerably clear' who would have won had the matter proceeded to trial.
The parties should not make submissions to the court unless:
- They have exhausted all reasonable avenues of negotiation and compromise, having properly applied the principles in M v Croydon;
- They have a clear understanding of the basis on which they have failed to reach agreement and are in a position to provide a lucid and concise explanation of this in their submissions to the court; and
- The party claiming costs is clear that the Court will be able to decide that an order for costs should be made for that party applying the principles of M v Croydon.
The guidance note sets out procedural requirements that must be followed, absent special circumstances. A party failing to follow these procedural requirements cannot be expected to have an order for costs made in their favour. A party wishing to claim costs must file submissions within 7 days of the consent order. Submissions in response must be filed within a further 7 days. No further submissions will be considered unless the court specifically requests them. Submissions must confirm a list of matters specified in the guidance note and must be no longer than two sides of A4. Submissions should be accompanied by relevant pre-action correspondence.
We can expect to see the court enforce the new guidance rigorously. Considering the recent judgment of the Court of Appeal in Andrew Mitchell's libel claim against News Group Newspapers (whereby the court upheld an earlier ruling that, even if successful, Mr. Mitchell would not recover his costs due to a failure to comply with a procedural rule), there is now the distinct sense that the courts will not be slow to observe procedural rules with rigour in order to ensure that matters are dealt with as expeditiously and proportionately as possible. As such, woe betide parties and practitioners who do not observe them to the letter.