The fact that a party is publicly funded is a “relevant factor” in determining whether to make a costs order in judicial review proceedings, and what order to make, the Court of Appeal has ruled.
Lord Justice Singh was giving judgment in an immigration case, ZN (Afghanistan) and Anor v Secretary of State for the Home Department [2018] EWCA Civ 1059, although the court’s refusal of the applicants’ application for costs was unaffected by the fact that they were legally aided.
But he said the issue was nonetheless a “potentially important issue of wider general application”.
Having considered case law in detail, Singh LJ said section 30(1) of LASPO – which says the fact a person is publicly funded is not permitted to affect “the principles on which the discretion of the court or tribunal is normally exercised” – was not an absolute rule that public funding was necessarily irrelevant.
He said that while “political decisions, and in particular matters of public finances, are not for the courts to pronounce upon”, effective access to justice was “of profound concern to the courts, especially in the field of public law”.
Singh LJ said he did not want to lay down any prescriptive rules as to how public funding may be relevant to the court’s decision to award costs, but “I hope it will be helpful if I give an example”.
He said: “Suppose a claim for judicial review is brought to challenge the Secretary of State’s decision to remove an adult from the UK. The grounds of challenge include a complaint that there will be a breach of the right to respect for family life in article 8 and also a complaint that the Secretary of State failed to have regard to the best interests of the claimant’s children under section 55 of the UK Borders Act 2007.
“Before the case gets to court, the Secretary of State concedes that she did not have regard to section 55 and agrees to a consent order by which her decision will be quashed so that she can reconsider her decision. Not all of the grounds have succeeded, but the claimant may feel that he has obtained a victory in substance and he has obtained the outcome which is often the most a person can realistically hope to obtain in judicial review proceedings.
“When the court comes to consider the issue of costs, I stress again that everything depends on the particular facts but the court may feel that in such a case the claimant should be awarded his costs and not engage in too technical an exercise about precisely which ground succeeded.
“In my view, it is open in such a case to the court to take into account the legal aid considerations mentioned in cases such as JFS and Sino. That is not impermissible in the exercise of the court’s discretion. Were it otherwise, I think the courts would be turning a blind eye to the realities of the way in which legal aid practices now have to operate and that could have a detrimental impact on the public interest in effective access to justice.”
This approach was endorsed by Lord Justice Leveson, president of the Queen’s Bench Division. He said: “Entirely within the principles of law which he articulates, Singh LJ does no more than recognise the imperative that legal aid is of vital assistance to those who, for want of resources, would not otherwise be able to seek redress for breach of their legal rights; solicitors and counsel who are prepared to act with the benefit of legal aid (at the rates available) perform an important public service so that if, in reality, the claim succeeds for reasons which can be encompassed within the grounds, there should be no reason for depriving them of the more attractive rates available on assessment of costs.”
Lord Justice Leggatt agreed that the constraints on public funding and public interest in effective access to justice were relevant, but differed from Singh LJ in how they should be taken into account.
“For my part, I do not consider that, in deciding what order to make about costs at the end of proceedings, the fact that a party is publicly funded can in principle be relevant,” he said.
Rather, the public interest in facilitating access to justice could be. “First, it is a reason to analyse the circumstances of the particular case to try to work out whether the claimant has been successful rather than too readily adopting the fallback position of making no order for costs…
“Second, it is a reason not to set the bar too high in judging what constitutes success and to treat it as sufficient to characterise the claimant as the successful party for the purposes of CPR 44.2(2) that as a result of the litigation the claimant has achieved any material part of the relief sought. Third, it is a reason not to be too astute to pare down awards of costs or to deprive a claimant who has achieved such a measure of success of costs just because the claimant has not been wholly successful, provided that the claim has been conducted reasonably.”
Lord Justice Leveson noted that, though he supported Singh LJ, “it does not appear to me to be clear that there would be any real difference in outcome between the approach articulated by Singh LJ and that preferred by Leggatt LJ”.
Stephen Knafler QC and Mr Raza Halim (instructed by Duncan Lewis) for the first appellant, Stephen Knafler QC and Greg Ó Ceallaigh (instructed by Duncan Lewis) for the second appellant, and Samantha Broadfoot QC (instructed by the Government Legal Department) for the respondent.