The judicial committee of the Privy Council has made a rare foray into costs, ruling that a claimant who started judicial review (JR) proceedings because of a failure to comply with a pre-action protocol and then withdrew it when he achieved what he wanted, should be awarded costs.
In Singh v Public Service Commission (Trinidad and Tobago) [2019] UKPC 18, Mr Singh was refused a job on the basis that his particular degree was not recognised even though he had previously been advised by officials to take that degree. As part of a possible claim, Mr Singh requested documentation from the Public Service Commission under Trinidad and Tobago’s Freedom of Information Act 1999 (FOIA).
The PSC did not provide a substantive response within the statutory time limits for doing so and did not meaningfully comply with the pre-action protocol. Mr Singh issued JR proceedings, but a day later received a substantive response from the PSC. As a result, he withdrew the application.
The case concerned whether Mr Singh should be awarded his costs and the Privy Council overruled the Trinidad and Tobago Court of Appeal to hold that he should.
“The present case may be said to be an important one in which to review the operation of the pre-action protocol regime,” said Lord Briggs, giving the ruling of the committee. “This is because the FOIA is designed to give ordinary people prompt access to documents about their affairs held by public authorities, at affordable cost to themselves, in circumstances where a failure to respond even with a decision within the statutory time limit leaves the applicant only with a judicial review remedy, which will inevitably involve the incurring of substantial legal costs.
“In such a case, compliance by the public authority with its obligations under the applicable pre-action protocol will, in a situation where the authority is only in need of further time, readily enable the expense of judicial review proceedings to be avoided. Furthermore the imposition of a costs sanction upon a public authority which just delays, rather than seeking an extension of time with reasons, ought to be a useful warning against unexplained official delay.”
Lord Briggs said an order that the PSC pay his costs of that leave application “would go some of the way to putting him into the position in which he would have been if a reasoned request for an extension of time had been made”.