‘No order for costs’

R (Scott) v LB Hackney [2008] EWCA Civ 217 AND R (Mendes) v Southwark LBC [2009] All ER (D) 231 (Mar); NLJ 22 May p746

In an article, ‘Counting the Costs’, Alison Pickup considered this guidance of the Court of Appeal on costs in judicial review claims that are withdrawn on settlement and the impact on publicly funded litigants of no order being made as to costs. Although the court endorsed the general principle that where a judicial review claim is settled ‘a reasonable and proportionate attempt must be made to analyse the situation and determine whether an order for costs is appropriate … a judge must not be tempted too readily to adopt the fall-back position of “no order for costs”’. In Scott, the court nevertheless held that the judge had not erred in his assessment of the issue of costs in concluding that it was not appropriate to make any order for costs in the light of the history of the case. In Mendes, however, the Court of Appeal held that the judge had been wrong to make no order as to costs where clearly the claimant had strong prospects of success and the decision to bring proceedings had been a reasonable one in the face of the defendant’s refusal to withdraw its incorrect decision before proceedings were commenced.