By SJM
07/07/2013

JR and Costs

A quick note on a recent judgement of the Court of Appeal on an application for costs following a settled judicial review: Emezie v SSHD

The Appeal was brought by Ms Emezie against Mostyn J’s dismissal of her application in the High Court, which followed the disposal of her judicial review claim by way of the provision of ground floor accommodation. The Appellant was pregnant and her solicitors had made repeated requests of the Respondent (the Border Agency) in their pre-action correspondence for self-contained accommodation. It was only after proceedings were issued that such accommodation was provided, with a consent order filed on 5/9/12 with provision for the costs to be determined on written submissions.

No reference was made in the parties’ submissions to the judgement of the Court of Appeal in M v Croydon. This was a significant omission given that the facts of this case appeared to fall within case i of that judgement (paras 60-61) and would have given the Appellant a clear entitlement to her costs. Instead, the judge, relying on the criteria in Boxall v Waltham Forest LBC, found that the Appellant would not obviously have won and made no order.

Stanley Burnton LJ held that the judge had misdirected himself as to the appropriate test and that had M v Croydon been applied, the result ought to have been that the Appellant was entitled to her costs. The Appeal was therefore allowed.

Comment: this case is a useful and timely reminder of when costs awards are likely to be appropriate in JR claims, particularly in light of the ‘Transforming Legal Aid’ proposals. The Court in Emezie was clear that in ‘case i’ cases, i.e. where there is a match-up between the relief sought in the JR and the eventual outcome, the Boxall criteria no longer apply and it is not appropriate for the Court to undertake an appraisal of the underlying merits of the case. Where Boxall is likely still to be relevant is in the ‘case ii and iii’ cases, where the Claimant has only succeeded in part or has received some other concession which does not reflect their claim.

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.

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