The Law Is The Law - And It Pays To Remember That

The Court of Appeal in the case of Bahta, a case 'of general application'1, criticised the approach of Administrative Court Judges to relief and costs and forcefully restated the principle that their judgments represent the law until and unless they are overturned. Their Lordships gave revised guidance to the correct interpretation of the Boxall2 principles while emphasising the need to abide by the pre-action protocol in judicial review cases. The case also represents a landmark recognition of the duties of the courts to legally aided practitioners.

Background

The lead case on costs where a claim for judicial review settles before a full hearing is Boxall, well known to judicial review practitioners. The key principles in Boxall are: (i) the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.(ii) it will ordinarily be irrelevant that the Claimant is legally aided;(iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;(iv) at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.(v) in the absence of a good reason to make any other order the fall back is to make no order as to costs.(vi) the court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.

These principles had come to be interpreted by a number of judges in the Administrative Court as virtually amounting to a licence for Defendants to await a decision on permission and then, if permission is granted, concede the relief requested but claim that they were doing so for 'pragmatic reasons' and resist costs. Duncan Lewis represented the five Appellants who in joined cases appealed against orders refusing them their costs on similar bases.

Jackson LJ in his Review of Civil Litigation Costs: Final Report recognised that there was widespread concern and recommended an amendment to the Boxall principles. In the light of the importance of the issue to the profession generally and legally aided practitioners in particular the Public Law Project and the General Council of the Bar were granted permission to intervene.

The history of the claims for judicial review

The circumstances of these appeals as to costs illustrate the extent of the latitude Defendants were being given in judicial review proceedings. In each of the claims for judicial review the Claimant had sought permission to work ('PTW'). In four of the cases the Claimant relied upon the decision of the Court of Appeal in ZO3. In brief4 that case concerned the right of asylum seekers to access the employment market if their claim for asylum had been outstanding for more than one year before a decision was made on the...