Upper Tribunal gives guidance on costs where judicial review concludes before a hearing

Mr Justice Swift has given some guidance on costs in judicial review applications that are compromised before the full hearing, stating that context is important and that all relevant matters should be considered, even where it appears that the applicant has obtained the relief sought. The case is R (IX) v Secretary of State for the Home Department (Judicial Review; costs) [2025] UKUT 154 (IAC).

The applicant was initially part of the cohort of people being threatened with the Rwanda policy, but following the change in government he was sent a letter dated 22 July 2024 which advised the applicant that inadmissibility action was not being pursued in his case and his substantive interview would take place shortly, but if circumstances changed such that inadmissibility would be appropriate then he would be notified.

The applicant sought judicial review of this, arguing that once a decision had been taken not to treat an asylum claim as inadmissible it could not later be considered inadmissible. It was also argued that it was “irrational, unreasonable and unfair” to leave the applicant in the position of uncertainty when he had already been waiting for two years and he suffers from post-traumatic stress disorder which can be triggered by stress.

The day before the judicial review hearing, the Home Secretary published a statement confirming that this cohort of cases would be considered in the UK and inadmissibility action had been discontinued. The applicant applied to withdraw the claim and both parties sought their costs, but these were awarded against the applicant.

The headnote states as follows:

1. The general rule (at CPR 44.2(3)) is that the unsuccessful party will be ordered to pay the costs of the successful party. Costs are said to “follow the event”, with the event being the outcome of the trial. Where proceedings have been issued but have come to an end before trial, the general rule still applies.

2. When considering the application of the approaches referred to in the case-law it is important to have in mind that the need to decide such costs applications can arise in a range of different circumstances. The approaches set out in the case-law must be applied in ways that reflect the circumstances before the court rather than merely slavishly.

3. In setting out his 3 categories in R (M) v Croydon LBC [2012] 1 WLR 2607, Lord Neuberger intended to do no more than, by reference to 3 broadly-defined classes, provide guidance on how the general rule might apply where a costs application is made in circumstances where a trial is no longer required. He did not intend anything approaching prescription or codification.

4. There will be some cases where it is apparent from context that the action the defendant has agreed to take which is relied on as removing the need for the litigation to continue, will support or even require the conclusion that the applicant has been wholly successful. But context can be important.

5. There is nothing in M or in any other of the authorities that requires a tribunal to take a special approach when deciding where costs should fall in situations where a claim has been compromised and, for that purpose, decline to consider relevant matters. The tribunal’s costs jurisdiction is the same regardless of whether it falls to be exercised after a contested trial or following a compromise. The overriding objective is to do justice between the parties, in accordance with the application of any relevant court rules, without incurring unnecessary court time and consequently additional cost. That does not require a tribunal to disregard information that is relevant and is available when the decision falls to be made.