The English Court of Appeal has handed down a landmark decision in relation to the costs outcome where defendants settle cases in the course of judicial review litigation. Previous English jurisprudence had dictated that the normal rule should be no order as to costs unless the claimant could show that it was "plain and obvious" they would have won.
However in Bahta & Ors v. Secretary of State for the Home Department, the Court has found that the defendant bears the burden of justifying a departure from the general rule that the unsuccessful party pays the losing party's costs.
Bahta was a group of immigration cases in which the Secretary of State had granted relief - e.g. leave to remain or the permission to work - in the course of proceedings. The State argued that they had done so for "purely pragmatic reasons"; not because the law required them to. Pill LJ warned that the expression "purely pragmatic reasons" should not be "used as a device for avoiding an order for costs that ought to be made".
The Court held "what is not acceptable is a state of mind in which the issues are not addressed by a defendant once an adequately formulated letter of claim is received by the defendant. In the absence of an adequate response, a claimant is entitled to proceed to institute proceedings. If the claimant then obtains the relief sought, or substantially similar relief, the claimant can expect to be awarded costs against the defendant".
This means that a rebuttable presumption will arise that where the defendant in judicial review concedes relief, they should pay the claimant's costs. It will be all the more difficult for them to rebut this presumption where the claimant has complied with the pre-action protocol provided for under English civil procedural rules.
The Public Law Project intervened as third party. Their submissions were cited and followed in the judgment. They were represented pro bono by Leigh Day & Co Solicitors and Counsel from Landmark Chambers.