The Supreme Court Costs Office

No.4 of 2007

Davey v Aylesbury Vale District Council [2007] EWHC 116 (QB)

1 February 2007

Wyn Williams J

This appeal from the Master concerned the respondent’s “pre-permission costs” in Judicial Review proceedings. As a matter of principle, the Court was asked to decide whether an order for costs made in favour of a respondent was limited to the costs of preparing an acknowledgment of service and grounds of opposition or whether it also included other costs incurred by the respondent before the grant of permission to bring JR proceedings.

The Judge found nothing in the decisions in Leach [2001] EWHC Admin 455 and R (Mount Cook) v Westminster CC [2003] EWCA Civ 1346 which bore expressly or directly upon whether a successful defendant in proceedings in which permission had been granted could recover “pre-permission” costs under an order which provided (as here) for him to be paid “the costs of the claim, not to include the costs of the permission hearing”. Nor did he find that Section 51 Supreme Court Act 1981, CPR 44.3(2) and the Practice Statement (Judicial Review: Costs) [2004] 1 WLR 1760 cast any light upon how the court should exercise its discretion in relation to costs after a substantive hearing.

Having reviewed the relevant rules and authorities (including Young CO/1543/2001 and R (Thurman & Earle) v London Borough of Lewisham Co/2806/2003, the Judge had no doubt that Judges in the Administrative Court proceed on the basis that it is open to them to award “pre-permission costs” against an unsuccessful claimant after a substantive hearing. The Master’s decision was correct.