Permission Decision Awaited in Supreme Court Appeal on Judicial Review Costs

39 Essex Chambers’ barristers Katherine Apps KC and Jake Thorold have been instructed by the Public and Commercial Services Union (“PCS”) in an important Supreme Court appeal regarding the correct approach to costs in judicial review proceedings.  

Background

In 2023, the then Home Secretary made the Strikes (Minimum Service Levels: Border Security) Regulations 2023 (“the MSL Regulations”). These regulations enabled the Home Secretary to issue “work notices” to PCS and other trade unions, requiring them to take “reasonable steps” to ensure that specified staff in border services did not participate in planned strike action so as to guarantee the service would be “no less effective” on strike days than on non-strike days. The regulations provided that the entire strike would lose statutory protection should the union fail to comply with these obligations.

PCS judicially reviewed the MSL Regulations on the basis that they constituted a disproportionate interference with their members’ Article 11 ECHR rights. Permission to apply for judicial review was granted by the High Court in May 2024.

On 4 July 2024 the United Kingdom held a general election, resulting in a new Labour Government. The Labour Party had opposed the MSL Regulations while in opposition.

The Minister for Migration and Citizenship subsequently sent a letter to PCS stating that the Government believed that work notices “unduly restrict… the right to strike”, and committing that it would repeal the MSL Regulations and refrain from exercising the power to issue work notices in the meantime.

On that basis, the parties agreed that PCS’ judicial review claim had become academic. They did not agree, however, on the costs position. Submissions were made to the Court. PCS contended that they should be awarded their costs because they had substantially achieved the relief sought in the claim, while the SSHD argued that there should be no order as to costs because the Government had agreed to repeal and not exercise the MSL Regulations for reasons other than PCS’ claim – namely, a change in policy following a change in Government.

At first instance, His Honour Judge Jarman made no order as to costs, on the basis that “the claim became academic for political reasons after a change of government and not because of this claim”.

PCS appealed to the Court of Appeal. Despite describing the case as “quite close to the borderline”, the Court of Appeal ultimately concluded that HHJ Jarman had not made an error of principle or law which would justify overturning his decision to make no order as to costs.

Appeal to the Supreme Court

PCS has now appealed to the Supreme Court on three grounds, which are (in summary):

1. The Court of Appeal erred in creating a new costs test for Claimants in judicial review cases where a Defendant provides the relief soughs but contends that it has done so for “political reasons”, namely that a Claimant must demonstrate that it is “tolerably clear” that they would have been likely to succeed at a trial;
2. The Court of Appeal erred in putting the evidential burden on PCS to demonstrate why the SSHD made the decision which led to the claim becoming academic; and
3. The Court of Appeal erred in concluding that HHJ Jarman’s one sentence reasoning was sufficient to discharge the duty to give reasons.

A permission decision from the Supreme Court is awaited.

Significance

If permission is granted, this appeal will be of considerable significance. In particular, the Supreme Court will be required to consider the correct approach to costs in circumstances where a judicial review is said to have become academic for “political reasons” – including consideration of the Court of Appeal’s much-followed judgment in M v Croydon LBC [2012] 1 WLR 2607.

More broadly, the case raises interesting and important questions regarding the continuity of government, and in particular the extent to which new administrations can escape costs liability for the decisions of previous administrations through invocation of “political reasons” as a justification for changing course.

The Court of Appeal judgment can be found here.

The Supreme Court page for this appeal can be found here.