In this e-bulletin we consider two recent decisions on procedural issues arising in judicial review, namely (i) the test for standing to bring a judicial review claim and (ii) the extent to which costs incurred prior to the grant of permission may be recoverable by a successful defendant.

  • In R (Hasan) v Secretary of State for Trade & Industry [2007] EWHC 2630 (Admin) the Court held that a Palestinian living in the occupied territory had standing to bring a claim against the Secretary of State concerning military export licences to Israel. The decision confirms the generally liberal approach adopted towards the standing test in judicial review cases. 
  • In a Court of Appeal case, Davey v Aylesbury Vale DC [2007] EWCA Civ 1166 the issue was the extent to which pre-permission costs in addition to the costs incurred in preparing the acknowledgment of service could be recovered by a successful defendant following the substantive hearing. The Court concluded that in principle such costs could be recovered and that if an undifferentiated order for costs was made in a defendant's favour then it should be assumed that these costs were included in the scope of that order..

Approach to standing in judicial review claims - Hasan

The claimant was a Palestinian living in a village near Bethlehem. In April 2005 Israeli forces appropriated his land on the basis that it belonged to the Israeli Land Department. Subsequently, in September 2006, the defendant Secretary of State, using his powers under the Export Control Act 2002, decided to announce the (retrospective) grant of 27 export licences for items of military equipment exported to Israel. The claimant sought permission to challenge that decision by judicial review. In addition to defending the claim on its merits, the Secretary of State argued that the claimant lacked the necessary standing to bring the claim, submitting that there was no link between the grant of the licences and what had happened to the claimant.

Standing

The test for establishing whether a potential claimant has standing to bring a judicial review claim is set out at section 31 (3) Supreme Court Act 1981, which provides that "…the court shall not grant leave [to make a judicial review application] unless it considers that the applicant has a sufficient interest in the matter to which the application relates."

At a "rolled-up" hearing of the permission application and the substantive claim, Mr Justice Collins first considered the standing point. He emphasised that a liberal approach to standing is generally adopted, noting that a direct interest is not necessary. He noted that if the potential claimant had no private interest, his motives may be material so that he could be refused standing if, for example, he was acting from some improper purpose or ill-will. Standing may also be refused if the potential claimant is a "busybody" with no legitimate interest in bringing the claim. This was not such a case. Collins J found that the claimant, as a Palestinian living in a part of the occupied territories affected by Israel's attempts to contain attacks on its citizens, was indirectly affected by any trade in military equipment to Israel and therefore had a sufficient interest to bring the claim.

Recovery of pre-permission costs - Davey

Aylesbury Vale District Council granted planning permission to a company in respect of a scheme of development. The appellant was granted permission to challenge that decision by way of judicial review. Forbes J dismissed the claim after a substantive hearing. At the conclusion of the hearing, he made a costs order which provided that the claimant should pay "75% of the costs of this claim not to include costs of the permission hearing…."

The costs could not be agreed between the parties and a taxation hearing was undertaken. At the taxation a point of principle arose concerning the recoverability of "pre-permission costs" and the extent to which these were covered by the order made. The question came before the Court of Appeal, which took the opportunity to carry out an authoritative review of the position.

Costs

If a claimant fails at the permission stage, it will generally be expected to pay the costs of the successful defendant filing an acknowledgement of service and summary grounds of opposition but not the costs of attending any oral hearing (in accordance with Practice Direction 54PD paragraphs 8.5-8.6 and R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346). Under Mount Cook principles, the costs of the hearing may be recovered only in exceptional circumstances, for example where there has been an abuse of process.

The claimant had argued that he should not be liable for any costs incurred by the defendant before the grant of permission, except for the costs incurred in preparing the acknowledgment of service and summary grounds of opposition to the claim. In other words, in relation to pre-permission costs he argued that the position was the same regardless of whether the claim failed at the permission stage or following the substantive hearing. The Court of Appeal disagreed, dismissing the appeal. The following general principles were set out in the judgments.

a) Costs in judicial review will ordinarily follow the event and therefore an unsuccessful claimant will have to show that some different approach should be adopted on the facts of the case.

b) In making any order against an unsuccessful claimant, the court must consider the nature of the claim and in particular whether it was brought in the public interest – if so, this may properly result in a restricted or no order for costs.

c) If awarding costs against the claimant, the trial judge should consider whether they are to include pre-permission costs – if so, it will be for the defendant to justify them (as it would any other costs on a taxation).

d) If an undifferentiated cost order is made, this should be deemed to include reasonably incurred pre-permission costs but exclude the costs of attending any permission hearing.

The judgment provides welcome clarification on this hitherto problematic area.