The Administrative Court has issued guidance on the determination of costs when judicial review claims settle claims settle.

The Court initially issued this guidance in November 2013. However following strong representations from a number of representative bodies suggesting that the November guidance was unlawful, the Lead Judge of the Administrative Court, Ouseley J, issued new guidance in December 2013. Thus it is important when searching for this guidance to ensure you have the December version and not the November version. The guidance can be found at - administrative-court/aco-costs-guidance-dec-13.pdf.

The guidance applies where parties have submitted consent orders after 13 January 2014 settling claims for JR but requesting the Court to determine the issue of costs.

The Court is keen for parties to try to resolve costs issues between themselves, without the assistance of the court. Thus parties must engage in a process of reasoned negotiation before requesting the court’s assistance.

The Court considers the principles relating to costs where JR claims settle to be those in M v Croydon [2012] 1 WLR 2607, CA, paras 59-63. The guidance includes those paragraphs of M v Croydon as an annexe.

Costs submissions should not normally exceed two pages of A4. They should be filed within 14 days of the consent order settling the claim, with the other side’s response within 14 days of service of the costs submissions, and any reply within 7 days of service of that response.

Costs submissions should contain the following:

  • confirm that the parties have used reasonable endeavours to negotiate a costs settlement;
  • identify what issues or reasons prevented theparties agreeing costs liability;
  • state the approximate amount of costs likely to be involved in the case;
  • clearly identify the extent to which the parties complied with the pre-action protocol;
  • state the relief the claimant (i) sought in the claim form and (ii) obtained; and
  • address specifically how the claim and the basis of its settlement fit the principles in M v Croydon, including the significance and effect of any action or offer by the defendant in relation to the claim.

Submissions should be accompanied by the pre- action protocol correspondence, the correspondence in which the costs claim is made and defended, and any other correspondence necessary to explain why the claim was brought or why the step which led to settlement was not taken until after the claim was issued.