“Wholly Successful Means Full Costs”: Where Settlement Delivers the Practical Remedy, Costs Follow—Even if Relief Is Granted “Outside the Rules” and Without Conceding Unlawfulness
1. Introduction
In ABB, R (On the Application Of) v Secretary of State for the Home Department [2026] EWCA Civ 61,
the Court of Appeal considered a recurring and highly practical question in judicial review: when proceedings settle
after the defendant grants the claimant the substantive outcome sought, how should costs be allocated?
The appellant (“ABB”), an Afghan national formerly resident in Ukraine, had applied for entry clearance under the
UK’s post-invasion Ukraine schemes—principally the Homes for Ukraine Sponsorship Scheme (“HUSS”) and also the
Ukraine Family Scheme (“UFS”). His applications were refused, largely on the basis that the Secretary of State
(“SSHD”) was not satisfied his relationship with his missing Ukrainian wife was subsisting. ABB pursued judicial review.
Ultimately, before the substantive hearing, the SSHD granted him entry clearance for 36 months, but framed it as
Leave Outside the Rules.
The only live dispute then became costs. The Upper Tribunal awarded ABB 75% of his reasonable costs. ABB appealed,
contending he should receive 100%. The Court of Appeal allowed the appeal and ordered the SSHD to pay all of ABB’s
costs.
The judgment is important because it clarifies (and robustly enforces) the principle that, in settled public law claims,
the court should focus on whether the claimant has achieved what they sought, not on technicalities about the legal
label of the relief, nor on a retrospective merits assessment of unadjudicated grounds—particularly where the defendant
failed to engage properly at the Pre-Action Protocol stage.
2. Summary of the Judgment
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The Court of Appeal held the case fell squarely within category (i) of the framework in
R (M) v Croydon LBC [2012] EWCA Civ 595: ABB was wholly successful because he “got what he wanted”
(36 months’ entry clearance), even though it was granted “outside the immigration rules” and without a formal
concession that the earlier refusal was unlawful.
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Applying R (Bahta & Others) v SSHD and Others [2011] EWCA Civ 895, the Court reaffirmed that once relief is
granted, the defendant bears the burden of justifying any departure from the general rule that the successful
claimant receives costs—and that burden is “heavy” where the claimant complied with the pre-action protocol and
the defendant did not.
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The Upper Tribunal’s reduction to 75% was wrong. The purported “merit” in the SSHD’s argument that post-decision
evidence mattered did not justify a reduction, because the SSHD failed to explain why clarification questions could
not have been asked during the PAP process, which is designed to avoid litigation and costs.
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The Court rejected attempts to reduce costs by arguing ABB did not succeed on every pleaded ground
(e.g. Articles 8 and 14 ECHR), and refused any “post-mortem” evaluation of the merits of issues never adjudicated.
The Court relied on R (Emezie) v SSHD [2013] EWCA Civ 733, which superseded the earlier “bound to succeed at trial”
approach associated with R (Boxall) v Waltham Forest LBC (2001) 4 CCLR 258.
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Lord Justice Nugee added that awarding full costs where merited has real-world importance for access to justice,
especially where claimants are legally aided and inter partes costs can be several times legal aid rates (without
distorting the legal principles: cf. LASPOA 2012, s.30(1)).
3. Analysis
3.1 Precedents Cited
R (Bahta & Others) v SSHD and Others [2011] EWCA Civ 895 (“Bahta”)
The Court treated Bahta as foundational on two points:
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Starting point: the successful claimant is entitled to costs.
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PAP compliance matters: where the claimant complied and the defendant did not, the defendant’s burden to justify
depriving the claimant of full costs is “likely to be a heavy one”.
Here, ABB sent a detailed PAP letter; the SSHD failed to provide a proper PAP response in time, sought extensions without
reasons, and only later asked questions that were said to be crucial. This conduct made it difficult for the SSHD to
justify any discount from full costs.
M v Croydon supplies the now-standard categorisation for costs after settlement in public law:
- Wholly successful claimant (often full costs absent good reason);
- Part success (allocation may reflect partial vindication);
- Compromise not reflecting claims (often no order, absent clarity as to who “won”).
The Court of Appeal held ABB’s case was plainly category (i). The key move is the Court’s insistence that the category
turns on substance, not form: ABB’s objective was entry to the UK for 36 months; that is what he obtained.
The SSHD’s attempt to recharacterise the outcome as merely discretionary “outside the rules” relief did not stop ABB from
being “wholly successful”.
R (Tesfay & Ors) v Secretary of State for the Home Department [2016] EWCA Civ 415 (“Tesfay”)
Tesfay emphasises that “success” in judicial review is assessed by reference to what is realistically achievable in public law.
Often, an order for reconsideration is itself “success” for costs, even if the applicant may later lose on the re-made decision.
In ABB’s case, the Court used Tesfay to reinforce the point that ABB achieved more than reconsideration: he got the ultimate
positive outcome (a visa). That strengthened, rather than weakened, the case for full costs.
The SSHD’s submissions invited a backward-looking analysis of which grounds would have succeeded and how much work related to each.
The Court rejected this, citing Emezie, which states the modern starting point is:
whether the claimant achieved what they sought, not whether they were “bound to succeed at trial” (an approach associated with Boxall).
This is a critical doctrinal guardrail: costs assessment after settlement should not turn into a quasi-trial about unadjudicated issues.
R (LR) v SSHD [2024] UKUT 00236 (IAC)
The SSHD relied on R (LR) v SSHD to argue ABB’s Articles 8 and 14 points would likely fail (and therefore should not attract costs).
The Court held LR was “unconnected” and had no bearing on ABB’s costs: it would be an “unprincipled waste of resources”
to conduct a retrospective merits inquiry after settlement.
These authorities were used (in Nugee LJ’s short concurring judgment) to highlight the structural funding reality:
inter partes costs can be materially higher than legal aid rates, affecting the viability of legally aided practices and
thus access to justice. The Court was careful to stress this does not alter the legal test (to avoid conflict with
Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.30(1)), but it does underscore the importance of
not too readily departing from full costs where the principles warrant them.
3.2 Legal Reasoning
(a) The operative “success” is outcome-based
The Court identified ABB’s practical target: entry clearance for 36 months. Since the settlement delivered precisely that,
ABB was “wholly successful” within M v Croydon. Two common defendant arguments were treated as legally irrelevant:
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No concession of unlawfulness: the Court held that not conceding unlawfulness does not prevent a claimant being wholly
successful where they obtain the relief sought.
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Relief framed “outside the rules”: the label attached to the grant did not change the substance of what ABB achieved.
(b) PAP non-compliance made “post-decision evidence” a weak justification
The Upper Tribunal had reduced costs partly because “post-decision information was relevant” to the ultimate grant.
The Court of Appeal accepted that post-decision information may have played a role, but held that did not justify a discount
because:
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The PAP (quoted in the judgment) anticipates defendants may need more time or more information, but requires interim replies,
reasons for extensions, and requests for additional information.
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The SSHD failed to follow those steps and gave no good reason why questions later asked could not have been asked before proceedings.
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The PAP’s aims include settling without proceedings and avoiding unnecessary expense; the SSHD’s approach undermined those aims.
Thus, even if later evidence mattered factually, it was not a “good reason” in costs terms because proper PAP engagement might have
avoided the litigation altogether.
(c) Ambiguity in the Rules strengthened ABB’s position and weakened the SSHD’s
A second factor behind the grant was a known ambiguity in UKR 17(1)(b) (later amended in August 2022).
The Court noted the ambiguity was well-known to the SSHD long before these proceedings; it was the reason the Rules were amended.
This made it harder to argue that the claim’s resolution depended on truly new information justifying a costs discount.
(d) No “ground-by-ground set-off” after settlement
The SSHD argued ABB had not obtained every remedy sought (including declarations) and did not succeed on all grounds (notably Articles 8 and 14).
The Court treated these as subsidiary supports for the main case. It held that a defendant who chooses to concede (or settle) does not
ordinarily gain a right to discount costs by asserting that some untested grounds were weak, or that other authorities later rejected similar arguments.
3.3 Impact
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Reinforced incentive for early, meaningful PAP engagement: defendants who fail to use the PAP process to clarify issues and request further
information face a greater likelihood of paying full costs if they later grant relief.
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Substance over form in settlement outcomes: granting the practical remedy “outside the rules” (or without conceding unlawfulness) will not,
without more, prevent a claimant being treated as wholly successful for costs.
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Limits “satellite litigation” on costs: the judgment discourages extensive, resource-heavy disputes about how much work related to which ground,
or speculative assessments of what would have happened at trial.
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Access to justice dimension: while not altering the test, the concurring observations may encourage judges to be cautious before discounting
costs where full costs are merited, given the systemic significance for legally aided representation.
4. Complex Concepts Simplified
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Pre-Action Protocol (“PAP”): a required pre-lawsuit exchange intended to identify issues, share information, and settle if possible.
Non-compliance can have costs consequences.
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“Wholly successful” in judicial review: not limited to winning a court judgment; includes settling on terms that deliver the claimant’s practical objective.
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Leave Outside the Rules: immigration permission granted by discretion rather than under a specific Immigration Rules route. This case confirms that,
for costs, what matters is the claimant’s achieved outcome, not the legal label.
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Inter partes costs vs legal aid rates: “inter partes” costs are what the losing party pays under a costs order; they are often higher than the fixed or
controlled rates paid by legal aid. This difference affects the financial viability of legal aid practices.
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Articles 8 and 14 ECHR: Article 8 protects private and family life; Article 14 prohibits discrimination in the enjoyment of Convention rights.
Here, those grounds were treated as subsidiary once the core relief (entry clearance) was obtained.
5. Conclusion
ABB v SSHD [2026] EWCA Civ 61 establishes a clear, outcome-focused costs rule for settled judicial review claims:
where the claimant obtains the substantive relief sought, the case is ordinarily category (i) under M v Croydon, and
the claimant should receive full costs unless the defendant shows a good reason to depart. Where the defendant has failed
to comply with the PAP, the burden of justifying any discount is heavy (per Bahta), and arguments based on “post-decision
evidence” will carry little weight if that information could and should have been sought pre-action.
The Court also firmly rejects retrospective, ground-by-ground merits accounting after compromise (per Emezie), promoting both
procedural fairness and efficiency. Finally, the concurring observations underline that proper costs outcomes matter systemically:
they support the practical ability of legally aided lawyers to bring meritorious public law challenges—without changing the legal test.