Costs against the Parole Board for administrative parole delay: Davies/Gourlay neutrality protection does not apply to HRA damages claims

Case: Fitzgerald, R (On the Application Of) v Parole Board for England and Wales [2026] EWCA Civ 1199
Court: Court of Appeal (Civil Division) (Sir Colin Birss (Ch), Peter Jackson LJ, Elisabeth Laing LJ)
Date: 17 September 2026

1. Introduction

The appellant was a life-sentenced prisoner approaching and then passing the expiry of his minimum term (“tariff”). He brought judicial review against the Parole Board for England and Wales, alleging unlawful delay in convening the oral hearing that would decide (for Article 5(4) ECHR purposes) whether it was safe to direct his release once tariff had expired. The Secretary of State for Justice had initially been joined below but was not a party to the costs appeal.

The Administrative Court (Fordham J) found a breach of Article 5(4) ECHR due to delay and awarded £10,000 HRA damages. However, it made no order as to costs, treating the Parole Board as retaining “neutrality”, and noting a “missed opportunity” to secure an earlier substantive hearing.

The appeal therefore concerned a narrow but practically important question: can the Parole Board rely on the “neutral tribunal” costs protection derived from Davies and Gourlay where the claimant has succeeded in a damages claim founded on administrative delay? The legal aid context mattered factually because, absent a costs order, damages were likely to be consumed by the legal aid statutory charge, but the Court of Appeal deliberately resolved the appeal on domestic costs principles rather than on Convention-based “just satisfaction” arguments.

2. Summary of the Judgment

The Court of Appeal allowed the appeal against the costs order. It held that the Davies/Gourlay “neutral tribunal” practice did not apply on the facts found by the judge: this was not merely a challenge to a judicial decision with a neutral defendant tribunal, but a successful claim that the Parole Board’s administrative failings caused unlawful detention for ten months.

The court substituted an order that the Parole Board pay the appellant’s costs of the judicial review, subject to a 20% reduction to reflect the “missed opportunity” to secure an earlier hearing in 2023.

3. Analysis

3.1 Precedents cited and how they were used

• Davies v Birmingham Deputy Coroner [2004] EWCA Civ 207; [2004] 1 WLR 2739
  Davies is the leading Court of Appeal authority describing the costs “practice” in judicial review of inferior courts/tribunals/coroners:
  • If the judicial body takes no part (or is strictly neutral), generally no order for costs is made against it unless there is flagrant impropriety or unreasonable refusal to sign a consent order.
  • If it becomes an “active party”, the normal rule (costs follow the event) may apply.
  In this appeal, Davies mattered not as a rule to be applied mechanically, but as a practice whose rationale is tied to supervision of judicial decision-makers who should not “defend” decisions beyond their reasons.
• R (Gourlay) v Parole Board [2017] EWCA Civ 1003; [2017] 1 WLR 4107 (and the Supreme Court decision discussed in the judgment)
  Gourlay extended/confirmed that the Parole Board may be treated as a tribunal to which the Davies practice applies in appropriate judicial review contexts (there, a challenge to a decision refusing transfer to open conditions, where the Board took no active part). The Supreme Court emphasised:
  • costs “practice” is for the Court of Appeal to develop and keep under review;
  • CPR 44.2 is not inconsistent with treating a neutral judicial body as not being an “unsuccessful party” in the ordinary sense; and
  • legal aid status does not normally affect costs principles.
  The Court of Appeal in the present case distinguished Gourlay on the facts and on the type of wrongdoing alleged: administrative delay leading to HRA damages, not merely an impugned adjudicative decision.
• R (Touche) v Inner London North Coroner [2001] EWCA Civ 383; [2001] QB 1206 and R v Coroner for Lincoln ex p Hay [2000] Lloyd's Rep Med 264 (DC)
  These cases appear in the judgment as part of the genealogy of the “neutral/active” distinction. They illustrate why courts have been concerned to avoid routinely penalising judicial office-holders in costs, while recognising that participation can change the analysis. The present appeal did not turn on fine distinctions about “neutral participation” because the Court of Appeal held that the Davies-type practice was not engaged by the administrative-delay damages claim as found by the judge.
• R (Adams) v Parole Board [2022] EWHC 3406 (Admin)
  Cited for the proposition that listing is a judicial function and the Parole Board may express “neutrality” in correspondence/chronology. The Court of Appeal accepted that such neutrality may be appropriate in some contexts, but held that it did not determine the costs outcome where the claim succeeds as a damages claim for administrative delay.
• R (Bate) v Parole Board [2018] EWHC 2820 (Admin) and R (Sturnham) v Secretary of State for Justice [2013] UKSC 23; [2013] 2 AC 254
  These were part of the underlying merits framework (Article 5(4) “speedy” hearing; damages for parole delay; resource constraints not a defence). They contextualised the Administrative Court’s findings, but the Court of Appeal’s costs decision focused on CPR/costs practice rather than re-litigating Article 5/6 principles.
• Gudanaviciene v First-tier Tribunal (Immigration and Asylum Chamber) [2017] EWCA Civ 352; [2017] 1 WLR 4095, Young v Bristol Aeroplane Co Limited [1944] KB 718, and R (M) v Croydon London Borough Council [2012] EWCA Civ 595; [2012] 1 WLR 1267
  These appear in the Supreme Court discussion in Gourlay (as recounted) about how “practice” decisions relate to precedent, and about the irrelevance (save in unusual cases) of the means by which lawyers are funded.

3.2 Legal reasoning

(a) The central factual/legal hinge: what kind of wrong was found?

The Court of Appeal treated the judge’s findings as determinative. The judge found that, after the dossier was complete on 3 August 2022, there was “simply no case management” and the case became “parked in a queue”; the shortage of panel chairs was an “administrative delay”. While there was also an unlawful Duty Member refusal to prioritise in October 2022 (a judicial decision), the damages award and causation findings were tied to the administrative delay causing ten months of additional detention.

That mattered because the Davies/Gourlay practice exists to protect adjudicative bodies from having to “defend” their decisions and from routine exposure to costs when they are simply the supervised decision-maker. Where, however, the tribunal is found to have wrongfully administered its own process so as to cause compensable unlawful detention, the Court of Appeal held the practice “does not on its own terms apply, and cannot reasonably be stretched so as to apply”.

(b) Why neutrality did not control the outcome

The Administrative Court had accepted that the Parole Board “retained neutrality”. The Court of Appeal held that even if the Parole Board was neutral in a forensic sense, that did not answer the real question: whether this was the kind of case to which the neutral-tribunal costs practice applies at all. In a successful HRA damages claim for administrative delay, the claimant is the “successful party” and the Parole Board is the “losing party” in the ordinary costs sense.

(c) The “missed opportunity” as a costs factor (but not a complete answer)

The Court of Appeal agreed that the “missed opportunity” to obtain an earlier substantive hearing in 2023 was relevant to costs, but it could not justify a blanket “no order” outcome. There were “imponderables” (what earlier court listing would have occurred, what earlier Parole Board hearing would have followed, and whether release would have happened earlier), and the judge had not made probability findings on those matters. The Court of Appeal therefore adopted a pragmatic approach: it ordered costs in the appellant’s favour but applied a 20% reduction to reflect the missed opportunity, describing this as necessarily “rough-and-ready”.

(d) The Court of Appeal’s additional (contingent) reasoning under HRA section 9

The Court of Appeal also explained that if (contrary to its reading of the judge’s findings) the delay had been a “judicial act in good faith”, HRA section 9 would have redirected the monetary liability for Article 5(5) damages to the Crown (with the “appropriate person” joined). On that hypothesis, the court indicated there was “absolutely no reason” (subject to the missed opportunity) why costs would not also have followed against the Secretary of State.

This is significant because it prevents a conceptual “gap”: even if delay is judicial, section 9 provides a route for damages (and, by ordinary principle, costs) against the Crown rather than against the tribunal itself.

3.3 Impact

• Sharper boundary around the Parole Board’s “costs immunity” arguments: The decision confines Davies/Gourlay to their proper domain—challenges to adjudicative decisions where the tribunal remains neutral—while making clear that the Parole Board can be exposed to ordinary adverse costs where it is found to have caused unlawful delay administratively and to be liable in damages.
• Practical incentives in delay litigation: Claimants bringing successful Article 5(4) delay claims with HRA damages should ordinarily recover costs (subject to conduct reductions), making such claims realistically litigable and reducing the likelihood that modest damages are swallowed by irrecoverable litigation costs.
• Costs case management signals: The 20% reduction highlights that even successful claimants can face meaningful costs consequences for avoidable litigation drift, especially where an earlier hearing might have been pursued.
• Administrative vs judicial characterisation becomes outcome-relevant: Parties will likely focus more intensely on whether the delay is truly “administrative” (case management, listing resources, dossier handling) or “judicial” (panel directions/adjournments), because that affects who pays damages (Parole Board vs Crown via section 9) and may influence costs arguments.

4. Complex concepts simplified

• “Tariff” / “post-tariff lifer”: The “tariff” is the minimum term a life prisoner must serve before release can be considered. After tariff expiry, continued detention must be justified by public protection, and the prisoner must have a speedy review mechanism.
• Article 5(4) ECHR (“speedy” review): A detained person has the right to have the lawfulness of detention decided “speedily” by a court. For life prisoners post-tariff, parole review is the mechanism that must occur without undue delay.
• Article 5(5) ECHR (compensation): If detention is unlawful (including because Article 5(4) has been breached in a way that leads to unlawful continued detention), there is an enforceable right to compensation.
• HRA section 9 (judicial acts): If the wrong is a “judicial act done in good faith”, damages (where permitted) are awarded against the Crown rather than the judge/tribunal, provided the responsible minister is joined.
• The “Davies practice”: A costs approach developed to avoid routinely ordering inferior courts/tribunals/coroners to pay costs when their decisions are judicially reviewed and they remain neutral. It is not a blanket exemption; it is a context-sensitive practice.
• “Legal aid statutory charge”: Where a legally aided person recovers money (e.g., damages), legal aid rules can require that recovery to be used to repay legal aid costs, potentially absorbing the award unless costs are recovered from the opponent.
• “Detailed assessment”: If costs are not agreed, the amount is assessed by the court under established procedures to determine what is reasonable and proportionate.

5. Conclusion

[2026] EWCA Civ 1199 confirms that the Parole Board cannot rely on the Davies/Gourlay “neutral tribunal” costs practice to avoid paying costs where the court finds that administrative delay in convening a parole hearing caused a breach of Article 5(4) and led to an HRA damages award. In that setting, the ordinary rule—costs follow the event—applies, though the court may apply a pragmatic percentage reduction to reflect a claimant-side “missed opportunity” in progressing proceedings.

The judgment is likely to be cited as the leading modern statement that “neutrality” is not a universal shield: what matters is the nature of the function under challenge and the rationale for tribunal-costs protection, not the mere fact that the defendant is a tribunal or that it has taken a restrained stance in the litigation.