Costs in Compromised Judicial Review: A “Chaser” Email Is Not a Pre-Action Protocol Letter and a Three‑Month “Aim” Creates No Legal Deadline

1. Introduction

Khan, R (On the Application Of) v Secretary of State for the Home Department [2026] EWCA Civ 997 is a Court of Appeal costs decision arising out of judicial review proceedings that were compromised after the Secretary of State made a further entry-clearance decision. The underlying substantive dispute (visitor entry clearance) did not proceed to a merits determination. Instead, the Upper Tribunal made no order as to costs, and the claimant appealed.

The central question was whether, in a compromised judicial review where the claimant obtained the practical outcome sought (a fresh decision), the claimant should nevertheless be denied costs because he had not complied with the pre-action protocol for the claim actually issued (a delay challenge), and because the relevant delay was not shown to be unlawful.

The claimant was a Pakistani national seeking to visit the UK. After an initial refusal, a pre-action protocol letter challenged that refusal. The Secretary of State withdrew the refusal and stated the entry clearance team aimed to reconsider within three months. No decision was made within that period; the claimant issued judicial review alleging unlawful delay; the Secretary of State then made a new decision, the claim was withdrawn, and costs were left to the Upper Tribunal.

2. Summary of the Judgment

  • The Court of Appeal dismissed the costs appeal and upheld the Upper Tribunal’s no order as to costs.
  • The original pre-action protocol letter (which challenged the initial refusal) did not constitute compliance for the later judicial review (which challenged delay in reconsideration).
  • The claimant’s “chaser” email demanding a decision by the three-month date was not a compliant pre-action protocol letter: it did not set out the legal basis, did not provide the usual response period, and urgency was not established.
  • The case was not materially distinguishable from the Court of Appeal’s earlier costs guidance in R(Nisar and others) v Secretary of State for the Home Department; R(Mammedov) v Secretary of State for the Home Department (R(Nisar)) [2025] EWCA Civ 1646.
  • Internal Home Office documents referring to the chaser as “PAP” did not change the legal character of what was sent.

3. Analysis

3.1 Precedents Cited

(a) Roache v News Group [1998] EMLR 161 (appellate restraint on costs)

The Court reaffirmed the established principle that appellate courts interfere with costs orders only where the lower court: (i) erred in principle; (ii) left out relevant matters; (iii) took into account irrelevant matters; or (iv) reached a decision that was plainly wrong. This threshold—cited via R(Nisar)—framed the appeal: the claimant had to show a material misdirection in the Upper Tribunal’s approach, not simply that another costs order was possible.

(b) R(M) v Croydon London Borough Council [2012] EWCA Civ 595; [2012] 1 WLR 2607 (costs in compromised judicial review)

R(M) remains the leading authority on costs where judicial review is compromised. It emphasises “usual” civil principles: the party who obtains the relief sought is ordinarily treated as successful and normally receives costs; where success is mixed, costs reflect who is “more successful”; and unusual features can justify departure from the norm.

In [2026] EWCA Civ 997, the Court accepted the claimant arguably achieved the practical outcome (a fresh decision), but treated non-compliance with pre-action obligations and the absence of clearly unlawful delay as “unusual features” capable of justifying a departure from the default “costs follow the event” intuition.

(c) R(Nisar and others) v Secretary of State for the Home Department; R(Mammedov) v Secretary of State for the Home Department (R(Nisar)) [2025] EWCA Civ 1646; [2026] 4 WLR 2

The Court treated R(Nisar) as effectively determinative of the present pattern. In R(Nisar), one appeal succeeded but the other (Mammedov) failed. The Court highlighted that an “aim” to decide by a stated date does not create a legally enforceable deadline; delay must reach a level of “manifest unreasonableness” before unlawfulness is established; and a claimant who sues without proper pre-action engagement may properly be denied costs, even if the public authority later produces the decision.

Here, the Court characterised the claimant’s position as materially aligned with the Mammedov scenario: the Secretary of State had expressed an intention/aim rather than an obligation, and the period of slippage beyond three months was not shown to be unlawfully excessive in public law terms.

(d) R (Ullah) v Secretary of State for the Home Department [2022] EWCA Civ 550

R (Ullah) was used in R(Nisar) (and referenced here) as an illustration of the “manifestly unreasonable” threshold for delay challenges. The Court relied on that benchmark to conclude that missing a three-month “aim” by a relatively short margin did not, without more, establish unlawfulness.

3.2 Legal Reasoning

(1) Identifying the true subject of the judicial review claim

A pivotal step was the Court’s agreement with the Upper Tribunal that the litigation actually issued was not a challenge to the original refusal (which had been withdrawn), but a challenge to delay in making the reconsideration decision. That distinction mattered because pre-action compliance is assessed against the claim brought, not against earlier, different disputes.

(2) The pre-action protocol function: notice of the legal case, not merely a request for action

The Court treated the pre-action protocol as serving a substantive purpose: enabling the public body to understand the claimant’s legal complaint and respond without proceedings. The claimant’s chaser email—though it demanded a decision by the three-month date—did not:

  • set out the legal basis for asserting that missing the target date was unlawful;
  • provide the usual response window (the judgment referenced the absence of a 14-day opportunity); or
  • establish urgency that would justify truncating the protocol timetable.

The Court therefore endorsed the Upper Tribunal’s view that proceedings were issued prematurely (“jumped the gun”) in circumstances where proper pre-action steps could realistically have avoided litigation.

(3) “Aim” versus enforceable duty and the unlawfulness of delay

A recurring theme (consistent with R(Nisar)) is that an administrative statement that a team “aims” to reconsider within a time period does not by itself convert that aspiration into a legal obligation. For a delay challenge to succeed, the claimant must show delay that is legally unreasonable in the public law sense—often expressed as “manifestly unreasonable”. The Court held the delay beyond the three-month target did not cross that threshold.

(4) Internal documents do not cure external procedural defects

The claimant relied on internal Home Office communications (obtained via subject access) referring to the chaser as “PAP”. The Court accepted the label appeared internally, but held it did not transform a non-compliant message into a compliant protocol letter. The analysis stayed objective: what did the claimant actually send, and did it serve the protocol’s purpose?

(5) Discretion and appellate restraint on costs

The Court concluded that, even if the claimant could be seen as obtaining the practical outcome, the Upper Tribunal was entitled to treat the failure to comply with the protocol (for the delay-based claim) and the absence of demonstrable unlawfulness as sufficient reasons to make no order as to costs. Given Roache v News Group and the discretionary nature of costs, there was no basis to label the decision “plainly wrong” or based on error of principle.

3.3 Impact

(a) For immigration-entry clearance delay claims

The decision reinforces that missing an internally stated decision-making “aim” (even if communicated to the applicant) is not automatically unlawful, and that relatively modest slippage will often be insufficient to ground a delay-based judicial review. Claimants should be prepared to evidence why the particular delay is legally unreasonable (context, consequences, duration, and any statutory/policy framework).

(b) For costs strategy in compromised judicial review

Even when proceedings prompt a decision, costs are not automatic. A claimant who issues without a proper pre-action protocol letter tailored to the actual pleaded case risks a “no order as to costs” outcome, particularly where unlawfulness is not clear.

(c) For public authorities

The Court was openly critical of repeated failures to meet the three-month “aim” and of failures to communicate (including not acknowledging the chaser email). Although that criticism did not translate into an adverse costs order here, it signals litigation risk and reputational risk. The judgment also reiterates the practical message from R(M) encouraging early agreement on both substance and costs to avoid satellite costs litigation.

4. Complex Concepts Simplified

Compromised judicial review
A judicial review that ends without a final court determination on the legality of the decision because the parties settle (for example, the authority re-makes the decision), leaving the court to determine residual matters such as costs.
Pre-action protocol letter (PAP letter)
A formal pre-litigation letter explaining what decision/omission is challenged, why it is alleged to be unlawful, what remedy is sought, and giving the defendant a reasonable time to respond. A reminder or “chaser” that merely asks for action by a date may not suffice.
“Aim” vs legal duty
An authority’s statement that it “aims” to act within a period usually indicates a target, not an enforceable deadline. Missing a target may be poor administration, but it is not necessarily unlawful.
Manifestly unreasonable delay
A high threshold in public law: delay becomes unlawful when it is so excessive, in its context, that it is clearly beyond what a reasonable decision-maker could permit. The court assesses all the circumstances, not merely whether a promised timescale was missed.
No order as to costs
Each side bears its own costs. In judicial review this can reflect mixed responsibility: for example, poor administration by the authority combined with premature litigation by the claimant.

5. Conclusion

[2026] EWCA Civ 997 confirms (in line with R(Nisar) and R(M)) that in compromised judicial review, “practical success” does not guarantee a costs award where the claimant failed to comply with the pre-action protocol for the claim actually brought and where the alleged delay is not established as unlawful. A chaser email—even if treated internally as “PAP”—will not substitute for a compliant protocol letter. The judgment is a clear warning against treating missed administrative “aim” dates as legally enforceable deadlines, and it underscores the court’s reluctance to interfere with discretionary costs decisions absent identifiable error.