Factual and Procedural Background
This appeal arises from an Order of King J dated 2 February 2015, which made no order for costs in a judicial review brought by the Appellant, a life prisoner serving in closed conditions. The Appellant challenged the decision of the Parole Board ("the Board") dated 10 March 2014, which declined to release him or recommend his transfer to open prison conditions. The Board did not actively participate in the judicial review. The claim was successful, with King J finding the Board acted unlawfully and remitting the matter for reconsideration.
The appeal concerns whether the established High Court practice of making no order for costs against an inferior tribunal or court that plays no active part in a judicial review extends to the Board.
The Appellant had been convicted and sentenced to life imprisonment with a tariff expired in 2005. He sought release or transfer to open conditions in 2013. The Board refused both. The Appellant challenged the Board's decision on grounds that it was unlawfully based solely on his denial of offences and consequent ineligibility for a treatment programme. The Board maintained a neutral stance, filing an Acknowledgement of Service indicating it would not contest the claim, and did not participate further. Permission to proceed was granted, and King J allowed the claim, remitting the matter for a fresh review and declined to order costs in favor of the Appellant. The present appeal challenges that refusal to award costs.
Legal Issues Presented
- Does the High Court's established practice of making no order for costs for or against an inferior tribunal or court that plays no active part in a judicial review extend to the Parole Board?
Arguments of the Parties
Appellant's Arguments
- The Board does not meet the criteria of a "court or tribunal" for costs purposes because of a closer relationship with the executive, evidenced by the Secretary of State's August 2014 Direction guiding the Board's approach to transfer decisions.
- The Board cannot properly maintain a "neutral stance" in judicial review challenges since it has the power and policy to consider conceding claims. Its failure to concede or actively contest should be treated as contesting, warranting a costs order against it.
- The principles in Davies are policy-based and should be reconsidered in light of the judgment in M, which promotes awarding costs to successful claimants in public law claims, thus encouraging early concession of claims by public bodies like the Board.
- The new approach in M aims to encourage settlement and reduce public costs, so the Board should be incentivised to engage with claims through potential adverse costs orders.
- The historic reasons for a different approach to courts and tribunals do not apply to the Board, which has corporate status and indemnity against costs.
- Following JFS, the fact that claimants are publicly funded is a relevant factor supporting costs awards against public bodies like the Board.
- The scope of Davies should be restricted; the Board should be subject to the usual costs regime of M, not Davies, when defending judicial reviews.
- If the Board is independent and impartial for release decisions, it is not so for transfer decisions, which are only recommendations and not binding, so Davies does not apply to transfer decisions.
Respondent (Parole Board)'s Arguments
The opinion does not contain a detailed account of the Board's arguments beyond those implicit in the judgment and submissions noted.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Brooke) v Parole Board [2008] EWCA Civ 29 |
Parole Board's status as an executive non-departmental body free from direct governmental control. |
Confirmed the Board's administrative independence and its judicial characteristics relevant to article 5(4). |
| R (Gilbert) v Parole Board [2015] EWHC 927 (Admin) |
Secretary of State's discretion to refer transfers to the Board and non-binding nature of Board's advice on transfers. |
Supported the distinction between Board recommendations and Secretary of State's ultimate decision on transfers. |
| R (Harris) v Secretary of State for Justice [2014] EWHC 3752 (Admin) |
Non-binding nature of Board's advice to Secretary of State on transfers; Secretary of State must consider all factors. |
Reinforced the Secretary of State's final decision-making role on transfers despite Board's advice. |
| R (West) v Parole Board [2005] UKHL 1 |
Board as the "primary decision-maker" for release decisions after tariff expiry under article 5(4) ECHR. |
Established the Board's judicial decision-making role in release decisions binding on the Secretary of State. |
| Weeks v United Kingdom (1987) 10 EHRR 293 |
Definition of a "court" under article 5(4) ECHR requiring independence, judicial procedure, and decision-making power. |
Confirmed the Board can be considered a "court" for release decisions if conditions are met. |
| Van de Hurk v Netherlands (1994) 18 EHRR 481 |
Binding nature of tribunal decisions necessary for tribunal status under article 5(4). |
Emphasised the importance of binding decisions in defining a tribunal. |
| R (Davies) v HM Deputy Coroner for Birmingham [2004] EWCA Civ 207 |
Established practice on costs against inferior courts/tribunals not actively participating in judicial review. |
Applied as the governing principle for costs orders against courts/tribunals that do not actively contest claims. |
| R (M) v Croydon London Borough Council [2012] EWCA Civ 595 |
General rule that successful public law claimants are entitled to costs; no distinction from private law claims. |
Referenced in argument but distinguished from Davies in relation to courts/tribunals. |
| R (Gudanaviciene) v First-tier Tribunal (Immigration and Asylum Chamber) [2017] EWCA Civ 352 |
Confirmed that M does not alter the established costs principles in Davies for courts and tribunals. |
Binding precedent rejecting the argument that M changed costs approach for tribunals not actively defending claims. |
| R (E) v Governing Body of JFS [2009] UKSC 1 |
Costs considerations in public law claims involving publicly funded parties. |
Clarified that public funding status should not influence costs orders to claimant's disadvantage. |
| Providence Capitol Trustees Limited v Ayres [1996] 4 All ER 947 |
Costs practice regarding ombudsmen not actively participating in judicial review. |
Referenced as analogous authority supporting no costs order where no active participation. |
| R (Boxall) v Waltham Forest London Borough Council (2000) 4 CCLR 258 |
Costs orders in cases involving legally aided litigants. |
Confirmed legal aid status is immaterial to costs order decisions where claimant succeeds. |
| Osborn v Parole Board [2013] UKSC 61 |
Procedural fairness and requirement for oral hearings before the Board. |
Confirmed procedural fairness applies equally to transfer and release decisions of the Board. |
Court's Reasoning and Analysis
The court began by recognising the Board's dual functions: making binding release decisions after tariff expiry and non-binding recommendations on transfer to open conditions. It accepted that the Board acts in a judicial or quasi-judicial capacity throughout these processes, even if article 5(4) ECHR applies strictly only to release decisions.
The court analysed the established High Court practice on costs from Davies, which holds that inferior courts or tribunals that do not actively participate in judicial review proceedings are not liable for costs unless they behave improperly or unreasonably. This practice reflects public policy considerations and the avoidance of penalising judicial bodies for errors.
The Appellant's argument that the Board should be treated differently was rejected. The court found no merit in claims that the Board lacked independence or impartiality, or that the August 2014 Direction unlawfully interfered with the Board's decision-making. The Board's power and policy to consider conceding claims does not equate to an obligation or to actively contesting claims.
The court further noted that the more recent approach to costs in public law claims as expressed in M does not alter the principles in Davies regarding courts and tribunals. The binding authority of Gudanaviciene reinforced that M does not impose costs liability on courts or tribunals that do not actively defend judicial reviews.
The court also addressed the argument concerning public funding and costs, clarifying that public funding status is irrelevant to costs orders for courts or tribunals, consistent with prior authorities including JFS.
Finally, the court reasoned that even though transfer decisions by the Board are only recommendations, the Board performs a function similar in nature and procedure to its release decisions, justifying the application of the same costs principles. Moreover, the Secretary of State remains a potential interested party in transfer challenges, providing an alternative avenue for costs claims.
Holding and Implications
The court DISMISSED the appeal, affirming that the established practice of not ordering costs against an inferior court or tribunal that takes no active part in judicial review applies equally to the Parole Board, including in respect of its transfer recommendations.
The direct effect is that the Appellant is not entitled to a costs order against the Board in these circumstances. No new precedent was established beyond reaffirming the applicability of Davies to the Board's functions and rejecting attempts to distinguish transfer recommendations from release decisions for costs purposes.