Factual and Procedural Background
This opinion concerns a judicial review case transferred mandatorily from the Administrative Court to the Upper Tribunal under section 31A of the Senior Courts Act 1981. The substantive dispute involved the parents of the Plaintiff contesting the content of the Plaintiff's statement of special educational needs, particularly regarding the school named therein. The local authority had changed its position on the appropriate school, leading to a consent order agreed before the First-tier Tribunal but later set aside by a salaried Judge of that Tribunal. The setting aside was an excluded decision under section 11 of the Tribunals, Courts and Enforcement Act 2007, thus barring an appeal to the Upper Tribunal and necessitating judicial review. The Upper Tribunal held a rolled-up hearing and granted the judicial review application, with costs issues subsequently arising.
Legal Issues Presented
- What principles should apply to the power to award costs in judicial review cases before the Upper Tribunal where it has exclusive jurisdiction, particularly when challenging decisions of the First-tier Tribunal?
- If the Upper Tribunal should apply the same costs principles as the High Court (costs-shifting), how should those principles be applied in this case?
- If other principles apply, how should they be applied in this case?
Arguments of the Parties
Appellant's Arguments
- The Upper Tribunal should apply the same costs principles as the High Court under CPR 44.3, adopting a costs-shifting approach.
- Costs-shifting promotes access to justice by enabling successful parties, often of modest means, to recover their costs when exercising judicial review rights.
- The distinction between types of judicial review cases or whether jurisdiction is exclusive or concurrent is immaterial to the application of costs-shifting principles.
Interested Party's Arguments
- The appropriate principle is that costs should only be awarded where the tribunal below had power to award costs, consistent with the overriding objective and the Costs in Tribunals report.
- The legislative framework does not mandate costs-shifting and adopting it would create barriers to justice.
- Judicial review in the tribunal context differs from High Court judicial review and statutory appeals in ways that counsel against wholesale adoption of High Court costs principles.
- The Upper Tribunal's rules and discretion reflect a policy choice to limit costs awards, particularly in cases challenging First-tier Tribunal decisions.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 1044 |
Establishes that grounds for intervention by way of judicial review and statutory appeal are substantively identical. |
Used to support the view that no relevant distinction exists between judicial review and statutory appeals for access to justice and costs considerations. |
| CB v Suffolk CC (Enforcement Reference) [2010] UKUT 413 (AAC); [2011] AACR 22 |
Caution against importing High Court principles into Upper Tribunal decisions, particularly regarding procedural matters. |
Referenced to justify reluctance to import Civil Procedure Rules principles wholesale into Tribunal Procedure Rules. |
| R (Howes) v Child Support Commissioners [2007] EWHC 559 |
Similar caution against importing High Court procedural principles into Tribunal decisions. |
Supported the court's cautious approach to applying High Court costs principles in the tribunal context. |
| R (CD) v First-tier Tribunal [2010] UKUT 181 (AAC) |
Further support for the cautious approach to applying High Court principles in tribunal proceedings. |
Used to reinforce the court's view on the distinctiveness of tribunal procedure and costs regimes. |
| Ridehalgh v Horsefield [1994] Ch 205 |
Defines "unreasonable conduct" in the context of costs and wasted costs applications. |
Applied to assess whether the interested party's conduct in the present case was unreasonable for costs purposes. |
| HJ v London Borough of Brent (SEN) [2011] UKUT 191 (AAC) |
Application of the Ridehalgh test to unreasonable conduct in tribunal proceedings. |
Used to clarify the standard for unreasonable conduct relevant to costs orders in the present case. |
| R (Davies) v HM Deputy Coroner for Birmingham (No 2) [2004] EWCA Civ 207 |
Example where a successful claimant did not recover costs due to the nature of the defendant (a tribunal). |
Referenced to illustrate exceptions within the High Court costs regime relevant to access to justice considerations. |
Court's Reasoning and Analysis
The court began by examining the Upper Tribunal's judicial review jurisdiction and the applicable costs regimes in the Upper Tribunal, First-tier Tribunal, and High Court. It noted that while the Upper Tribunal has broad discretion under section 29 of the 2007 Act to award costs, this discretion is subject to Tribunal Procedure Rules, notably rule 10 of the Upper Tribunal Rules.
The court observed that the Upper Tribunal Rules prohibit costs orders in proceedings transferred or appealed from other tribunals except in limited circumstances, with judicial review proceedings being a carve-out. However, the rules neither require nor preclude the adoption of High Court costs-shifting principles.
Considering submissions, the court preferred the Interested Party's argument that, as a general rule, the Upper Tribunal should not make costs orders in judicial review cases challenging First-tier Tribunal decisions where the First-tier Tribunal itself would not have power to award costs. This approach aligns with the overriding objective of dealing with cases fairly and justly, including proportionality and enabling parties to participate fully.
The court reasoned that costs-shifting would likely deter claimants, many of whom represent themselves or have lay representatives, from pursuing their rights due to financial risk. It also noted that the Upper Tribunal Rules were drafted to keep options open given the diversity of judicial review cases.
The court rejected the Appellant's submission that the High Court's costs-shifting regime should apply universally, emphasizing the distinct nature of tribunal proceedings and the desirability of clear, self-contained rules.
Regarding whether the Interested Party acted unreasonably to justify a costs order, the court applied the established test from Ridehalgh v Horsefield and subsequent cases. Despite acknowledging that the Interested Party's representative appeared out of her depth, the court found that the conduct was not unreasonable as it was not vexatious or harassing, and the misunderstandings were not without reasonable explanation.
Therefore, the court concluded that no order for costs should be made.
Holding and Implications
The court held that no order for costs should be made.
The court established that, as a general rule, in judicial review cases before the Upper Tribunal challenging First-tier Tribunal decisions where the Upper Tribunal has exclusive jurisdiction, costs should only be awarded where the First-tier Tribunal would have had power to do so. This principle promotes access to justice by reducing financial risks for parties, particularly those self-represented or with lay representatives.
The decision does not create a universal rule for all judicial review cases before the Upper Tribunal, leaving open the possibility that different principles may apply in other categories, such as immigration judicial review cases. No new precedent was set beyond the specific category of cases addressed, and the ruling emphasizes the distinct procedural framework of tribunals compared to the High Court.