Summary of High Court Ex Tempore Judgment

Factual and Procedural Background

This is an ex tempore judgment delivered by Judge [Last Name] on 22 July 2025 concerning an application by Company A (the Applicant) for an order for costs on a solicitor/client basis against Company B (the First Respondent) following judicial review proceedings challenging a decision of Company C (the Second Respondent). In an oral ruling on 10 December 2024 the court found in favour of the applicants in the substantive proceedings and indicated it proposed to quash Company C's decision and remit the matter to Company C for fresh consideration within a specified timetable.

Following that ruling, Company B and Company A exchanged memoranda in the context of the remitted consideration. Company C made a new decision on 16 December 2024. Company A alleges that material contained within a report prepared by Company B for the remitted consideration (provided on 13 December 2024) disclosed the real reasons for refusal of qualification and that this material had not been placed before the court during the substantive proceedings. Company A sought a solicitor/client costs order on the basis that Company B had breached the duty of candour owed by public bodies in judicial review proceedings.

The court received affidavits and submissions in support of and in opposition to the costs application, including affidavits from the principal deponent for Company A and a replying affidavit from a deponent for Company B. The court heard oral submissions and delivered a decision declining to make the solicitor/client costs order and then dealt with the costs of the costs application.

Legal Issues Presented

1. Whether Company B breached the duty of candour owed to the court by failing to disclose material reasons for refusing to qualify Company A's candidate units prior to the court's oral ruling (i.e., whether there was wrongful or blatant non-disclosure sufficient to warrant sanction).
2. Whether the circumstances justified departing from the normal rule (party and party costs) and exercising the court's discretion to award costs on a solicitor/client basis to mark disapproval of Company B's conduct.
3. Whether, having refused the solicitor/client costs order, the court should order that costs of the application for solicitor/client costs follow the event (i.e., whether Company B should be awarded its costs of defending the enhanced costs application).

Arguments of the Parties

Applicant's Arguments

• Company A submitted that material in a report prepared by Company B for the remitted consideration (provided 13 December 2024) contained almost entirely new information that disclosed the real reasons for refusal and that this material should have been put before the court during the substantive proceedings.
• Company A argued that Company B thereby failed to comply with the duty of candour owed by public bodies in judicial review proceedings and that such failure justified the exceptional remedy of costs on a solicitor/client basis to mark the court's disapproval.
• Company A accepted it had an opportunity to make representations during the remitted consideration and did not assert procedural unfairness in that remitted process; the complaint was confined to non-disclosure to the court in the substantive proceedings.

First Respondent's Arguments

• Company B accepted that party and party costs were appropriate but denied any basis for a solicitor/client costs order.
• Company B contended the report at issue was prepared in response to new information supplied by Company A on 13 December 2024 and that the report expanded on or addressed that new material, rather than representing previously withheld reasons.
• Company B denied that it had ulterior motives, disputed the assertion of competition for transmission infrastructure, and asserted the report was prepared solely to assist the decision-maker in the remitted consideration.
• Company B also emphasised the speed and compressed timetable within which the report was prepared and that references to comparative projects had been deployed earlier in the process.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied the established framework for exceptional costs (as distilled in the Trafalgar decision and approved by higher courts) and examined whether Company A had proved, to the required standard, that Company B had committed a particularly serious or blatant breach warranting solicitor/client costs. The court identified two matters Company A had to establish: (1) that Company B breached its duty of candour by withholding material reasons for refusal at the time of the substantive proceedings; and (2) that the facts justified the court exercising its discretion to award the exceptional costs order to mark its disapproval.

The court accepted that some new material appeared in Company B's report prepared for the remitted consideration and acknowledged an adjusted emphasis in that report on matters such as substation expansion, planning issues and the impact on other projects. The court noted, however, that several cumulative factors weighed against finding wrongful non-disclosure:

• Company A itself had provided additional material within the remitted process which Company B was responding to, and Company B's report stated it was addressing new or expanded material provided by Company A.
• The same overarching refusal ground—feasibility of connection within the relevant timeframe—remained central throughout; the report elaborated on obstacles rather than presenting an entirely different ground.
• Affidavits from the substantive proceedings were not directed to the specific allegation of non-disclosure, creating a risk of over-extrapolation from those affidavits.
• Many deponents had been addressing different procedural forums (e.g., the CMDRB hearing) where the focus differed from the present costs application.
• The report was prepared quickly and delivered shortly before midnight on 13 December 2024 in the context of a compressed timetable imposed by the impending capacity auction.
• The court emphasised the high threshold demanded by the case law for departing from the normal costs rule and for finding behaviour of such a blatant or serious nature as to merit solicitor/client costs.

The court also stressed the evidential difficulties in making findings about motivation or deliberate withholding without clearer contemporaneous material or oral evidence on those disputed issues. On balance, while accepting that Company A had legitimate concerns and that Company B's report contained additional matters, the court concluded that the alleged non-disclosure had not been proved to the requisite standard to justify exercising the exceptional jurisdiction to award solicitor/client costs. The court therefore declined to make the solicitor/client costs order.

On the discrete question of costs of the costs application, the court considered whether costs should follow the event and whether any departure from the normal rule was justified. Although Company B prevailed on the application, the court took into account that Company A's concerns were not wholly baseless and that Company B acknowledged in affidavit that the report identified "further obstacles" to connection within the timeframe. Considering fairness, the court exercised its discretion to make no order as to costs of the motion (i.e., no further costs order), rather than ordering costs to follow the event or awarding costs against Company A.

Holding and Implications

Holding: The court REFUSED the Applicant's application for an order for costs on a solicitor/client basis against the First Respondent. On the discrete application concerning costs of that motion, the court ordered NO ORDER as to costs of the motion.

Implications:

• The direct effect is that Company A's request for exceptional solicitor/client costs was unsuccessful and Company B is not ordered to pay solicitor/client costs to Company A.
• The court made no order on the costs of the costs application, meaning no party is awarded those costs by the court in this ruling.
• The decision reiterates the high threshold required to depart from the normal party-and-party costs rule and confirms that, even where additional material emerges in a remitted reconsideration, the court will require clear evidence of deliberate or blatant non-disclosure before making an exceptional costs order. The opinion does not purport to establish new precedent beyond applying and reinforcing the existing principles described in the cited authorities.

Appearances (Anonymized)

For Company A (Applicant): Attorney [Last Name] and Attorney [Last Name], instructed by Company D.

For Company B (First Respondent): Attorney [Last Name] and Attorney [Last Name], instructed by Company E.

Notes on Sources

This summary is based exclusively on the information contained in the provided opinion. Where the opinion did not provide further detail, no additional facts or inferences have been included.