Summary of Legal Opinion (Anonymized)
Factual and Procedural Background
The Appellant (a trade union representing civil service workers, including several thousand members employed in border services) challenged Regulation 3 of the Strikes (Minimum Service Levels: Border Security) Regulations 2023 made under the Strikes (Minimum Service Levels) Act 2023. Regulation 3 permits the Respondent to serve short-notice "work notices" requiring unions to take reasonable steps to ensure specified border services staff do not participate in strike action, on pain of loss of immunity from tort and loss of statutory protections for members.
On 17 January 2024 the Appellant sent a pre-action protocol letter arguing that the Regulations unlawfully interfered with Article 11 ECHR rights and inviting withdrawal or repeal. Following a response declining to withdraw, the Appellant issued judicial review proceedings on 5 March 2024 challenging Regulation 3 on multiple grounds, principally under Article 11 ECHR and vires of the primary legislation. Permission to apply for judicial review in respect of the first two grounds was granted by Judge Holgate on 8 May 2024.
A general election on 4 July 2024 resulted in Party A forming a government. Shortly thereafter a Minister wrote to the Appellant indicating Party A's commitment to repeal the 2023 Act and stating that, in the interim, the Home Secretary (the Respondent) would not exercise the power to issue work notices under the Regulations. The Respondent's lawyers invited the Appellant to discontinue the claim on the basis that it had become academic. The parties agreed a notice of discontinuance; the Administrative Court approved an order which incorporated the Minister's letter. The Appellant then sought its costs; the Respondent opposed recovery of costs on the ground that the claim had become academic for political reasons rather than on its merits. Judge Jarman exercised his discretion and made no order as to costs. The Appellant appealed that costs decision.
Legal Issues Presented
- Whether Regulation 3 of the MSL Regulations unlawfully infringed Article 11 ECHR rights of the Appellant's members.
- Whether the MSL Regulations exceeded the vires of the primary legislation because of limits imposed by Article 11.
- Whether the claim's discontinuance rendered the proceedings academic for reasons unconnected to the merits, and if so, whether the Appellant was entitled to its costs.
Arguments of the Parties
Appellant's Arguments
- The impugned regulation unlawfully and disproportionately restricted Article 11 rights (freedom of association and right to strike).
- The short notice regime made it impracticable to challenge individual work notices in time and had a chilling industrial effect.
- The claim achieved "substantial success" because the incoming Government committed to repeal the 2023 Act and stated the relevant Regulations were "unduly restrictive"; accordingly the Appellant should recover costs in full.
- The judge erred by treating the Government's change of policy as disentitling the Appellant from costs and failed to give adequate reasons or engage with submissions that the claim had been wholly successful.
Respondent's Arguments
- The Respondent maintained that the Regulations did not unlawfully infringe Article 11 in its pleadings and defended the claim on the merits.
- When the incoming Government announced a policy to repeal the 2023 Act and declined to exercise the relevant powers in the interim, the claim became academic for political reasons unconnected with the litigation.
- The Appellant must demonstrate a causal link between the litigation and the outcome to recover costs; in this case the Respondent contended that no such link existed and filed no witness evidence explaining its rationale for withdrawal.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Roache v News Group Newspapers Ltd [1998] EMLR 161 |
Standard of appellate interference with costs decisions: error of principle, failure to take account of relevant matters, or wholly wrong balancing. |
Reiterated as the test for interfering with a judge's costs discretion. The court applied it to assess whether Judge Jarman had erred in principle. |
| Burgess v Lejonvarn [2020] EWCA Civ 114; [2020] 4 WLR 43 |
Approval of the approach in Roache on appellate review of costs. |
Referenced as an example of approval of Roache; used to support the applicable standard on appeal. |
| R (Parveen) v Redbridge LBC [2020] EWCA Civ 194; [2020] 4 WLR 53 |
Approval of appellate approach and commentary on how discretion is exercised. |
Used to illustrate established principles about appellate review of costs discretion. |
| R (M) v Croydon LBC [2012] EWCA Civ 595; [2012] 1 WLR 2607 |
Approach to costs where a public body concedes relief after proceedings issued; principles on when claimants should recover costs following settlement. |
Held to be the classic authority: the court applied its classifications (wholly successful; partly successful; compromise not reflecting claimant's claims) and used Lord Neuberger's guidance on causation and likelihood of success to assess entitlement to costs. |
| R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415; [2016] 1 WLR 4853 |
Limits on assessing success in public law settlements and the importance of what was achievable. |
Quoted for the proposition that success in public law must be assessed by reference to what was achievable and the basis on which relief was sought. |
| Speciality Produce Ltd v Secretary of State for the Environment [2014] EWCA Civ 225; [2014] CP Rep 29 |
Causation requirement: whether the litigation caused the relief obtained where multiple parallel routes were pursued. |
Applied to show that where an applicant pursues parallel routes and one succeeds, costs will not necessarily follow for both unless causation is established. |
| R (RL) v Croydon LBC [2018] EWCA Civ 726; [2019] 1 WLR 224 |
Assessment of causation and whether the proceedings produced the outcome or whether it would have happened anyway. |
Used to illustrate cases where the factual timing showed the outcome was likely irrespective of proceedings; the court compared that reasoning to the present case. |
| ZN (Afghanistan) v Secretary of State for the Home Department [2018] EWCA Civ 1059; [2018] 3 Costs L.O. 357 |
Distinction between concessions connected to litigation and extrinsic administrative reasons; causation and conduct considerations for costs. |
Applied to support the view that concessions for reasons extrinsic to litigation do not automatically make the claimant entitled to costs. |
| R (Bahta) v SSHD [2011] EWCA Civ 195; [2011] 5 Costs LR 857 |
Requirement that defendants give clear reasons when settling for "purely pragmatic" reasons; shift in courts' approach to costs in such cases. |
Relied upon by the Appellant to argue for a stricter requirement for explanations; the court acknowledged Bahta's role in changing approach but distinguished the present facts. |
Court's Reasoning and Analysis
The court began by identifying the basis of Judge Jarman's brief reasons: he concluded that the claim became academic for political reasons following a change of government rather than because of the claim itself. The central issue on appeal was whether that reasoning involved an error of principle or law.
The court accepted the constitutional submission that a new Government does not absolve itself of legal responsibility for acts of a predecessor. But it also emphasised that the Respondent was not asserting absolution; rather the Respondent (and the incoming Government) had already formulated a clear and public policy commitment to repeal the 2023 Act. The Minister's letter recorded that commitment and stated that the Respondent would not exercise the power to issue work notices in the interim.
The court applied established authorities on costs in judicial review claims, notably Lord Neuberger's guidance in R (M) v Croydon LBC. That authority requires consideration of whether the claimant was wholly successful, partly successful, or whether the settlement reflected a compromise not grounded in the claimant's merits. The court considered subsequent authorities (Speciality Produce, ZN (Afghanistan), R (RL) v Croydon) that emphasise causation — the claimant must ordinarily show that the litigation caused the concession or that it is "tolerably clear" the claimant would have succeeded at trial.
The court rejected the Appellant's submission that the Minister's letter amounted to an admission of legal merit or an acknowledgement that the Appellant would have succeeded at trial. The isolated phrase "unduly restrictive" in the Minister's letter was viewed as a political position consistent with Party A's longstanding stance and not an endorsement that the court would have found a legal breach of Article 11 or that the Regulations were ultra vires. The court held that the phrase did not demonstrate causation from the litigation to the governmental decision.
Applying the causation analysis, the court found the incoming Government's publicly stated commitment to repeal so clear that it was reasonable to conclude the outcome would likely have occurred irrespective of the litigation. Thus the claim's discontinuance was attributable to extrinsic political reasons rather than the Appellant's legal claim. Given the absence of evidence that the litigation was causative of the repeal commitment or that the Appellant would have been likely to succeed at trial, the court concluded Judge Jarman had not erred in principle in exercising his discretion to make no order as to costs.
Holding and Implications
HOLDING: The appeal is DISMISSED; the court upheld Judge Jarman's exercise of discretion to make no order as to costs.
Implications:
- The Appellant will not recover its costs of the judicial review proceedings.
- The court emphasised that when a claim becomes academic because of an incoming government's pre-existing political decision to change policy, there is no prima facie entitlement to costs unless the claimant can show causation or that it would have been likely to win at trial.
- The decision does not purport to establish a new legal principle; it applies existing caselaw on causation and the exercise of judicial discretion over costs in public law litigation to the particular facts of this case.
Disposition
The court dismissed the Appellant's appeal against the costs decision. The judge's original order of no order as to costs remains in force.
Panel
This judgment was delivered by Judge Bean (lead), with Judge Jackson and Judge Laing agreeing.