Factual and Procedural Background
This was a costs appeal in judicial review proceedings. The proceedings were compromised after the Respondent made a further decision on the Appellant's entry-clearance application, leaving the Upper Tribunal to decide costs; Judge Hoffmann made no order as to costs in a written ruling dated 9 July 2025. [Para 25]
The Appellant had applied for entry clearance as a visitor on 30 October 2024, and the application was refused on 28 November 2024. After a pre-action protocol letter dated 5 December 2024, the Respondent agreed on 19 December 2024 to withdraw the refusal and reconsider the matter within three months, absent special circumstances. When no further decision was made by the stated deadline, the Appellant's representatives chased the matter on 13 March 2025 and warned that proceedings would follow; judicial review was then commenced on 20 March 2025. The Respondent made a new decision on 23 April 2025, the claim was withdrawn, and costs were left for determination on paper. [Para 28][Para 29][Para 33][Para 37]
Legal Issues Presented
- Whether the Appellant should have served a further pre-action protocol letter before commencing the judicial review claim. [Para 54]
- Whether the email of 13 March 2025 was, in substance, a pre-action protocol letter. [Para 54]
- Whether the appeal could be distinguished from R(Nisar). [Para 54][Para 55]
Arguments of the Parties
Appellant's Arguments
- The Appellant contended that the judge was wrong to refuse costs because he had obtained the practical relief he wanted: withdrawal of the first refusal and a fresh decision. [Para 48]
- It was argued that the original pre-action letter of 5 December 2024 was sufficient and that no second pre-action letter was required. [Para 48]
- Alternatively, the email of 13 March 2025 was said to be treated by the Respondent as a pre-action protocol letter and to be such in substance. [Para 52]
- The Appellant also submitted that the case was not covered by R(Nisar) because the substance was different. [Para 52]
Respondent's Arguments
- The Respondent submitted that the judge had been right to make no order as to costs. [Para 53]
- It was said that there were material differences between the threatened action and the claim later brought, so the Appellant had not complied with the pre-action protocol. [Para 53]
- The Respondent further argued that there was no material difference between this case and the second appeal in R(Nisar), and that the internal correspondence did not alter that position. [Para 53]
- The Respondent maintained that the issue was simply whether failing to make a decision within the aimed three-month period was unlawful, and it was not. [Para 53]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Roache v News Group |
The Court of Appeal will interfere with a costs order only where the judge erred in principle, failed to consider relevant matters, considered irrelevant matters, or the decision was plainly wrong. [Para 57] |
Used as the governing appellate restraint principle when reviewing the no-order-as-to-costs decision. [Para 57] |
| R(M) v Croydon London Borough Council |
In compromised judicial review proceedings, the usual civil principle is that a successful party is entitled to costs, but the outcome depends on which party was more successful and on the particular facts of the case. [Para 46][Para 62] |
The judge and the Court of Appeal relied on it to explain that costs turn on the facts, and to note that an unusual feature may justify departing from the usual order. [Para 46][Para 62][Para 79] |
| R(Nisar) |
In a similar costs appeal, an "aim to" decision did not create a legal obligation, delay was not manifestly unreasonable, and there was no basis to interfere with a no-costs order. [Para 52][Para 53][Para 63] |
Applied as the closest comparator; the Court found no material distinction and followed its reasoning. [Para 52][Para 53][Para 69][Para 75] |
| R (Ullah) v Secretary of State for the Home Department |
Delay had not reached the stage of being so excessive as to be manifestly unreasonable. [Para 63] |
Cited within R(Nisar) as part of the reasoning supporting the conclusion that the delay here was not unlawful. [Para 63] |
Court's Reasoning and Analysis
The Court began by applying the orthodox appellate restraint governing costs appeals: it would not interfere unless there had been an error of principle, a failure to take account of relevant matters, consideration of irrelevant matters, or a plainly wrong result. [Para 57]
The Court then treated R(M) as confirming that, in compromised judicial review claims, costs depend on the facts and on which party has been more successful overall. It also treated R(Nisar) as the most relevant comparator because it dealt with a similar "aim to" decision and a similar complaint about delay. [Para 62][Para 63]
On the first issue, the Court held that the 5 December 2024 letter did not satisfy the later claim because it challenged the original refusal, whereas the judicial review challenged the later failure to decide within three months. The earlier letter therefore did not foreshadow the basis of the claim that was actually brought. [Para 44][Para 69]
On the second issue, the Court held that the 13 March 2025 email was not a valid pre-action protocol letter because it did not identify the legal basis of the complaint, did not give 14 days to respond, and there was no sufficient urgency to justify a shorter timescale. [Para 52][Para 69]
On the third issue, the Court held that the case was not materially distinguishable from R(Nisar). The internal correspondence showed only ordinary workload and staffing difficulties, which did not remove the need for a proper pre-action protocol letter or make the delay unlawful. [Para 63][Para 75]
Having accepted that the Appellant obtained the practical relief sought but had not complied with the pre-action protocol, the Court held that the judge was entitled to make no order as to costs and that there was no proper basis to disturb that discretion. [Para 64][Para 76]
Holding and Implications
Appeal dismissed. The no order as to costs made below remained in place, and the Court also indicated that the Respondent's failures did not justify overturning the costs discretion exercised by Judge Hoffmann. [Para 76][Para 85]
The judgment's practical message was that a party who has achieved the substantive outcome sought may still fail on costs if the pre-action protocol was not properly followed, and that parties should be more willing to resolve costs by agreement in judicial review cases. [Para 79]