Factual and Procedural Background
The Appellant was serving a life sentence with a minimum term expiring on 14 September 2022. The Respondent recommended and the Secretary of State accepted his transfer to open conditions. A Parole Board hearing was initially listed for 11 August 2022, but after the dossier became complete on 3 August 2022, the hearing was not relisted. [1][2][3][4]
The Appellant’s tariff expired without a hearing. The Respondent declined to prioritise his case in October 2022, despite the expiry of the tariff and the requirement for a speedy hearing. [5][6][7][8]
The Appellant commenced judicial review proceedings. The High Court found unlawful delay contrary to Article 5(4) of the European Convention on Human Rights, awarded £10,000 damages, and made declarations concerning the delay and refusal to prioritise the case. However, it made no order for costs. [9][10][11][12][13][14][15]
The Appellant appealed against the costs order. [16][17]
Legal Issues Presented
- Whether the principles concerning costs against courts and tribunals applied to the Respondent in a claim concerning administrative delay and Human Rights Act damages. [18][19][20][21][22]
- Whether the alleged missed opportunity to obtain an earlier substantive hearing justified making no order for costs. [23][24]
- Whether the position would differ if the Respondent had acted in a judicial or quasi-judicial capacity. [25][26]
Arguments of the Parties
Appellant's Arguments
- The approach in Davies was said to be incompatible with Articles 6 and 8 of the Convention, or disproportionate in its application. [27][28][29]
- The High Court was said to have been required by sections 6 and 8 of the Human Rights Act 1998 to act compatibly with Convention rights and to award costs as part of just satisfaction. [30][31][32]
- The Appellant argued that Davies did not apply to administrative delay by the Respondent and that the Respondent had unreasonably failed to concede an obvious claim. [33][34]
- The Appellant challenged the finding that the Respondent had remained neutral in the litigation. [35]
- The Appellant also argued that any reduction in costs for the missed opportunity would require particularly serious conduct. [36]
Respondent's Arguments
- The Respondent relied on the principles governing costs against courts and tribunals, including the approach in Davies and Gourlay. [37][38][39][40]
- The Respondent argued that the Appellant’s missed opportunity to secure an expedited hearing was relevant to the costs decision. [41][24]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Sturnham) v Secretary of State for Justice [2013] UKSC 23; [2013] 2 AC 254 |
Compensation for unlawful parole delay. |
Identified as the authority underpinning the damages awarded for the delay. [42][43][44][45] |
| R (Adams) v Parole Board [2022] EWHC 3406 (Admin) |
Referred to in connection with the Respondent’s participation and listing functions. |
Considered in the procedural history but not determinative of the appeal. [9][42] |
| R (Bate) v Parole Board [2018] EWHC 2820 (Admin) |
The Respondent may constitute a court for Article 5(4) purposes; lack of resources is not an answer to an Human Rights Act claim. |
Used in summarising the principles governing speedy hearings and damages. [46][43][12] |
| Davies v Birmingham Deputy Coroner [2004] EWCA Civ 207; [2004] 1 WLR 2739 |
Established principles concerning costs against inferior courts and tribunals, including neutrality and active participation. |
The Court held that the practice did not apply to this administrative-delay damages claim. [38][41][47][48][49][50][51][52][53][54] |
| R v Coroner for Lincoln ex p Hay [2000] Lloyd's Rep Med 264 (DC) |
Distinction between a judicial officer assisting neutrally and contesting a claim. |
Discussed as part of the development of the costs principles later considered in Davies. [55][56] |
| R (Touche) v Inner London North Coroner [2001] EWCA Civ 383; [2001] QB 1206 |
Considered whether a tribunal or coroner who participates and loses should bear costs. |
Explained as influencing the principles discussed in Davies. [57][58][59][60][61][62] |
| R (Gourlay) v Parole Board [2017] EWCA Civ 1003; [2017] 1 WLR 4107 |
The Davies approach applies to the Respondent when acting judicially or quasi-judicially and remaining neutral. |
The Court distinguished the present claim because it concerned administrative delay and damages, not merely a challenged judicial decision. [39][40][63][64][65][66][67][68][49][69][70] |
| Gudanaviciene v First-tier Tribunal (Immigration and Asylum Chamber) [2017] EWCA Civ 352; [2017] 1 WLR 4095 |
Considered arguments against the established costs practice. |
Referred to in the discussion of the Supreme Court’s treatment of the practice in Gourlay. [67] |
| Young v Bristol Aeroplane Co Limited [1944] KB 718 |
Principles concerning binding precedent. |
Contrasted with the non-binding, practice-based nature of costs decisions concerning lower courts. [71][72] |
| R (M) v Croydon London Borough Council [2012] EWCA Civ 595; [2012] 1 WLR 1267 |
The means by which a party’s lawyers are paid will rarely affect the right to recover costs. |
Supported the conclusion that legal aid status did not determine the costs outcome. [68][73] |
Court's Reasoning and Analysis
The Court treated the central issue as one governed by the Civil Procedure Rules and domestic costs authorities, rather than by the Convention arguments advanced in detail. [74]
The High Court’s findings showed that the relevant delay arose from administrative failures: after the dossier was complete, there was no active case management, and the case remained in a queue. The High Court had awarded damages against the Respondent, not the Secretary of State, indicating that the delay was not treated as resulting from a judicial or quasi-judicial decision. [75]
The Court explained that the Davies/Gourlay practice protects a court or tribunal that remains neutral when its decision is challenged. That practice did not extend to a claim in which the Respondent’s administrative failings caused unlawful detention and resulted in a damages award. The ordinary costs rules therefore applied, with the Respondent being the losing party on that aspect of the claim. [70][50][51][52][53][54]
The missed opportunity to obtain an earlier judicial review hearing was relevant to costs, but it did not justify making no order for costs. The Court considered the responsibility shared and the consequences uncertain. It therefore exercised the costs discretion afresh and imposed a 20% reduction. [23][24][36][25]
The Court further stated that, if the Respondent had been acting judicially or quasi-judicially and had committed a judicial act in good faith, section 9 of the Human Rights Act 1998 would have required any Article 5(5) damages award to be made against the Crown, with the Secretary of State as the appropriate joined person. [26][76]
Holding and Implications
APPEAL ALLOWED. The High Court’s no-costs order was reversed. The Respondent was ordered to pay the Appellant’s costs of the judicial review claim, subject to detailed assessment if not agreed and a 20% reduction for the missed opportunity. [77][78]
The direct consequence was that the Appellant became entitled to recover the reduced costs from the Respondent. The decision applied existing costs principles to the particular distinction between administrative delay and judicial or quasi-judicial decision-making; no broader new precedent was stated. [51][52][54][78]