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M v London Borough of Croydon [2012] EWCA Civ 595 - 8/05/12


Costs on a settled Judicial Review

The Court of Appeal gave general guidance on costs issues in relation to Administrative Court Cases, which settled on all issues save as to costs. The court set out three scenarios.

In a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement it is hard to see why the claimant should not recover all his costs, unless there is some good reason to the contrary. The claimant can, in the absence of special circumstances say that he has been vindicated and as the successful party, that he should recover his costs (R (on the application of Bahta) v Secretary of State for the Home Department [2011] C. P. Rep 43 applied.)

Whilst in a case where the claimant had only succeed in part following a settlement, the Court of Appeal held that a court will be able to form a view by determining questions such as how reasonable the claimant was in pursuing the unsuccessful claim, how important it was compared with the successful claim, and how much the costs were increased as a result of the claimant pursuing the unsuccessful claim. Where the parties have settled the claimant's substantive claims on the basis that he succeeds in part, but only in part, there is often much to be said for concluding that there is no order for costs: R (Scott) v LB Hackney [2009] EWCA Civ 217. In some cases it may help to consider who would have won if the matter had proceeded to trial: R (Boxall) Waltham Forest LBC (2001) 4 C.C.L.R. 258 QBD.

In the third scenario where there has been some compromise which does not actually reflect the claimant's claims, the court is often unable to gauge whether there is a successful party in any respect, and, if so, who it is. In such cases the default position should be no order for costs.