In setting the reciprocal cap, it is necessary to bear in mind that in judicial review a claimant’s costs can generally be expected to be higher than a defendant’s (assuming representation of equivalent seniority). This is because the preparatory work of collating the evidence supporting a claim and of formulating the submissions to advance it is usually (though not always) more time-consuming than the work of producing responsive submissions and evidence.
Prior to commencement of these public interest judicial review proceedings the parties had agreed that they recoverable costs on each side would be limited to the sum of £3,000. The proceedings were ultimately dismissed and the Appellant was ordered to pay 67% of the SSHD’s capped costs i.e. £2,000.
The Appellant appealed the substantive decision, unsuccessfully, to the Court of Appeal.
The SSHD cross appealed the order for costs on grounds that the judge erred in law by applying the reduction of 33% to the capped rather than the “much higher” actual costs of the SSHD, when calculating the amount of costs to be paid.