“In my judgment, the Claimants are right that it is wrong in principle for a party to use the CCO regime, in effect, as a proxy for the abuse of process jurisdiction. Similarly, it would be wrong for the court to impose a CCO in order to punish a party who has lawfully brought proceedings in this jurisdiction because the court thinks that they should have issued their proceedings in a different jurisdiction…. the imposition of a CCO would almost certainly have the effect of forcing the Claimants to abandon their claims. If the Defendant considered that the various reasons put forward … meant that the continuation by the Claimants of these proceedings would be an abuse of process, then the Defendant should have persisted with its strike out application.”
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.