CPR 38: Khan v Governor of HMP The Mount & Ors  Costs LR 1137
Can the General Rule to Pay Costs be Deviated From?
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Notice of Discontinuance (CPR 38) Costs and Judicial Review Costs
It should be noted that the normal consequence of filing a CPR 38 Notice of Discontinuance results in a liability to pay the Defendant’s costs up to the date of the Notice, unless the Court orders otherwise as per CPR 38.6(1). For more information on Notice of Discontinuance costs, see here.
In relation to Judicial Review costs, if a case has been litigated, then the unsuccessful party will normally be required to pay the successful party’s costs. This means that costs are usually recoverable inter-partes and legal costs and disbursements can be recovered. For more information regarding Judicial Review costs, see here.
Khan v Governor of HMP The Mount and Others  Costs LR 1137
The overall decision in this case was that there was no good reason to depart from the usual rule of costs after discontinuance of the Claimant’s claim for Judicial Review.
The Claimant was serving a prison sentence of ten years. He had a serious health condition which meant that he required regular blood transfusions. Managing this illness meant ongoing treatment in order to prevent serious injury to his organs or even loss of life. However, the type of treatment required meant that it was necessary he was in open conditions whereby there was less risk of the PICC line being used to administer the medicine being dislodged by close contact with other prisoners.
The Claimant’s brother sought that the Claimant was held on home detention curfew, re-categorised, or placed on early release to allow for effective treatment. The Prison Governor refused these requests, and the Claimant also stopped taking his oral medicine.
Within the Pre Action Protocol letter sent to the Defendant by the Claimant’s Solicitors, it was stated that the PICC was the only other form of treatment available to him. This statement was then repeated by the Claimant’s Solicitors in the Grounds for Judicial Review. Within the same, it was sought that the Claimant’s request to be re-categorised to Category D open conditions was reconsidered.
The Grounds of Defence submitted that the case had no merit as it was centred on the assertion that the Claimant required a PICC line, and there was no evidence to support this assertion. It was averred that the Claimant’s medical records showed that the oral medication was controlling the Claimant’s condition effectively.
Due to COVID19, the Claimant was a vulnerable person, and thus the Claimant’s Solicitors sought an early release on behalf of the Claimant. This request was refused as the Defendant held that the Claimant was being held under the appropriate ‘shielding’ conditions. Following this refusal, the Claimant’s Solicitors sought consent from the Defendant to amend the Judicial Review proceedings to include their failure to grant an early or compassionate release to the Claimant. The Defendant did not consent to the amendment as they believed it raised a new issue which needed to be addressed by a new claim.
A hearing was due to take place on 30 April 2020. However, as COVID 19 had prevented all transfers within prisons including prisoner transfers to open conditions, the Claimant sought to vacate the Judicial Review permission hearing as the events in place with COVID 19 meant that the relief being sought by the Claimant was no longer available. The application to vacate was refused, and the Claimant subsequently served a Notice of Discontinuance on 27 April 2020, including a request for the Court to deviate from the normal costs rules following a Notice of Discontinuance, and sought an Order that all parties bear their own costs on the basis that there had been a material change of circumstances arising due to the COVID 19 pandemic.
The Defendant however, raised issues stating the Claimant had abused the process and sought that the Notice of Discontinuance was set aside.
In deciding their approach, the Court assessed CPR 38, in particular, CPR 38.4 and declined to set aside the Notice of Discontinuance as the Court believed the decision to discontinue had been made in good faith after recognising that a Judicial Review was likely to fail.
When deciding on costs, the Court considered the case of Brookes v HSBC Bank plc  3 Costs LR 285 and found that there was no good reason to depart from the normal rule of costs as per CPR 38.6. The Claimant was therefore ordered to pay the Defendant’s costs as there had been no change on the merits of the case fundamentally, namely that the medical evidence did not support that the Claimant could not receive the medical treatment he needed whilst detained.
A more detailed judgment can be found here.
This case shows that a good reason needs to be provided for the Court to exercise its discretion in departing from the general rule on costs in a case of discontinuance of the claim (CPR 38). The judgment in this case, referred to the case of Brookes v HSBC Bank plc  EWCA Civ 354;  3 Costs LO 285 where it was stated that it is the Claimant’s burden to demonstrate a good reason to depart from the general rule on costs, and that if it is clear that the claim would have failed then this is a factor which will be used in favour of applying the general rule.
It is therefore important for Solicitors acting for a Claimant to ensure there are sufficient merits of the claim throughout its process, in order to prevent a liability for costs if new evidence comes to light requiring the filing of a Notice of Discontinuance. It is important to have a good reason, and the burden is on the Claimant’s Solicitors to bring this good reason forward and demonstrate it well in order for a no costs order to be made by the Court. Of the reason for discontinuance is due to the lack of merits of the claim, which have been evident from the early stages of the litigation, the Court is likely to order costs to be paid to the Defendant.
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