Judicial Review proceedings, if successful, can sometimes lead to an inter-partes costs order being made or agreed, for which a Judicial Review costs schedule will need to be drafted and provided to the Paying Party if seeking to agree costs as part of the final order, or as part of an effort to negotiate costs.

What is a Judicial Review?

Judicial Review proceedings are a form of Public Law where the Court reviews challenges to decisions made by public bodies. The Administrative Court, part of the High Court, handles cases related to judicial reviews, statutory appeals, and extradition.

Judicial review may be sought when a Claimant believes that a public body has acted beyond its legal authority, failed to consider relevant factors, taken into account irrelevant matters, made an unreasonable decision, or breached procedural fairness by not following proper procedures or providing an opportunity to be heard.

Essentially, the purpose of judicial review is to ensure that public bodies operate within their legal limits, uphold the rule of law and adhere to their own policies. When issuing a claim for judicial review, the first step is to obtain permission from the Court to proceed to a final Judicial Review hearing, with any initial decision usually being made on the papers (which can subsequently be further challenged at an oral hearing).  If the Court grants permission, the review may lead to outcomes such as overturning the decision or issuing specific directions for how the body should act. The process of Judicial Review primarily addresses issues in public law, focusing on the legality of governmental actions rather than individual rights or private disputes.

What is the Purpose of a Judicial Review Costs Schedule?

As part of any successful action, an inter-partes costs order may be agreed between the parties, or ordered by the Court pursuant to the general civil rules as to costs under CPR 44.2(2)(a). In order to agree costs, the first step to take is to prepare a Judicial Review costs schedule, which may take the form of an N260, or informal Schedule of Costs. In England and Wales, a costs schedule is generally submitted as part of the proceedings in the run up to an interim or final hearing, particularly in situations where there are likely disputes to be had over liability for costs, or where one party seeks a court order for costs to be paid by the other.

If a general agreement is reached as to the principle of payment of costs by one party to another, this is also a time at which a Judicial Review costs schedule may be prepared and served, in an initial attempt to agree costs before incurring the further costs of commencing detailed assessment proceedings.

The primary purpose of any costs schedule, is to ensure transparency by providing a clear and itemised breakdown of the expenses incurred during the course of litigation. It assists the Court in assessing the reasonableness and proportionality of the claimed costs in line with the overriding objective of the Civil Procedure Rules (CPR). Additionally, it serves as a foundation for resolving disputes about costs, whether through negotiation or formal cost summary assessment.

If agreement cannot be reached on the contents of any Judicial Review costs schedule, then any subsequent Bill of Costs may be compared back to the informal costs schedule prepared, and it is therefore essential you ensure your costs are accurately claimed from the outset.

Costs in Judicial Review Cases

Legal costs play a significant role in Judicial Review cases, particularly when there are disputes over which party should bear the financial burden. If a Judicial Review is successful, the Claimant is generally entitled to recover their legal costs from the Defendant. However, if the claim fails, the Claimant may be responsible for the Defendant’s costs. The costs recovery process is governed by specific rules, namely CPR 44 to 47.

Costs in Judicial Review matters are also often very “front loaded”.  Due to the permission having to be obtained on the papers in the first instance, the preparation of the Claim Form for Judicial Review is akin to preparing for a Trial, in that evidential and authorities bundles have to be fully prepared and filed in support of a Detailed Statement of Facts and Grounds, setting out the particulars of the challenge.

Due to the nature of Judicial Review proceedings, legal aid can often be an additional feature in these types of proceedings due to the financial assistance provided to Claimants in immigration/asylum type disputes.  If legal aid funded matters are unsuccessful, then in certain circumstances costs (albeit at lower legal aid rates) can be recovered from the Legal Aid Agency.

What Should Feature in a Judicial Review Costs Schedule?

Form N260 can be used as a general guide, though this sometimes does not provide a sufficient level of detail to scrutinise the costs being claimed.  The Receiving Party may therefore provide in the alternative an informal Schedule of Costs or Bill of Costs so that issues as to reasonableness and proportionality can be considered on an item by item basis.

• For Claimants: The schedule will show the legal costs the Claimant has incurred in bringing the case, including Solicitor fees (for following the pre-action protocol, settling bundles for the proceedings and commencing litigation), Counsel’s fees (who often assist in advising and settling Grounds), and any other expenses (disbursements like Court fees, expert costs, etc).
• For Defendants: The Defendant (often a public authority or government body) often submits their costs schedule alongside the Acknowledgment of Service, which is filed alongside Summary Grounds of Defence, to claim the costs incurred in defending the Judicial Review up to that point.

Updated judicial review costs schedules may also be required before any subsequent oral permission hearing, to give an estimate of the anticipated costs of either party being successful.  This enables the High Court Judge to summarily assess any costs at the conclusion of the hearing.

If the claim proceeds to a substantive hearing (the main judicial review hearing) following granting of permission, then full costs schedules will need to be presented, outlining both parties’ incurred (and any anticipated costs) up to the conclusion of the proceedings.

CPR 44: Judicial Review Costs Schedule

In England and Wales, costs schedules must comply with the Civil Procedure Rules (CPR). CPR 44 refers to general rules on costs of civil litigation or civil cases, and in particular Practice Direction 44 Para 9.5(4) must be adhered to in compliance of costs schedule rules.  This stipulates that any costs schedule must be filed 24 hours before any interim hearing, and atleast 48 hours prior to any final hearing/Trial.

When considering the issue of who should pay costs of the proceedings at any hearing, the Court will take into account the discretion of CPR 44.2 which states:

CPR 44.2

(1) The Court has discretion as to –

(a) whether costs are payable by one party to another;

(b) the amount of those costs; and

(c) when they are to be paid. 

(2) If the Court decides to make an order about costs –

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) the Court may make a different order. 

CPR 44.3 specifically refers to the basis of an assessment of costs which means costs can be assessed on either the standard basis or the indemnity basis. 

CPR 44.3

(1) Where the Court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs –

(a) on the standard basis; or

(b) on the indemnity basis,

In either case, the Court will not allow costs that have been unreasonably incurred or are unreasonable in amount. 

Furthermore, CPR 44.3(2) states that when costs are being assessed on the standard basis, the Court should only allow costs that are reasonable and proportionate. And where there is any doubt on whether costs are reasonable and proportionate, then this doubt should be resolved in favour of the paying party (CPR 44.3 (2)(b)).  On an indemnity basis, the issue of proportionality falls away and doubt as to reasonableness falls in favour of the receiving party.

In judicial review cases, the “loser pays” principle generally applies, meaning the unsuccessful party may be ordered to pay the successful party’s reasonable costs. However, this is subject to judicial discretion, and protective costs orders (now called cost-capping orders) may limit the claimant’s liability in public interest cases.

Role of Costs Draftsman and Costs Lawyers

Given the complexity of judicial review proceedings, particularly when it comes to cost recovery on conclusion, the role of Costs Draftsmen and Costs Lawyers is invaluable. As experts in costs law, Costs Draftsman/Lawyers can provide clear and comprehensive judicial review costs schedules, ensuring all relevant costs are included.

These professionals also specialise in preparing Bills of Costs, negotiating cost disputes, and representing clients in Detailed Assessment Hearings. Their expertise is particularly beneficial in cases where a defendant wishes to contest the costs incurred during the judicial review process.

When costs disputes arise, the Defendant may seek to limit or reduce the total sum of costs claimed. This is particularly common in cases where the claimant is funded by legal aid. In such cases, costs draftsmen can help ensure that the claim is presented accurately and that all relevant costs are included.

How can ARC Costs Assist with Your Judicial Review Costs Schedule?

If you require any free initial advice, or our assistance with regards to any aspect of a judicial review costs schedule, please do not hesitate to contact us via the Contact Form below and one of the team will get in touch as soon as possible.

At ARC Costs we are an experienced team of experienced Costs Draftsman/Costs Lawyers with over 30 years of experience amongst our management team.  As independent experts, we can assist either Paying or Receiving Parties, and we have a wealth of experience in all kinds of costs disputes.

For Receiving Parties, we focus on the recovery of costs payable by a Paying Party through preparation of Costs Budgets (Precedent H), Statements of Costs (N260) and preparing Bills of Costs. 

We also provide costs negotiation and advocacy services for detailed assessment in all legal matters and assist with the recovery of inter-partes costs in publicly funded matters, as well as the recovery of legal costs from the Legal Aid Agency.

For Paying Parties, we negotiate to try and achieve you the maximum saving possible on any legal bill presented to you, and in the event that legal submissions are required, we are adept at preparing Points of Dispute and arguing your corner at any detailed assessment hearing.

The team can be contacted via email at info@arccosts.co.uk, or by telephone on 01204 397302. For more information on our services, please visit our services page here or find out about our speciality areas of expertise on our legal costs page.

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