The Court of Appeal has awarded the respondents the costs of an appeal that it had dismissed in July 2021, ruling that the appellant had not shown a reason to depart from the usual rule that costs follow the event.
The costs ruling, delivered by Ms Justice Costello on 17 December 2021, followed the court’s earlier dismissal of the appellant’s appeal against a High Court order. The High Court had granted him judicial review of a decision by a judge of the Circuit Court’s Northern Circuit and sent the underlying proceedings back to that court to be heard by a different judge.
After the appeal was dismissed, the Court of Appeal indicated that its provisional view was that the appellant should pay the appeal costs. It invited written submissions on the proposed order. The appellant argued that his poverty meant no costs should be ordered against him. He also submitted that a costs order would breach rights under the European Convention on Human Rights, the EU Charter and the Constitution. He made further allegations concerning his treatment, his relationship with the first respondent and his children, and responsibility for his impoverishment. These were the appellant’s submissions, not findings made in the costs ruling.
The first respondent filed no submissions. The second respondent argued that the usual rule should apply because the respondents had succeeded on the appeal. It also said the appellant had been warned that it would seek costs if he continued. The respondent referred to a letter offering not to seek costs if he withdrew the appeal by 1 May 2021, followed by a reminder dated 19 May. The appellant proceeded with the appeal.
Justice Costello said the appellant had not addressed the factors in section 169 of the Legal Services Regulation Act 2015 or identified special circumstances under the Rules of the Superior Courts. Instead, she said, his submissions effectively sought to reargue the appeal’s merits, which could not ground a costs decision made on the basis that the court’s earlier decision was correct.
She ruled that impecuniosity alone was not a basis to refuse costs against an unsuccessful litigant. The ruling also noted that the appellant had not qualified for free legal aid due to his resources and said the cases he relied on were inapplicable to his circumstances.
The court ordered the respondents’ appeal costs. Justices Whelan and Murray agreed with the ruling and the order. The costs decision did not revisit the underlying judicial review outcome.