The High Court has reserved the question of costs in a judicial review case until the full application is heard, declining the applicant’s request for an award at the leave stage.
In a judgment delivered on 30 November 2010, Mr Justice Ryan considered the applicant’s costs application after granting her leave on 5 November to challenge a decision of the Refugee Appeals Tribunal. The substantive case seeks to have that decision quashed and the applicant’s appeal remitted for fresh consideration. The court did not decide that challenge in this costs judgment.
The applicant accepted that costs are normally reserved to the judge hearing the substantive application. Her counsel argued that she had met the substantial-grounds threshold applicable in asylum cases, that the court rules required an award, and that it was reasonable and just to grant costs. Counsel also relied on the respondents’ refusal to have a “telescoped” hearing, combining the leave application and the substantive case.
Mr Justice Ryan said it was unclear whether the leave application counted as an interlocutory application under the relevant costs rule. Even if the rule applied, he considered it was not possible to decide liability for costs justly at this stage. The eventual outcome of the judicial review was likely to be relevant to who should bear the costs, he said, although the court could in appropriate circumstances award costs at the leave stage.
The judge also rejected the argument based on the respondents’ refusal of a combined hearing. He said they were entitled to proceed as they did, and the grant of leave did not make that choice wrong.
The court made no costs award on this application. It reserved costs to the trial judge who will hear the full judicial review, following the general practice described in the judgment.