The Supreme Court recommended that M. receive the benefit of the Legal Aid – Custody Issues Scheme for his appeal, but refused to reverse the High Court costs order against him.
The ruling, delivered on 30 June 2020, concerned costs and legal aid following the Court’s earlier dismissal of M.’s judicial review claim against the Parole Board and the Minister for Justice and Equality. In that substantive judgment, the Court held that the Minister lacked jurisdiction under section 2 of the Criminal Justice Act 1960 to grant parole to a prisoner detained in the Central Mental Hospital after transfer from prison.
M. sought a recommendation under the scheme for the appeal and asked the Supreme Court to replace the High Court order awarding costs against him with a limited costs award in his favour. His representatives said they had overlooked the scheme when the case was in the High Court. At the appropriate stage of the appeal process, however, they sought a recommendation and filed the required form and declaration of means.
The respondents did not seek their costs for the appeal and did not oppose a recommendation under the scheme. They opposed changing the High Court costs order, noting that M.’s pleadings there sought costs and did not refer to the scheme.
The Court granted the recommendation for the appeal because it had been sought at the appropriate time. It said the scheme was not an alternative to costs that litigants could choose after learning the result. In proceedings covered by the scheme, representatives must decide whether to seek its benefit or pursue costs, which may be higher if the litigation succeeds. The Court said changing course for an appeal was permissible, but waiting until the end of proceedings in either court was not.
The Court said it would be extremely difficult to accept that a genuine oversight explained the failure to seek a recommendation in the High Court, given that the judicial review concerned the personal liberty of a sentenced prisoner and the pleadings included a costs claim. It also said that an issue of general public importance, or clarification of the law, did not by itself justify departing from normal costs rules for an unsuccessful litigant. The issue in the case had ultimately been resolved through statutory interpretation.
The Supreme Court therefore made a recommendation under the scheme for the appeal and left the High Court order for costs against M. unchanged.