The Court of Appeal ordered Chubb European Group SE to pay the Health Insurance Authority (HIA) one third of its costs in a statutory application and all costs of a related judicial review, apart from the hearing costs of the judicial review appeal.
The costs judgment, delivered by Mr Justice Murray on 8 July 2020, followed appeals in two proceedings arising from an HIA enforcement notice under the Health Insurance Act 1994. In the statutory application, Chubb sought cancellation of directions in the notice. It obtained cancellation of a direction on appeal, after the High Court had refused relief. Chubb lost its appeal in the judicial review proceedings.
The Court said Chubb had won the “event” in the statutory application because it secured relief it could not have obtained without bringing the proceedings. But it had failed on the greater number of the issues it argued, which materially added to the time and cost of the case. The successful point—that the notice failed on its face to specify a contravention—received limited attention in the High Court, while the arguments on which HIA prevailed occupied most of the case.
The Court therefore directed HIA to recover one third of its costs in the statutory application, covering both the High Court proceedings and the appeal. It considered the issues sufficiently complex to justify allocating costs between the successful and unsuccessful parts of the case.
In the judicial review, Chubb argued that separate proceedings had been understandable and had not materially increased overall costs. The Court accepted that some uncertainty about the scope of the statutory application could explain why judicial review was brought. However, Chubb lost the judicial review arguments, and the proceedings had been treated separately in the High Court, including a full day spent opening their pleadings and affidavits. The Court assessed the judicial review hearing in the High Court as lasting one and a half days for costs purposes.
HIA was awarded the costs of the judicial review proceedings, except for the hearing of the appeal. The Court made no order for those appeal hearing costs because the issues in the two appeals were by then enmeshed and had been presented as a single appeal. HIA could still recover the judicial review appeal’s other costs, including work responding to the notice of appeal and written submissions.
The three judges also corrected a typographical error in an earlier paragraph of the appeal judgment. This judgment concerned costs and did not revisit the substantive appeal outcome.