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09 NOV 2011

R (Bahta & Ors) v Secretary of State for the Home Department [2011] EWCA Civ 895

Judicial review – procedure – costs – Boxall rules – pre-action protocol – consent orders

A successful claimant in judicial review proceedings is entitled to their costs even where the case has been resolved before a final hearing. This is particularly the case where the defendant has failed to comply with the pre-action protocol. 
26 July 2011
Court of Appeal (Civil Division)
Pill LJ; Sullivan LJ; Hedley J 

(1) Filmon Bahta and other appellants (A) appealed refusals to make cost orders in their favour despite favourably resolving their claims before a contested court hearing. The Secretary of State had failed to comply with the judicial review pre-action protocol due to a pending Supreme Court decision which related to A’s applications for permission to work in the United Kingdom. In the end, A’s cases were resolved by the Secretary of State for “purely pragmatic reasons” and the applications were withdrawn with consent. A applied for their costs and in each case this was refused because it was not “plain and obvious” that the cases would succeed as derived from R (Boxall) v Waltham Forest LBC (2001) 4 CCL Rep 258. The issues on appeal were (1) whether the Boxall rules should be reconsidered in light of the Review of Civil Litigation Costs: Final Report (‘the Jackson Report’) and due to the importance of the pre-action protocol in judicial review proceedings and (2) whether the Court had jurisdiction to hear the appeal.

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