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Many judicial review cases settle before a final hearing. Research by the Public Law Project indicates that 34% of claims settled before permission was granted; and 56% of claims were settled after permission was granted.
When settlement occurs lawyers will often turn their minds to costs. The old rule was that only in cases where it was ‘obvious' that the claimant would have won at the conclusion of the substantive hearing would the claimant get their costs; otherwise the normal position would be no order as to costs. This rule was derived from Scott Baker J's judgment in R. (Boxall) v Waltham Forest LBC (2001) 4 C.C.L. Rep. 258 at . Generally speaking, the Boxall rule was seen as unfavourable to claimants because very few cases can be said to be ‘obvious' winners at the point of settlement.
However, the Boxall rule changed as a result of the Court of Appeal's decision in R (Bahta) v Secretary of State for the Home Department  EWCA Civ 895 which took into account Lord Justice Jackson's view that claimants should be more readily entitled to their costs when cases settled. The court held that it would be for the defendant to justify why there should be a departure from the usual rule of costs to the winner where relief had been achieved, with compliance with the pre-action protocol being a significant factor.
A further departure from Boxall was signalled by M v London Borough of Croydon  EWCA Civ 595 at  -  which made clear that the usual principles of civil litigation costs will apply where judicial review claims settle. Accordingly, where a claimant has achieved all of the relief sought as part of the settlement, the claimant should get all their costs. However, if the claimant was only partially successful then it may be that no order to costs is more appropriate. These principles have been held to apply to statutory appeals in the asylum and immigration context - AL (Albania) v Secretary of State for the Home Department  EWCA Civ 710.
The problem that practitioners have encountered with this change is that many defendants still refer back to the original Boxall rule to justify not paying the claimant's costs. The Court of Appeal has recently addressed this in Emezie v Secretary of State for the Home Department  EWCA Civ 733. In that case, Sir Stanley Burnton said that Boxall ‘must now be considered no longer authoritative'. He confirmed that ‘the starting point now is whether the claimant has achieved what he sought in his claim'.
As such, Emezie marks the death knell of the Boxall rule and means that parties to a settled judicial review should never rely on Boxall when approaching costs. Since neither the claimant, defendant or judge at first instance in Emezie were aware of the new approach in M v Croydon, this case is a good example of the importance of all practitioners bringing themselves up to speed with the latest developments in case law.
 Public Law Project, Dynamics of Judicial Review Proceedings (2009), p33.