I recently received a solicitor’s instruction to prepare a claim for costs on judicial review. The solicitor mentioned that there was another JR for the same client but she understood that nothing could be claimed because permission was refused. But this isn’t the case, at the very least you can claim the issue fee and any other disbursements incurred (not generally counsel’s fees, other than for advice on merits).
Even before the Lord Chancellor was forced to revoke and replace the original regulation 5A of The Civil Legal Aid (Remuneration) Regulations 2013 (as amended) on conditional payment of judicial review, following the successful challenge by Ben Hoare Bell and others in 2015 (the JR of JR, as it was known), it expressly allowed providers to claim disbursements (except counsel fees) properly incurred (reg. 5A(2)(a)). Again, even before 2015, the LAA’s guidance also stated the same for interim relief (now expressly provided for at reg. 5A(3)(c)), as well as pre-action and investigative work, presumably because reg. 5A(1) provides that the regulation only applies to payment of making an application.
So, even if the application for judicial review concludes upon being refused on papers, you can still always claim:
- Pre-action work (under Legal Help, and/or the Certificate from the date it was effective during this stage)
- Investigative work including counsel’s fee for opinion on merits
- Disbursements (except counsel fees, but see above) e.g. court issue fee, interpreters’ fees, travel expenses, and fees of experts urgently instructed to comply with the High Court and Upper Tribunal’s rigorously applied requirement that evidence must be adduced on issue or as soon as it can be obtained
- Interim Relief costs
Furthermore, reg. 5A(1) specifies that the application is issued, so if you prepare the application but do not actually issue, then regulation 5A does not apply and you are entitled to be paid everything regardless.
The changes made in 2015 allowed automatic entitlement to payment where permission was not granted but:
- permission was refused, or no decision made, because the defendant withdrew the decision being challenged in the JR – clarification was given in 2019 that this includes when the decision is withdrawn after permission is refused on papers and the JR moves beyond this i.e. to seek an oral hearing for reconsideration
- the court ordered an oral hearing to consider whether to give permission for JR, or to give permission to appeal against the refusal of permission, or to hear that appeal
- the court ordered a rolled-up hearing
If the matter does not fall into the above scenarios, then if the court did not refuse permission on paper, but did not grant it either, the LAA still has discretion to pay all of the costs. It was also clarified in 2019 that this discretion includes where permission has been refused on papers but the JR moves beyond this i.e. to seek an oral hearing for reconsideration. The regulations prescribe that the LAA must take particular account of:
- the reason why no inter partes costs order or agreement was obtained;
- the extent to which, and why, the outcome sought was achieved; and
- the strength of the application for permission at the time it was filed, based on the law and on facts which the provider knew or ought to have known at the time.
A ‘JR Discretionary Payment Req’ should be submitted via a Case Enquiry on the CCMS case – a document request for any supporting paperwork will be made. Along with a guide on applying for discretionary payment, there is a pro forma letter on the LAA website for paper certificates, and the information therein can be adapted for submissions made in the Case Enquiry on CCMS www.gov.uk/government/publications/judicial-review-discretion-pro-forma.