Civil legal aid lawyers taking judicial review cases have frequently come up against the Boxall principle (R (Boxall) v Waltham Forest LBC 21 December 2000 (2001) 4 CCL Rep 258), which has been applied as meaning that costs should not be awarded in cases that settle unless it is obvious which side would have won at a contested trial.
The effect in practice of this has been that public authorities have been able to settle or substantially concede cases but avoid paying costs.
The recent judgement of the Court of Appeal in Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors  EWCA Civ 895 reviewed the rule in Boxall, noting that it pre-dated both the introduction of the Judicial Review Pre-Action Protocol and the Jackson Report, and held that
61. In the case of publicly funded parties, it is not a good reason to decline to make an order for costs against a defendant that those acting for the publicly funded claimant will obtain some remuneration even if no order for costs is made against the defendant. Moreover, a culture in which an order that there be no order as to costs in a case involving a public body as defendant, because a costs order would only transfer funds from one public body to another is in my judgment no longer acceptable.
65. When relief is granted, the defendant bears the burden of justifying a departure from the general rule that the unsuccessful party will be ordered to pay the costs of the successful party and that the burden is likely to be a heavy one if the claimant has, and the defendant has not, complied with the Pre-Action Protocol. I regard that approach as consistent with the recommendation in paragraph 4.13 of the Jackson Report.
For detailed analysis of the case, see the Nearly Legal and Free Movement blogs.
The effect is that it is now more likely that costs will be awarded when a case is settled or withdrawn by consent as well as when it succeeds at trial. Given that – as the Court of Appeal noted – civil legal aid rates have not increased since 1994 (and are shortly to be cut by 10%), the increased availability of inter partes costs is a welcome development.
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