Case No: C1/2011/0142

Neutral Citation Number: [2012] EWCA Civ 275
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
LEEDS COMBINED COURT
His Honour Judge Behrens
[2010] EWHC 2695 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/03/2012
Before :

LORD JUSTICE RIMER

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Between :

	THE QUEEN ON THE APPLICATION OF JOHN BROOM	Appellant	
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	THE SECRETARY OF STATE FOR JUSTICE	Respondent	

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(Transcript of the Handed Down Judgment of
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This judgment was made following the receipt of the written submissions of counsel:

Ms Flo Krause (instructed by Chivers Solicitors) for the Appellant
Mr Thomas de la Mare (instructed by the Treasury Solicitor) for the Respondent

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Judgment
Lord Justice Rimer : 
Background
1.	The appellant, John Broom, is a prisoner currently serving a discretionary life sentence imposed on him in 1992. He is at HMP Wakefield. On 3 September 2010 His Honour Judge Behrens refused his application for judicial review of a decision by the Safeguarding Children Panel made on 10 February 2010 refusing him continued possession of some 24 photographs which include images of members of his family (including his children) when they were children. They are photographs of which he had been allowed possession from his time in prison down to some time in 2008. There was no evidence that he had misused the photographs in any way or passed them to other prisoners. The children shown in them are now all adults.
2.	The appellant sought to appeal to the Court of Appeal against Judge Behrens’ order. Rix LJ refused permission on the papers on 13 April 2011. I granted permission following an oral hearing on 6 July 2011 at which the appellant was represented by Ms Krause. The appeal was to be based on two heads of challenge. I concluded my short judgment giving permission by saying:
‘6.	Whilst I would not wish to be taken as giving any encouragement to a belief on the part of the applicant that an appeal would be likely to succeed, I do regard the points that he wishes to argue as properly arguable and as taking the case across the threshold for the giving of permission to appeal. I therefore give permission.’
3.	Following the giving of permission, the respondent (the Secretary of State for Justice) reconsidered the Panel’s decision under challenge and determined that the photographs could safely be returned to the appellant, as they have been. A consent order was in consequence made on 2 November 2011 that provided in paragraph 1 that ‘the Appellant’s appeal shall be dismissed for the reasons set out in the attached Statement of Reasons.’ Paragraph 2 referred to a single Lord Justice ‘to assess whether a costs order should be made as to (a) the costs of the appeal; and/or (b) varying the costs order made by the Court below.’ The order provided for the lodging of written submissions on this issue, as they have been.
4.	The costs order made by Judge Behrens was as follows:
‘2)	The Claimant do pay the Defendant’s costs to be assessed if not agreed. The Claimant having the benefit of public funding, no steps shall be taken until there has been a determination of the amount which it is reasonable for the Claimant to pay pursuant to section 11 of the Access to Justice Act 1999, directions in respect of which stand adjourned generally to be restored on the written request of the defendant.
3)	The Claimant being or having been in receipt of services funded by the Legal Services Commission, there be a detailed assessment of the costs of that party.’
5.	In addition to making the point referred to in the first sentence of [3] above, the attached Statement of Reasons explained as follows:
‘4.	Principally, the reasons for the [Respondent’s] amended position are as follows:
•	Two of the individuals pictured in the photographs, now being above the age of 18 years, have now given their consent for the Appellant to retain these in his possession. Whilst Daniel and Louise Broom have not specifically consented, there is nothing to suggest that they do object to the Appellant having these photographs in his possession. The remaining individual is now deceased;
•	There is nothing in the photographs themselves of an inappropriate or provocative nature;
•	The Appellant has previously had these photographs in his possession for a number of years without incident;
•	There is no indication of any risk to his own family in respect of the Appellant’s offending behaviour;
•	There is no intelligence to suggest that the Appellant forms part of any network of child sex offenders within HMP Wakefield.’
Submissions
6.	Ms Krause submits that the appellant should be entitled to his costs of the appeal and below. As for the costs of the appeal, he has succeeded in it: but for his appeal, the photographs would not have been returned. She referred to the decision of the Court of Appeal in The Queen on the Application of Bahta and Others v. Secretary of State for the Home Department and Others [2011] EWCA Civ 895, also a ‘costs only’ case. That reflects that, in a case in which the claimant succeeds in his claim, the general rule is that he is entitled to costs, and the burden is on the defendant to show otherwise. In the course of his judgment, Pill LJ said:
‘64.	In addition to those general statements, what needs to be underlined is the starting point in the CPR that a successful claimant is entitled to his costs and the now recognised importance of complying with Pre-Action Protocols. These are intended to prevent litigation and facilitate and encourage parties to settle proceedings, including judicial review proceedings, if at all possible. That should be the stage at which the concessions contemplated in Boxall principle (vi) are normally made. It would be a distortion of the procedure for awarding costs if a defendant who has not complied with a Pre-Action Protocol can invoke Boxall principle (vi) in his favour when making a concession which should have been made at an earlier stage. If concessions are due, public authorities should not require the incentive contemplated by principle (vi) to make them. 
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 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.’
7.	In this case, the respondent’s concession appears to have been directly responsive to the giving of permission to appeal and it is said that there can be no good reason for not awarding the appellant his costs of the appeal. I add that, so it seems to me, the respondent’s reasons for deciding to return the photographs might be said in large part to reflect the points at the heart of the appellant’s case.
8.	As for the costs of the proceedings below, Ms Krause says that like principles apply. The substantive effect of the success on his appeal is that the appellant has succeeded on the claim. He should therefore also have his costs of the claim.
9.	Mr de la Mare, for the Secretary of State, submits that the particular circumstances that gave rise to the cost claims in the Bhata litigation provide no relevant guidance as to the disposition of the costs issue in the present case. In Bahta, the costs were incurred before reaching a hearing. In this case, the Secretary of State successfully defended the judicial review proceedings on every point. He has made a concession that has brought the appeal to a practical end but has not conceded the appellant’s case to be legally correct or that, had the appeal been fought out, it would have succeeded. He submits that the case is covered by the guidance given by Scott Baker J in R (Boxall) v. LB of Waltham Forest (2001) 4 CCL Rep 258 in relation to the awarding of costs in judicial review cases that have been resolved:
‘22.	Having considered the authorities, the principles I deduced to be applicable are as follows:
(i)	the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.
(ii)	it will ordinarily be irrelevant that the Claimant is legally aided.
(iii)	the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;
(iv)	at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.
(v)	in the absence of a good reason to make any other order the fall back is to make no order as to costs.
(vi)	the court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.’
10.	That guidance was endorsed by this court in R (on the application of Scott) v. London Borough of Hackney [2009] EWCA Civ 217, although Hallett LJ, at [51], said that a reasonable and proportionate attempt must be made to analyse the situation and determine whether an order for costs is appropriate and that a judge must not be too ready to adopt the ‘no order’ fall back position. This court also referred to the Boxall guidance in Bahta’s case (see [6] above).
11.	Mr de la Mare’s further submissions were that (a) the overriding objective has been furthered, in the interests of all parties and the court, by the Secretary of State’s decision to reconsider the case; (b) the merits of the appellant’s case are unclear, still less on all the grounds he has advanced, although the Secretary of State recognises that the fact that permission has been granted shows that there are proper arguments as to the legality of the Panel’s decision. This is not, however, a case where it is ‘plain and obvious’ where the legal merit lies; (c) were the appellant to have succeeded on a contested appeal, any success would be likely to have been on narrow grounds; (d) this is a case where, once the Secretary of State concluded that the return of the photographs was an acceptable outcome, the expenditure of further amounts of public money on a contested appeal would have been manifestly inappropriate.
Decision
12.	I start from the point that as the appellant has, for all practical purposes, succeeded in his appeal, he ought in principle to be entitled to his costs of the appeal unless the Secretary of State can show good reason otherwise. Whilst I accept that the outcome of a contested appeal would have been uncertain, I am not persuaded by the reasons advanced by Mr de la Mare that this is a case in which the appellant should not have his costs of the appeal. I hold that he should.
13.	I have more difficulty about the costs below. Whilst, as Ms Krause submits, it might be said to follow that practical success on the appeal ought also to carry the costs below, I am not persuaded that that is necessarily so. I accept that if the appeal had been fought and won, the appellant would probably have recovered his costs below, or at least those costs referable to the issue or issues upon which he succeeded in the appeal. My difficulty, however, is that I do not feel able to conclude that the appellant would obviously have won the appeal; and whilst I do not overlook Hallett LJ’s exhortations to try to form a view on the likely outcome, I consider there are limits to the extent to which a judge can safely travel down that road. It is often difficult to decide the outcome of an appeal even after hearing full argument from both sides. To endeavour to do so without such help in cases, like this one, falling between the ends of Boxall’s head (iv) spectrum is likely in many cases to lead to error; and one thing that can certainly be said about this case is that to date the appellant’s track record of success on the legal arguments has been poor. He wholly failed to convince Judge Behrens. I am not prepared to conclude that he would probably have been successful on a contested appeal; and when giving permission to appeal, I expressly gave him no encouragement to believe otherwise (see [2] above).
14.	Whilst therefore it might be said that my decision that the appellant ought at least to have his costs of the appeal could be said to carry the consequence that he should also have his costs below, I am unwilling to go that far. On the other hand, I regard it as unjust that, having substantively succeeded on his claim, he should be left with the burden of the hostile costs order that Judge Behrens made. I will therefore vary paragraph (2) of Judge Behrens’ order to provide that there is to be no order as to the costs of the proceedings below.
15.	I therefore order (i) that the respondent do pay the appellant’s costs of the appeal, to be the subject of a detailed assessment on the standard basis in default of agreement; and (ii) that as to the costs below, paragraph (2) of Judge Behrens’ order be varied to provide that there be no order as to costs.