COST BITES 9: FARES FAIR: IN JUDICIAL REVIEW PROCEEDINGS YOU CAN HAVE A “SCORE DRAW” AND EACH SIDE GETS NO COSTS
In United Trade Action Group Ltd, R (On the Application Of) v Transport for London & Anor  EWCA Civ 1026 the Court of Appeal upheld a decision that there be no order for costs between the parties in judicial review proceedings.
The claimant/appellant brought an action on behalf of London black cab drivers, arguing that the actions of a taxi company breached regulations governing the use of taxis in London. At first instance the claimant succeeded on one issue and a declaration was made accordingly. There was no appeal against the decision on that issue and the taxi company changed its method of operating to comply. The claimant did not succeed on the second action, that the taxi company was “plying for hire” and appealed that decision. The claimant did not succeed on appeal in relation to the substantive decision.
The claimant also appealed the decision to make no order for costs. That appeal was rejected by the Court of Appeal.
THE JUDGMENT ON COSTS IN THE COURT OF APPEAL
Lord Justice Bean
UTAG also seek permission to appeal against the decision of the Divisional Court to make no order for costs. Mr Matthias argues that having succeeded (albeit only on one of two issues) in establishing that Free Now was operating in an illegal manner UTAG should have been awarded either all their costs or a substantial proportion of them.
In refusing permission to appeal on the issue of costs the Divisional Court noted that there had been two issues under judicial review, (1) the operator issue and (2) the plying for hire issue. UTAG succeeded on the first issue, which overlapped completely with the part 8 claim where all parties (including Uber London Ltd and the App Drivers and Couriers Union, neither of which was a party in the judicial review) had agreed to bear their own costs. It lost on the second issue. In those circumstances the court took the view that these issues “cancelled each other out” and that it was appropriate to make no order for the costs of the judicial review. Like Singh LJ, I consider that this was an unappealable exercise of discretion and discloses no error of principle. I would refuse permission to appeal on the issue of costs.
Lord Justice Singh
I turn briefly to the issue of costs. I agree with Bean LJ that permission to appeal against the costs order should be refused. I would accept the distinction which was suggested by Mr Kolvin, between a claim for judicial review where there is a single decision which is challenged on more than one ground; and a case in which there are in substance two entirely different issues to be determined. In the former case, although costs decisions are always within the discretion of the court, it would not be surprising if the court decided that, if the resulting decision has been held to be unlawful, it does not matter that not all of the grounds of challenge have succeeded. In such a case the court might well award at least part of the costs to the claimant and, depending on the circumstances, might even award the whole of the costs even though the claimant has not succeeded on every point. That situation, however, is to be contrasted with the present, where there were two entirely separate issues which the Divisional Court had to decide. As Bean LJ has pointed out, the outcome on those two issues was different. The claimant succeeded on one; the defendant succeeded on the other. The court was therefore entitled, in the exercise of its discretion, to take the view that the outcomes had in effect cancelled each other out and that there should be no order as to costs.