UK Law and Practice Contributed by: Charles Brasted, Julia Marlow, Andrew Eaton and Fraser Eccles, Hogan Lovells International LLP
14. Costs 14.1 Mechanisms to Protect Claimants From Excessive Costs A claimant may apply to the court for a costs capping order (CCO). A CCO is an order that removes or limits the liability of a party to the proceedings to pay another party’s costs. A court may only grant a CCO if it is satisfied that the judicial review proceedings are “public inter- est proceedings” and that, if a CCO is not made, the claimant would no longer continue with the case and that it would be reasonable for them to decide not to do so. The court may also include “cross-cap” , limiting the amount of costs the defendant would be liable to pay the claimant if the claim succeeds. 14.2 Public Interest Costs The general rule is that the unsuccessful party will be ordered to pay the costs of the success - ful party. The court has discretion, however, to depart from this general rule if it is appropriate to do so. When assessing the appropriate order to make as to costs, a court is likely to consider the extent to which the claimant has obtained the relief that it sought. However, where a claim is unsuccess - ful in full or in part, a court may also take account of its nature and purpose when assessing costs. An unsuccessful claim brought partly or wholly in the public interest, may, depending on the cir - cumstances, result in a restricted or no order for costs being made (R (Davey) v Aylesbury Vale District Council[2007] EWCA Civ 1166). 14.3 Wasted Costs The courts may order, pursuant to Section 51 SCA 1981, that a legal representative must meet the whole or part of any wasted costs (or disal - low the payment of such costs, as the case may
be). For these purposes, “wasted costs” means “any costs incurred by a party (a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other repre- sentative or any employee of such a representa- tive; or (b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.”
15. Appeals 15.1 Right to Appeal
Various decisions of the Administrative Court during judicial review proceedings are subject to appeal. Appeals are governed by CPR Part 52. The test for permission to appeal is whether the appeal would have a real prospect of suc - cess or there is some other compelling reason why the appeal should be heard (CPR 52.6(1)). If the Administrative Court refuses permission to apply for judicial review at an oral hearing, the unsuccessful claimant can apply to the Court of Appeal for permission to appeal (CPR 52.8(1)). An appeal against the refusal of permission to apply for judicial review must be filed with the Court of Appeal within seven days of the date of the decision, unless the Administrative Court sets a different timetable (CPR52.8(3)). If the court deemed the application “totally with- out merit” on the papers (and so the claimant has no right to request a renewed oral hearing), the claimant can apply directly to the Court of Appeal for permission to appeal (CPR 52.8(2)). In this case, the seven days begins from the date of service of the order, not the date of the deci - sion. The Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review, in which case the application
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